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United States v. New York City Department of Education

United States District Court, S.D. New York

January 8, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants, LISA-ERIKA JAMES, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION et al., Defendants. ANTHONY RICCARDO, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION et al., Defendants.

          ORDER

          Lewis A. Kaplan United States District Judge

         The defendants in these actions previously moved for summary judgment. In so doing, they submitted a statement under Rule 56.1 of the Local Civil Rules of this Court containing 341 paragraphs of proposed material facts that they asserted were not genuinely in dispute [16-cv-4891, DI-72]. The plaintiffs filed a joint response to the defendants' statement in which they agreed that a substantial number of these facts were not in dispute, either by asserting that they were undisputed or by failing to dispute them in substance [16-cv-4891, DI-79].

         In view of the parties' inability to reach any meaningful stipulation of facts to shorten the trial and render the facts more readily understandable to the jury, the Court has prepared the attached draft of a statement of undisputed acts (the "Draft Statement") from the parties' Rule 56.1 statements. Subject to the following provisions of this order and the proceedings contemplated hereby, the Court intends to enter a further order, pursuant to Fed.R.Civ.P. 56(g), determining that the propositions contained in the Draft Statement (or any amendment thereof in light of subsequent comments by the parties) that in fact was undisputed at the time of plaintiffs' response to defendants' Rule 56.1 statement are not genuinely in dispute and are binding on the jury although they are to be considered in the context of all of the evidence. The following additional points are appropriate:

         1. The point of making a Rule 56(g) determination is to eliminate needless proof of facts that are not genuinely in dispute and thereby to tiy the case more efficiently. In principle, a Rule 56(g) determination could foreclose the presentation of additional evidence on an undisputed fact. The Court does not expect to carry that principle to its logical extreme. It anticipates that some witnesses may have occasion to mention undisputed facts that are subjects of the Rule 56(g) determination in order to maintain continuity of narrative or for other sensible purposes. But it does expect, depending upon the circumstances, to foreclose needless repetition and cumulative proof.

         2. The Court has considered the parties' contentions that additional evidence may place particular undisputed facts in a different light. But that is not a sufficient excuse for refusing to stipulate to so much as is undisputed, Nor is it a sufficient reason not to enter a Rule 56(g) order.

         3. In order to conform to the text of the parties' Rule 56.1 statements, the Draft Statement contains some factual propositions stated in the present tense notwithstanding that the parties' agreement that the factual propositions were undisputed occurred some time ago and spoke only with respect to the period up to the date of the parties' agreement, i.e., the date of plaintiffs' response to defendants' Rule 56.1 statement and not beyond. It therefore is possible that some such propositions are not accurate with respect to subsequent dates.

         This possibility might be dealt with by redrafting each of those present tense propositions to make clear the time period as to which each has been agreed to be accurate. The Draft Statement has not taken that approach in order to conform the text as closely as possible to the parties' Rule 56.1 Statements. Rather, the Court anticipates instructing the jury that factual propositions contained in the Final Statement that speak in the present tense were true at all times relevant to these cases but that any question or concern as to whether they remain true as of the time of trial is immaterial and should not be considered by the jury. But the Court solicits the parties' views as to the best method of handling this concern.

         4. The Court understands that there may be objections to the admissibility of particular propositions, e.g., on grounds of relevancy, hearsay, etc. Except as set forth below, nothing in this order or in the Draft Statement forecloses any such objections.

         In light of the foregoing, the parties on or before January 16, 2020 shall file written statements containing all of their comments responsive to paragraph 3 and all of their objections to admissibility of particular propositions in the Draft Statement. Any objections to admissibility not included therein shall be deemed forfeited.

         If any comments or objections are timely filed, the Court will hear argument on January 23, 2020 at 10 a.m.

         SO ORDERED.

         UNDISPUTED FACTS

         Prior proceedings have established that the facts set forth below are undisputed. The jury is obliged to accept them as true for purposes of this action.

         Certain of the facts stated below are couched in the present tense. For example, paragraph 20 states that "Formal and informal observations are rated either Unsatisfactory or Satisfactory." In considering facts so stated, it has been determined that those facts were true at all times relevant to these actions up to and including late 2013. Any question or concern as to whether any such fact remained true after that date or remains true now is immaterial and should not be considered by the jury.

         I. Pan American International High School at Elmhurst

         1. Pan American International High School at Elmhurst ("Pan American"), a New York City Department of Education ("DOE") high school is part of the International Network, which is a network of fourteen schools with a specific English as a Second Language ("ESL") model. Ninety-nine percent of the student population are native Spanish speakers. Pan American was also part of the Children's First Network ("CFN") 106. Plaintiffs' Response and Counter-Statement of Material Facts Under Local Civil Rule 56.1(b) (hereinafter "Rule 56.1 Response") ¶ 1. See also Exs. I at 35, 77; P at 18; D at 81; L at 23; S-V.

         2. CFN 106 was a support group for 25 schools, including Pan American. Rule 56.1 Response ¶ 2. See also Exs. D at 36; L at 15.

         3. During the 2010-11 and 2011-12 academic years, the principal Pan American of was Marcella Barros. Rule 56.1 Response ¶ 5.

         4. After Ms. Barros left Pan American, Minerva Zanca was appointed as acting principal of Pan American. She held that position from August 2012 to June 2015. Rule 56.1 Response ¶ 6. See also Exs. D at 46-47; G at 20; T at USA 000282; U at USA 000304.

         II. Pan American's Administrators

         (a) Defendant Minerva Zanca ("Principal Zanca")

         5. Defendant Minerva Zanca was appointed as principal of Pan American, in an interim acting basis, at the start of the 2012-13 school year. Rule 56.1 Response ¶ 11. See also Exs A at 62; F at 36-37; I at 60-65; W.

         6. On April 4, 2013, following a C-30 process, Ms. Zanca was appointed as principal of Pan American. Rule 56.1 Response ¶ 12. See also Exs. I at 60-65, 90-93; W; X.

         7. Prior to becoming principal of Pan American, Principal Zanca had served as an assistant principal ("AP") for two years, a guidance counselor and teacher for a combined total often years, and a Spanish language teacher for twelve years for approximately 24 years of DOE service prior to becoming Principal. Rule 56.1 Response ¶ 13. See also Ex. F at 11.

         8. Ms. Zanca was the principal for Pan American for the academic years 2012-13, 2013-14 and 2014-15. She served as acting principal until April 2013. Rule 56.1 Response ¶ 16. See also Exs. E at 46-47; G at 20.

         (b) Defendant Juan Mendez ("Superintendent Mendez")

         9. Superintendent Mendez began working for the DOE in August 1985. Rule 56.1 Response ¶ 18. See also Exs. H at 6-8:1 at 19.

         10. Since 2015, Superintendent Mendez has served as the superintendent of schools for the New Visions Schools in Queens and Bronx counties, and District 28, of the DOE. Rule 56.1 Response ¶ 19. See also Exs. H at 5; I at 19-20.

         11. Between 2011 and 2014, Superintendent Mendez was the Queens High School Superintendent, during which time he oversaw 89 high and secondary schools in Queens County. Rule 56.1 Response ¶ 20. See also Ex. I at 20-21.

         12. As Queens High School superintendent, Superintendent Mendez directly supervised the principals of the 89 schools under his purview and functioned as their rating officer. He also attended district leadership and community meetings. He conducted quality reviews, which are qualitative evaluations of the schools he supervised. Rule 56.1 Response ¶ 21. See also Ex. I at 21-22.

         13. As part of his responsibilities as superintendent, Superintendent Mendez determined teachers' tenure, probation extensions, and discontinuances. Rule 56.1 Response ¶ 22. See also Ex. I at 22-23.

         14. In his role as superintendent, Superintendent Mendez did not conduct investigations into employee complaints of discrimination, but he authorized the discipline of employees as a result of findings by the DOE's Office of Equal Opportunity ("OEO"). Rule 56.1 Response ¶ 23. See also Ex. I at 26-31.

         III. The 2012-2013 Teacher Rating Process

         15. From 2010 to 2013, one evaluation system existed for rating teachers, whether those teachers had received tenure, or had not yet completed their probationary period. The evaluation procedure is set forth in Article 8 of the collective bargaining agreement for teachers, which specifically references "Teaching in the 21st Century" and also can be found in the Rating Pedagogical Staff Members manual. Rule 56.1 Response ¶ 26. See also Exs. J at 21-22; Y.

         16. During the 2010-13 academic years, probationary teachers were subject to a three-year probationary period. The three year probationary period could be extended at the end of the third year based on the recommendation of the principal, who functioned as the teacher's rating officer. The superintendent then reviewed the recommendation and issued the final decision. Extensions of probation are generally for one-year periods. Rule 56.1 Response ¶ 27. See also E at 44; E at 44; J at 40-42; Y at USA 3039.

         17. There is no limitation on how many extensions of probation can be granted. Rule 56.1 Response ¶ 28. See also Ex. J at 42.

         18. Formal observations could be conducted by principals, assistant principals, or a combination of these administrators. Rule 56.1 Response ¶ 32. See also Ex. J at 50.

         19. Formal observations are preceded and followed by a conference with the evaluating administrators). The pre-observation conference is for the purpose of discussing the lesson plan and answering any question the teacher may have. The post observation conference is held in order to provide the teacher with feedback about the observed lesson, answer any questions, and provide strategy for future lessons. The observation report must be memorialized within three months of the observation. Rule 56.1 Response ¶ 34. See also Exs. G at 45-46; at 25; J at 48, 50-52; Z.

         20. Formal and informal observations are rated either Unsatisfactory or Satisfactory. Rule 56.1 Response ¶ 36. See also Exs. G at 47; J at 54; Y at USA003032.

         21. The purpose of the observations is to allow the rating officer to determine the teacher's strengths and weaknesses. They are also used as a tool to observe how a teacher responds to feedback. Rule 56.1 Response ¶ 37. See also Exs. E at 31-32; I at 100-102.

         22. Logs of support are a record of support provided to the teacher including professional development, team meeting, feedback from mini, informal and formal observations, and any outside professional development received. Logs of support are implemented when there are signs that a teacher is struggling, resistant to guidance and/or unwilling to improve. Rule 56.1 Response ¶ 38. See also Exs. E at 155; G at 58-59.

         23. At the end of the academic year, all teachers receive an annual rating. During the 2012-2013 academic year, teachers could receive either a Satisfactory or Unsatisfactory rating.

         24. Annual ratings are based on the teacher's observation ratings, disciplinary letters, logs of support, goals, and/or attendance. The DOE does not require a principal to weigh any one component more than another one. Further, the DOE does not set any specific number of unsatisfactory observations that will lead to an unsatisfactory annual performance rating, Rule 56.1 Response ¶ 40. See also Exs. G at 33, 56-57; I at 211-212; J at 54-56; Y at USA 003032.

         25. An unsatisfactory annual performance rating can lead to a teacher's discontinuance. Upon discontinuance, a teacher's license could be revoked which would not allow the teacher to teach anywhere in the DOE. A teacher could also be discontinued without a revocation of license, which would allow the teacher to work in a different district from which teacher had been discontinued. Rule 56.1 Response ¶ 41. See also Ex. J at 57, 64-65; Y at USA 003036.

         26. Annual ratings of teachers are prepared by the principal: a superintendent does not rate the teacher. The superintendent, however, makes the decision whether to grant a teacher tenure. Rule 56.1 Response ¶ 42. See also Ex. J at 70-73.

         27. If the superintendent decides to discontinue a teacher, a letter is sent to the teacher with 30 days' notice. The teacher then has an opportunity to provide information to dispute the discontinuance. Rule 56.1 Response ¶ 43. See also Exs. J at 74, 75; M at 83-84.

         28. Any teacher can grieve, or appeal, an unsatisfactory annual performance rating or discontinuance. Rule 56.1 Response ¶ 44. See also Ex. J at 211.

         29. Superintendents and principals have some discretion to change an employee's annual performance rating. The annual performance rating can also be changed as a result of an appeal. Rule 56.1 Response ¶ 45. See also Ex. J at 36, 39.

         30. Assistant principals also are subject to an evaluation process and annual reviews. At the beginning of the year, the assistant principal establishes goals and objectives with his or her supervisor, which are subsequently memorialized on a form. Then at the end of the year, there is an evaluation of the year-long performance of the assistant principal measured against the goals and objectives. Rule 56.1 Response ¶ 46. See also Ex. J. at 107-108.

         31. Assistant principals also are subject to a probationary period, which is five years long. Like teachers, the probationary period for an assistant principal can be similarly extended. Rule 56.1 Response ¶ 47. See also Ex. J. at 109.

         32. Also similar to teachers, during the 2012-2013 academic year, assistant principals received annual ratings of either Satisfactory or Unsatisfactory. Rule 56.1 Response ¶48. See a/so Ex. J at 109-110.

         33. As with, teachers, the principal makes the recommendation as to whether an assistant principal receives tenure, an extension of probation, or discontinuance. The final detemiination with respect to an assistant principal's employment status is made by the superintendent. Rule 56.1 Response ¶ 49. See also Ex. J at 111-112.

         34. Principals may also have their licenses terminated. Rule 56.1 Response ¶ 50. See also `E‰ J at 111412.

         35. All pedagogical employees, including teachers and assistant principals, on probation can appeal the decision to terminate the employee's license to the DOE's Office of Appeals and Reviews. Rule 56.1 Response ¶ 51. See also Ex. AA.

         IV. John Flanagan ("Mr. Flanagan")

         36. Mr. Flanagan commenced his employment as a teacher with the DOE in 2008. Rule 56.1 Response ¶ 52. See also Ex. A, at 12.

         37. Mr. Flanagan was subject to a three year probationary period. This period of probation was extended twice so that his probationary period was scheduled to end in the fall of 2013, which was his fifth year of probationary service. Rule 56.1 Response ¶ 53. See also Ex. A at 41-44, 54:11-21, 60-62.

         38. Mr. Flanagan was assigned to Pan American to teach native language arts, Spanish. Rule 56.1 Response ¶ 54. See also Ex. A 13, 15:3-20.

         39. At the end of the 2011-12 academic year, Mr. Flanagan was rated "satisfactory" on his year-end evaluation by Principal Barros. Rule 56.1 Response ¶ 55.

         40. Superintendent Mendez extended Mr. Flanagan's probation at the end of the 2011-2012 school year. Rule 56.1 Response ¶ 56.

         41. At the start of the 2012 -13 school year, Principal Zanca became the principal of Pan American. Rule 56.1 Response ¶ 57. See also Ex. F at 12-1 A, 42. Principal Zanca conducted informal classroom visits of Mr. Flanagan on September 7, 12, and 27, 2012. Rule 56.1 Response ¶ 58. See also Ex. BB.

         43. On November 8, 2012, Principal Zanca and Assistant Principal Riccardo conducted a joint formal observation of Mr. Flanagan for which he received an unsatisfactory rating. Rule 56.1 Response ¶ 59. See also Ex. CC.

         44. On November 19, 2012, Principal Zanca and Assistant Principal Riccardo conducted a joint informal observation of Mr. Flanagan. This observation was also rated unsatisfactory. Rule 56.1 Response ¶ 60. See also Ex. DD.

         45. Mr. Flanagan signed the November 19, 2012, Observation Report on November 28, 2012, which specifically informed him that "[unsatisfactory observations may lead to an unsatisfactory rating and charges that may lead to your termination." Rule 56.1 Response ¶6l. See also Ex. DD.

         46. On December 17, 2012, Principal Zanca and Assistant Principal Riccardo conducted a joint formal observation of Mr. Flanagan, for which he received a "satisfactory" rating. Rule 56.1 Response ¶ 62. See also Ex. EE.

         47. On January 7, 2013, Principal Zanca and Assistant Principal Riccardo conducted a joint informal observation of Mr. Flanagan for which he received an unsatisfactory rating. In the observation it was specifically noted that Mr. Flanagan's failure to provide a hard copy of the corresponding lesson plan could "result in an automatic rating of unsatisfactory for the lesson." Rule 56.1 Response ¶ 63. See also Ex. G at 318; FF.

         48. Mr. Flanagan signed the January 7, 2013, Observation Report on March 21, 2013. Rule 56.1 Response ¶ 64. See also Ex FF at 3.

         49. On February 14, 2013, Principal Zanca and Assistant Principal Riccardo conducted another joint informal observation of Mr. Flanagan, which was followed by a post-observation conference and for which Mr. Flanagan received another unsatisfactory rating. Rule 56.1 Response ¶ 65. See also Ex. GG.

         50. On May 8, 2013, Principal Zanca and Eduardo Medrano, an Assistant Principal of Newtown High School ("Assistant Principal Medrano"), conducted a joint formal observation of Mr. Flanagan. Rule 56.1 Response ¶ 66. See also G at 110-112; HH.

         51. Assistant Principal Medrano had been selected to conduct the observation of Mr. Flanagan with Principal Zanca because he was an experienced educator with the same subject area expertise as Mr. Flanagan. Rule 56.1 Response ¶ 68. See also Exs. F at 117, 121-122; H at 86- 87, 91; G at 110-112; I at 125-126, 129; K at 39.

         52. Assistant Principal Medrano also had some familiarity with Pan American. In Assistant Principal Riccardo's absence, he supervised the Saturday and after-school programs at Pan American and taught ESL to Pan American's parents. Rule 56.1 Response ¶ 69. See also Ex. K at 28-29.

         53. Mr. Flanagan was issued an unsatisfactory rating for this lesson. Rule 56.1 Response ¶ 70. See also Ex. HH.

         54. In the May 8, 2013, Observation Report, Principal Zanca noted that the lesson was teacher-centered and that both the lesson and the homework packets lacked academic rigor. Rule 56.1 Response ¶ 71. See also Ex, HH.

         55. The defendants contend that on May 21, 2013, Mr. Flanagan was involved in an incident with a student. Rule 56.1 Response ¶ 74.

         56. Principal Zanca stated in a June 5, 2013 Letter to File that she conducted an investigation of the incident, interviewing Mr. Flanagan and obtaining statements from the student-complainant and witnesses. Rule 56.1 Response ¶ 75. See also Ex. JJ.

         57. In the Letter to File, Principal Zanca stated also that following her investigation, she concluded that Mr. Flanagan had had an argument with the student-complainant and during the argument he used an expletive in front of the students. She further concluded that his behavior demonstrated "poor judgment." Rule 56.1 Response ¶ 76. See also Ex. JJ.

         58. Principal Zanca offered Mr. Flanagan professional development in de-escalating strategies with students and warned that his actions could lead to an unsatisfactory rating or termination. Rule 56.1 Response ¶ 77. See also Ex. JJ.

         59. For the 2012-13 school year, Mr, Flanagan received an unsatisfactory rating from Principal Zanca on his end-of-year Annual Professional Performance Review ("APPR") and Principal Zanca recommended the discontinuance of his employment at Pan American. She stated that she made this recommendation because he struggled teaching Spanish to native Spanish speakers. Rule 56.1 Response ¶ 78. See also Exs. G at 102-103; H at 29-30, KK.

         60. In giving Mr. Flanagan an end-of-year unsatisfactory rating, Principal Zanca referred to his unsatisfactory observation reports for November 8, and 19, 2012, January 7, February 14, and May 8, 2013, as well as the June 5, 2013 Letter to File. Rule 56.1 Response ¶ 79. See also Ex, KK at 2-3.

         61. In making his determination as to whether to discontinue Mr. Flanagan, Superintendent Mendez stated that he reviewed his rating sheet evaluation for the 2012-13 school year and the documentation from Pan American in support of the recommendation of discontinuance. Rule 56.1 Response ¶ 81. See also Ex. H at 29-30.

         62. By letter from Superintendent Mendez to Mr. Flanagan, dated June 14, 2013, Mr. Flanagan was informed that the Superintendent was reviewing and considering whether Mr. Flanagan's services as a probationary teacher would be discontinued as of the close of business, July 17, 2013. Rule 56.1 Response ¶ 82. See also Ex. H at 35-36.

         63. Superintendent Mendez afforded Mr. Flanagan until July 17, 2013, to submit a written response regarding the consideration of the discontinuance of Mr. Flanagan's probationary employment. Rule 56.1 Response ¶ 83. See also Ex. H at 36-37.

         64. Superintendent Mendez informed Mr. Flanagan of his decision in a letter, dated August 8, 2013. Rule 56.1 Response ¶ 87.

         65. Superintendent Mendez stated that he did not receive Mr. Flanagan's written response until later in August 2013, after Superintendent Mendez had already issued the letter discontinuing Mr. Flanagan's probationary employment. But upon receipt, Superintendent Mendez reviewed and considered Mr. Flanagan's written response. It did not alter his decision. Rule 56.1 Response ¶ 88. See also Exs. H at 49-50, 99-100, 1 at 247-257.

         66. Assistant Principal Riccardo observed that Mr. Flanagan "struggled with classroom management." Rule 56.1 Response ...


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