January 27, 2004
Hon. Nina Gershon, U.S.D.J.
U.S. District Court, E.D.N.Y.
U.S. Courthouse
225 Cadman Plaza
Brooklyn, N.Y. 11201
Re: David Roemer v. Board of Education of the City School District of the City of New York, Public Employment Relations Board, Herbert Monte Levy, Joyce Coppin, and Tom Pappas, O1-CV-1105 (NG) (SMG)
Dear Judge Gershon:
I am the plaintiff pro se herein. I hereby withdraw the request I made in my letter of December 15, 2003 that I be allowed to respond to the papers filed by the defendants in response to my motion for reconsideration.
I do, however, respectfully repeat my request for oral argument in order to explain my lawsuit to this court. I believe this court's dismissal of my lawsuit is manifestly unjust and is based upon a gross misunderstanding of my pleadings, as I tried to explain in my December 15 letter. The source of this misunderstanding is the Report and Recommendation dated December 30, 2002 and written by Magistrate Stephen M. Gold.
What follows is a selection of 17 quotations from this report accompanied with an explanation of why the quotations are substantially and materially misleading. Also included is a list of 10 statements in the Arbitration Findings , as they were referred to in the Memorandum and Order dated November 6, 2003, that are irrational and not based upon the facts of the case. These are listed under the heading "Erroneous Belief in Factual Basis of Arbitration Findings (page 8, line 16)."
First Misrepresentation of Complaint (page 3, line 9)
J. Gold writes:
On November 20, 1996, the Board of Education found probable cause to file charges of incompetence and insubordination against Roemer. Compl. ¶ 16. A hearing officer was appointed, and pre-hearing conferences were held. Compl. ¶19. Roemer, represented by counsel, moved to dismiss the charges pending against him, but his motion was denied. Compl. ¶¶ 19-20. Hearings were held before a three-member arbitration panel pursuant to New York Education Law § 3020-a.
"Compl." refers to my complaint before this court. J. Gold doesn't mention paragraphs 17 and 22 of the complaint, which allege that the charges of incompetence and insubordination were fraudulent and includes ten common law elements of fraud in accordance with Rule 9b of the Federal Rules of Civil Procedure. Nor does he mention the grounds for the motion of dismissal of the charges, set forth in paragraph 20 of the complaint, which is the lack of specificity in the charges. Nor does he mention paragraphs 23, 24, and 25 which say that the hearing was unlawful because a settlement was negotiated and was binding on both parties.
The lack of specificity of the charges concerned whether I was being charged with insubordination, incompetence, or both. By not mentioning the grounds for requesting dismissal, J. Gold makes the motion appear ridiculous and obscures a defect in the arbitration proceedings.
Fabrication of Fictitious Complaint (page 3, line 14)
Having eviscerated my complaint by leaving out the parts that discredit the defendants and leaving in the parts that discredit me, J. Gold then proceeds to substitute a fictitious complaint of his own devising to replace the real complaint before this court. He writes:
Plaintiff was represented by counsel throughout the arbitration proceedings, and contested the charges against him on several grounds. Among other claims, plaintiff asserted that his problems with his supervisors resulted from philosophical differences rather than insubordination and that his approach to teaching was superior to the methodology insisted upon by the Board of Education and thus did not reflect his incompetence. See In the Matter of the Matter of the Arbitration between Board of Education of the City of New York and David Roemer, Findings and Recommendations at 27-32.
The document in underline referred is the document referred to as the Arbitration Findings in this court's Memorandum and Order. J. Gold's source for his bogus account of my defense at the arbitration hearing is the majority report of the document he cites in the above quote1. The majority report was written by Howard Edelman, Esq., who was the hearing officer appointed.
This is not the defense I presented at the arbitration hearing, the full record of which is not in J. Gold's possession. This is, rather, J. Gold's version of Mr. Edelman's version of my defense at the arbitration hearing. J. Gold's version serves to create an incorrect impression of what my complaint before this court states and makes it appear that my lawsuit is irrational and that my defense at the arbitration hearing was irrational.
Misrepresentation of Arbitration Findings (page 3, line 20)
J. Gold now makes a more serious error:
After seven days of hearings, on May 12, 1998, a three-member hearing panel issued a detailed written decision finding plaintiff "culpable of the charges preferred against him" and concluding that "[t]he appropriated penalty for Respondent [Roemer]'s culpability is dismissal from service. See Id at 50; Compl. ¶ 26.
This paragraph contradicts paragraph 27 of my complaint which states that the minority panel member recommended that I receive no punishment at all. J. Gold clearly was not guided by the statement he made on page 2, line 10: " I assume the allegations of the complaint to be true for purposes of the pending motions."
Thus, it was not the "three-member hearing panel" that recommended termination, but the majority of the hearing panel. Had J. Gold reported the findings and recommendations of the panel in a truthful manner it would have discredited the arbitration findings and supported the allegations in my complaint. Such a disagreement about the penalty indicates that the panel was confused. This confusion could have been avoided if the hearing officer had dismissed the complaint and required the Board of Education to rewrite the complaint.
The court uncovered this falsehood on its own. The Memorandum and Order on page 4, line 7 states:
(the lone dissent to the panel's decision, filed by the Employee Panel Member, was not based on a disagreement with the panel's findings; rather the dissenter disagreed with the recommended punishment)
I admit that the minority report did not say my legal expenses should be paid, as provided for by Education Law for frivolous charges. Nor did the minority panelist denounce the charges as being fraudulent.
One weakness of the minority report is that the author, essentially a volunteer being paid a nominal amount, fails to state what those findings were. This is also a weakness in J. Gold's report and a weakness in the Memorandum and Order. J. Gold, I suggest, does not understand what I did wrong, but has no compunction about implying that I did something wrong because the majority of the panel terminated me and the minority panel member didn't explicitly criticize the majority.
Concerning what I did wrong, paragraph 13 of the complaint says:
Upon information and belief, the plaintiff's involuntary transfer to nonteaching duties violated the plaintiff's right to due process of law because the plaintiff had none nothing wrong and the defendant Board of Education knew the plaintiff had done nothing wrong.
Defendant Herbert Monty Levy's answer to my complaint denied paragraph 13. I filed a motion for sanctions against defendant Levy under Rule 11, on the grounds that there was no evidence of wrong doing on my part. Mr. Levy was not required to answer this motion for sanctions. On June 22, 2001, at a status conference, I complained to J. Gold about this and he stated that since he was considering defendants' motions for dismissal there was no point in considering a motion for sanctions.
First Misrepresentation of Article 75 Petition (page 4, line 4 to page 5, line 3)
J. Gold's discussion of the Article 75 petition in New York State Supreme Court, described in paragraphs 31 to 37 of the complaint and filed pursuant to Education Law, is as misleading as his discussion of the complaint itself and his report of the findings and recommendations of the arbitration panel. This is accomplished, whether deliberately or not, as before by dwelling on aspects of the Article 75 proceeding that discredit me and ignoring aspects of the proceeding that discredit the defendants.
J. Gold describes in great detail the contents of the first document (Exhibit 47) referred to in paragraph 30 of the complaint. This document is titled "Petition to Vacate the Finding and Recommendations of the Panel Selected to Determine Disciplinary Proceedings Under Section 3020-a of the Education Law," but the document does not give any lawful grounds for doing so and does not describe any violation of my rights under the constitution of the United States. Furthermore, this petition was answered by the respondent Board of Education as stated in paragraph 30. J. Gold's description of the contents of this sham petition has the effect of making my complaint before this court and the Article 75 lawsuit to appear irrational.
J. Gold does not mention the document titled "Reply Affidavit in Support of Petition" (Exhibit 51) referred to in paragraph 34 of the complaint, which explains why I believe my constitutional rights have been violated. The Board of Education did not answer this document in the Article 75 proceeding.
J. Gold cites paragraph 35 of the complaint which relates that Judge David B. Vaughan of the State Supreme Court dismissed the petition but does not refer to paragraph 36 and 37 which alleges that J. Vaughan violated my rights and acted in collusion with respondent Board of Education.
Second Misrepresentation of Article 75 Petition (page 5, line 5)
Another example of J. Gold's misleading selectivity is the following statement:
Plaintiff appealed Justice Vaughan's decision, but the dismissal of his petition was affirmed by the Appellate Division. See DeLarco Decl. Ex. D; Compl. ¶41.
J. Gold means to refer to paragraph 40 not 41 of the complaint. J. Gold does not mention paragraph 38 which refers to my brief (Exhibit 58) in the appellate case and paragraph 39 which refers to the Board of Education's brief (Exhibit 59). Paragraph 39 contains the allegation that the Board of Education's brief was not responsive to my brief because it did not explain how the agreement to conciliate a disagreement about teaching transformed into charges against me for incompetence and insubordination.
Misleading Insertion of the Improper Practice Charge (page 5, line 8)
J. Gold writes,
On April 13, 2000, Roemer filed an improper practice charge before defendant PERB, alleging that the UFT had conspired with the Board of Education to file false and fraudulent disciplinary charges against him. Compl. ¶ 42.
"UFT" refers to the United Federation of Teachers which is the employer of defendant Pappas. I think it is misleading for J. Gold to report my allegation in my improper practice charge against the UFT and the defendant Board of Education at this point and in this manner. J. Gold creates the impression that I did not make this allegation at the arbitration hearing and the Article 75 petition, and that this allegation is not the substance of my complaint before this court.
Erroneous Belief in Factual Basis of Arbitration Findings (page 8, line 16)
J. Gold read the arbitration findings and found them persuasive. J. Gold says:
The findings and recommendations of the arbitration panel plainly demonstrate that the panel members considered plaintiff's challenges to the charges proffered against him by the Board of Education, yet found those charges to be supported by ample evidence and sufficiently serious to warrant the termination of plaintiff's employment.
The legal error of J. Gold using the findings and recommendations of the arbitration panel to justify dismissal under Rule 12 are set forth in the papers I wrote with the assistance of an attorney.2
I don't see how J. Gold could honestly make such a statement about the findings and recommendations of the arbitration panel without having the full record of the hearing and in the light of my brief and the complaint. Furthermore, my motion for summary judgment included a list of material facts pursuant to Local Rule 56.1 that is supported by 84 exhibits. Exhibit 58 is my brief (referred to in paragraph 38 of the complaint) in the appeal of the Article 75 dismissal and contains a 15 page analysis of the arbitration findings with the heading "Award Is Totally Irrational." What follows is a list of 10 erroneous and irrational statements in the majority report, which was written by Mr. Edleman.
Error No. 1 (page 45, line 18) Mr. Edelman explains that teachers found "incompetent and/or insubordinate" are frequently given a second chance on page 47, line 17. He gives a number of reasons for not giving me a second chance, but the one I want to comment on is the following:
Given this testimony, which was clear and unrebutted, there can be no doubt that Respondent knew the conciliation process had not succeeded as early as Spring 1995. As such, his assertion that he was waiting for the conciliation process to finish while still insisting on teaching the way he wanted, failing to provide lesson plans, etc. is without merit. (emphasis added)
It is contrary to the facts of the case that I knew the conciliation process had not succeeded in the Spring 1995. This statement is not even a credible justification for terminating a teacher because it is mere speculation on what I knew and did not know at a poorly specified date. Most importantly the date that Mr. Edelman comes up with is not based upon the evidence, as the following shows.
Exhibit 23 is a letter dated November 8, 1995 from Harold Matthes, who was the conciliator assigned by the Board of Education, terminating the conciliation process. Exhibit 29 is a letter from the UFT dated February 16, 1996 saying that my grievance should be remanded to the conciliation process. Exhibit 40 is a letter from the attorney assigned to me by the UFT to the Board of Education's attorney. I am quoting this letter in full because it expresses for the first time my allegation that the charges against me were unlawful:
I am enclosing a letter to Superintendent Coppin dated December 2, 1994 from Joseph Shiavo and a copy of a Request for Conciliation. I understand that the UFT will be making another request for conciliation.
If your client is willing to proceed with conciliation or if your client agrees that the conciliation process is still open, it seems pointless to proceed with the § 3020-a. Please call to discuss this.
The response of the Board of Education to this letter was a stipulation of settlement (Exhibit 41) which was signed by me and my attorney on or about May 2, 1997. Thus, the date I knew the conciliation process would not succeed was the Spring of 1997, not the Spring of 1995.
The above quoted letter suggests that the charges are unlawful because when the members of the Board of Education voted to file charges against me, it meant that they were authorizing the expenditure of around $100,000 to remove a tenured teacher from his position in the event that the teacher requested a hearing. They did not authorize the expenditure of this amount of money for a "pointless" proceeding. The members of the Board of Education were tricked into voting to file charges against me, as I attempted to explain in my brief and allege in my complaint.
Also indicative of the irrationality of Mr. Edelman's discussion of the conciliation agreement is the discussion of it by the attorney for the Board of Education during his closing remarks (line 25 of the 13th page of Exhibit 44):
MR. MAZZARIELLO: You know what he could do with the conciliation process. I would tell you but Mr. Edelman would yell at me.
THE HEARING OFFICER: I will.
MR. MAZZARIELLO: I could tell him what to do with it. I'd really like to tell him man to man, face to face on the sidewalk in the middle of the street what he could do with that conciliation process.
Error No. 2 (page 26, line 2) Mr. Edelman says:
The Board asserts that Respondent's dismissal is warranted. It points out that he was rated "Unsatisfactory" in two successive years.
Mr. Edelman is accepting uncritically the implication that I was given an opportunity to improve my teaching in the second year. This is not true since I made it clear to my supervisors, by my actions, oral statements, and written statements that my teaching would not change in September 1995 because I felt a duty as a professional and civil servant to comply with the conciliation process. I also had a duty, fully supported by my supervisors, to teach the best way I knew how.
For example, in the last observation report of the 1994 to 1995 school year (Exhibit 21), the Assistant Principal of the Science Department said in the last paragraph:
You have made it clear by your comments that supervisory suggestions that have been given to you during your year at Murrow have not been useful.
Another example is the grievance I filed (Exhibit 19) where I criticized my supervisors for not following the conciliation process and for unlawfully threatening to file charges against me.
As my brief explained, the purpose of giving me a teaching program in September 1995 was not to give me a chance to improve my teaching. My supervisors gave me a program in order to trump up fraudulent charges of incompetence and insubordination. Their motive for doing this was to side-step the conciliation process. If my supervisors took disciplinary action against me before September 1995, it would have resulted in a lawful settlement of the disagreement between my supervisors and myself about teaching, which my supervisors did not want.
The above quotation from the observation report also shows the lack of basis of Mr. Edelman's criticism of me in Error No. 1, where he says that I "insisted upon teaching the way I wanted." My supervisor's criticism of me is that I did not find supervisory suggestions useful.
Error No. 3 (page 26, line 4) Mr. Edelman goes on to say:
In its view [the Board's], these ratings are indicative in and of themselves of his inability to teach.
Mr. Edelman is referring to the "Unsatisfactory" annual performance evaluations which are based upon the unsatisfactory ratings given to the observed lessons and upon authorization by the Superintendent's office.
When the Board of Education agreed to conciliate they were well aware of the fact that my supervisors were rating my lessons as unsatisfactory, as this was part of the application (Exhibits 4 to 8, 10 to 15). Nevertheless, the Board of Education accepted the request for conciliation (Exhibit 13) which request implied that my supervisors were not properly evaluating my lessons. The Board of Education, prior to being tricked into filing charges against me, wanted me participate in questions concerning teaching methodology since I had developed a learner-centered method of teaching science.
Error No. 4 (page 29, line 1) Concerning my position, Mr. Edelman says:
Moreover, Respondent submits, he reasonably attempted to resolve his pedagogical differences with the administrators in his school. In this context, he notes that he invoked the conciliation procedure set forth in Article XXIV of the Collective Bargaining Agreement between the Board of Education and the United Federation of Teachers. (emphasis added)
It is misleading to say that I "invoked" conciliation. This implies that conciliation is an automatic process teachers who are found unsatisfactory can invoke. I sent a letter to the Chapter Chairperson of the UFT (Exhibits 10 and 11), we met with the Principal who agreed to the conciliation, the Chapter Chairperson forwarded the material to the District Representative of the UFT with a letter (Exhibit 12), the UFT submitted a formal request for conciliation (Exhibit 13), and the Board of Education accepted the request (Exhibit 14). The formal request was based upon the fact that I had been employing an innovative method of teaching for five years that was developed, in part, by the Board of Education.
Error No. 5 (page 40, line 31) Mr. Edelman says:
In this context, we note Respondent's claim that most of the lessons which supervisors rated as unsatisfactory were in fact, satisfactory.
If a supervisor says a lesson is unsatisfactory, it is rather irrational for the teacher to assert that the lesson was satisfactory. Teachers are unable and unqualified to rate lessons and certainly not their own lesson while they are teaching it. If I made such a statement at the arbitration hearing, it was in response to a leading query from my attorney and because I was trying to defend my teaching.
I defended my teaching and criticized the observation reports of my supervisors in the letter I wrote to the Chapter Chairperson on October 29, 1994 (Exhibit 10). In this letter I did not say my lessons were satisfactory. This letter was included in the UFT request for conciliation and was the basis of the request for conciliation (Exhibit 13). This resulted in the conciliation agreement. Mr. Edelman is simply hashing over a matter that was decided by the Board of Education when the request for conciliation was accepted.
Error No. 6 (page 42, line 21) Concerning the charge of insubordination, Mr. Edelman says
Respondent's refusal to meet with his supervisors is also well documented.
The "documentation" Mr. Edelman refers to consists of letters that may or may not have been sent to me. There was in fact more documentation concerning my refusal to go to post-observation conferences in my second academic year. However, this documentation was not included in the specification of charges and not given to Mr. Edelman. The Principal, in fact, referred the matter of the post-observation conferences to the Superintendent (defendant Coppin) who conducted a disciplinary hearing on December 20, 1995 (Exhibit 25) and followed up with a disciplinary letter (Exhibits 26, 27, and 28). In this disciplinary letter defendant Coppin told me that she was going to cause the Office of Legal Services to file charges against me. Furthermore, at this meeting the issue of my going or not going to the observation conferences was discussed and Mrs. Coppin advised me that I should not go to the conferences if my teaching was not going to change for the better.
Attached to this letter is my response advising defendant Coppin that accusing me of insubordination or incompetence would constitute defamation. The fact that this correspondence (Exhibits 20, 26, 27 and 28) was not included in the specification of charges is one of the elements of fraud set forth in paragraph 17 of the complaint.
Error No. 7 (page 43, line 8) In connection with my nonattendance of post-observation conferences, which occurred only in my second year, Mr. Edelman irrationally judges me guilty of insubordination:
He found the directives meaningless since he believed nothing good could come out of the meetings. As a result, he stopped attending them:
"Q. Isn't it true you stopped going to post-observation conferences?
A. Yes." (581)
Clearly he should not have. In so doing, Respondent was blatantly insubordinate. (emphasis added)
There was nothing "blatant" about this at all, given the covered-up disciplinary proceedings discussed above and the underlined phrase. I should also point out that at his opening and closing remarks (Exhibits 42 and 44) the attorney at the Board of Education never used the word "insubordination" to describe my conduct.
Error No. 8 (page 44, line 17) Concerning the conciliation process, Mr. Edleman says:
The Panel agrees with Respondent's contention that those comments go beyond the Superintendent's role as a conciliator. The directive, to "accept the principal's position," though couched as a recommendation, is not a conciliatory gesture but is rather the imposition of a requirement. Thus, we find, the conciliation process at Dr. Coppin's level was not properly conducted.
Revealing his prejudice and irrationality, Mr. Edelman does not consider the consequences of defendant Coppin's not properly conducting the conciliation process and her motives for not doing her job properly.
At the arbitration hearing I subpoenaed the conciliator, Harold Matthes. Exhibit 43 is a transcript of his testimony. The following colloquy took place between the attorney for the Board of Education and Mr. Matthes:
Q: What date did you hear the conciliation?
A: It was in March.
Q: And you didn't write your closing memo until November 8, 1995?
A: That's correct.
Q: It took until November to write a one paragraph letter?
A: Yes. It was certainly inappropriate.
Q: Totally inappropriate.
In other words, Mr. Edelman is saying that defendant Coppin did not do her job properly, and the attorney for the Board of Education is saying that Mr. Matthes did not do his job properly.
Had the conciliator written the letter terminating the conciliation before the end of the school year, I would have been provided with notice that the conciliation process had ended and would have responded to this development in a professional and reasonable manner. Among such possible responses would have been to resign from the Board of Education or ask for a transfer to another school. Any rational person reading the arbitration findings would have trouble figuring out that it was me who did not do his job properly.
Error No. 9 (page 45, line 5) Mr. Edelman makes the following statement which shows that he lacks an understanding of my supervisors' criticism of my teaching. Mr. Edelman says:
Nothing in the conciliation process permits a teacher to use it as a shield to ignore the pedagogical methodology which the school deems appropriate.
There is no "methodology which the school deems appropriate." There was never any criticism of my methodology in the observation reports. My methodology consisted of giving the students a handout at the beginning of each lesson which describes the lesson, and providing the students class time for independent study and cooperative learning. These are tried and true methods of teaching.
The criticism to be found in the observation reports and the testimony of those who observed my lessons is that there was a lack of learning in my class. A supervisor does not have to give a reason for why there was a lack of learning. He or she can simply say that the students did not connect with the lesson. However, my supervisors did give a reason. They said that I didn't properly plan the lessons. In other words, I was a poor teacher because I did not give enough thought to what I was going to do in the classroom, and as a result what I did was ineffective.
The idea that my supervisors were against my methodology comes from me. This is why I believed my supervisors were rating my lessons as unsatisfactory even though I was increasing my student's opportunities for learning. The request for conciliation (Exhibit 13) written by the United Federation of Teachers says:
He has always taught Physics using a "constructionist" methodology from workshops and seminars given by Supt. Coppin's office. He wants to continue using this approach.
Mr. Bruckner, Principal of Murrow H.S., and Mr. Cohen, A.P. Science, have directed him to use a "developmental" approach to teaching Physics. His observations have been critical because of his lack of a developmental lesson plan.
The whole point of the conciliation process the Principal and I were supposed to engage in was to determine the methodology to be used to teach Physics. If Mr. Edelman is saying that I was supposed to follow the Principal's methodology until after the conciliation when I can switch to the methodology that we agreed upon, he is entirely wrong.
The reason for this is that no competent supervisor would want a teacher to teach in a manner that the teacher did not believe in and could not be enthusiastic about. Teachers have to motivate students to learn and have to communicate their enthusiasm to the students. Also, part of a teacher's responsibility is to discuss with parents their child's progress or lack of progress. The scenario in which a teacher is being forced to use a method of teaching that the teacher believes is ineffective is difficult to contemplate.
The sequence of events was as follows: In my first and subsequent lessons I used my methodology. My supervisors said my lessons were not helping the students learn. I responded by suggesting that there is a disagreement about methodology. The Board of Education agreed with me and said to conciliate. If the conciliation had brought about an agreement it would have meant that I would use the agreed upon method of teaching. If the conciliation did not bring about an agreement, it would have meant that I should transfer to another school or resign from the Board of Education.
Error No. 10 (page 47, line 11) Mr. Edelman makes a statement that shows how irrational his decision to terminate me was. He says
As such, we are convinced, this is not a case of a teacher who could improve with additional training. Instead, this is a case of a teacher who simply believed he was right and everyone else was wrong. Thus, we conclude, no useful purpose would be served by restoring Respondent to duty.
Mr. Edelman is not an educator and does not have a good understanding of science instruction in New York City public schools. The people who did understand the requirements of science instruction, the Superintendent and the Office of Legal Services, agreed to settle the arbitration proceedings (Exhibit 41). They understood that my problems in teaching for the Board of Education would only arise if I taught Regents Physics. They knew that I would have no difficulty satisfying supervisors in teaching remedial science or General Science. There are far more non-Regents science classes given in New York City public schools than Regents Physics. At Erasmus Hall High School, for example, there was one Regents Physics class and about 30 non-Regents classes in science.
Third Misrepresentation of Article 75 Proceeding (page 8, line 19)
J. Gold repeats his mischaracterization of the Article 75 proceedings:
Plaintiff's Article 75 petition sought to vacate the panel's findings and recommendations, asserting that the arbitration panel exceeded its authority, misconstrued controlling law, and rendered an arbitrary decision. See Article 75 Petition, ¶ 2.
The falsity of this statement is discussed under the heading "First Misrepresentation of Article 75 Proceeding." My grounds for vacating the panel's findings are in the document titled "Reply Affidavit in Support of Petition" (Exhibit 51). Since J. Gold is stating that my lawsuit should be precluded because of the Article 75 litigation, he should be familiar with those proceedings. His misrepresentation of that proceeding casts doubt upon the integrity of his Report and Recommendation. The relevant part of Exhibit 51 is
13) I submit, in short, that I have been terminated because of my innovative teaching methods and that this case can be resolved through the conciliation process which had not been completed. My termination has sidestepped the conciliation process and should be set aside.
Second Misrepresentation of Complaint (page 10, line 4)
According to J. Gold, I am alleging that the Board of Education violated my rights in the following manner:
by failing to complete the conciliation process before filing disciplinary charges (¶ 18); and by filing charges of incompetence and insubordination against him which were false (¶¶ 16, 17). (emphasis added)
The truth is that paragraphs 16 and 17 of the complaint allege that the charges were fraudulent not false. By substituting the word "false" for "fraudulent" J. Gold makes my complaint appear ridiculous. It was the arbitration panel's job to determine whether the charges were true or false. For me to say in my complaint that the charges were false when the panel determined that the charges were not false would be implausible. My allegation is that the charges filed against me were fraudulent, which involves malice, unlawfulness, and deception.
My complaint contains within it an explanation of why the panel ruled against me. They were either unwilling or unable to see through the fraudulent nature of the charges. Not being educators, they had a poor understanding of the educational significance of the agreement to conciliate (Exhibit 14). Also, they may have had a very poor understanding of how difficult it is for supervisors to help an unsatisfactory teacher improve his or her teaching.
Among the common law elements of the fraud is the omission of the fact that there was an agreement to conciliate that was not completed. This omission was material because conciliation under Article 24 of the collective bargaining agreement was the procedure the Board of Education decided upon in response to the application submitted by the UFT (Exhibits 10 to 16).
Paragraph 18 of the complaint says that
the aforementioned charges violated the plaintiff's right to due process of law because the conciliation process was not completed and because the plaintiff relied on the fact that the conciliation process was not completed.
By using the word "before" J. Gold is implying erroneously that the conciliation process is provided for teachers who are in trouble with their supervisors as a way of avoiding disciplinary procedures. This contradicts the plain language of the conciliation agreement as I attempted to explain in my brief. The purpose of Article 24 of the collective bargaining agreement is to enable teachers to participate in pedagogic decisions, including teaching methodology (Exhibit 15). In the conciliation process the Board of Education agreed upon in my case, the logical consequence of the Principal and me not being able to reach an agreement about teaching methodology would have been for me to transfer to another school. J. Gold is implying incorrectly that the logical consequence of the principal and me not reaching an agreement is for disciplinary procedures to be taken against me.
By reversing the order of the paragraphs in the complaint and by changing the words, J. Gold is creating the false impression that I have two allegations: 1) the conciliation process was not completed and 2) the charges were false. In fact, the allegation in paragraphs 16 and 17 is that the charges against me were fraudulent because the conciliation process was not completed. This is one allegation, not two. The allegation in paragraph 18 is that my right to due process was violated because I had a professional duty to act in accordance with the agreement to conciliate.
Misrepresention of Arguments Against Dismissal Under Rule 12 (page 13, line 2)
J. Gold writes:
According to the complaint, Justice Vaughan deprived plaintiff of due process by dismissing his Article 75 petition, thereby depriving plaintiff of a remedy to which he was entitled (¶36); by not requiring defendant Board of Education to respond to a Reply Affidavit plaintiff submitted (¶ 37); and by presiding over and dismissing plaintiff's Article 78 Petition even after plaintiff had filed a letter of complaint against him (¶¶ 50-52). To the extent these allegations are intended to suggest that the state court proceedings were so flawed as to preclude application of the Rooker-Feldman doctrine, the suggestion must be rejected.
J. Gold fails to mention that my arguments against using J. Vaughan's order to preclude my lawsuit in federal court is given also in my brief and fails to state what those arguments were. I included paragraphs 36, 37, 50, and 52 in my complaint not only to show this court had subject matter jurisdiction over the case, but also to accuse the attorney from the New York City Law Department who was representing the Board of Education in the Article 75 petition of wrongdoing in connection with J. Vaughan's dismissal of the petition. A letter of accusation to this attorney is attached as Exhibit 57.
Rubber-stamping the Motion for Dismissal (page 13, line 10)
J. Gold proceeds to give his reason for his recommendation to dismiss the lawsuit for lack of subject matter jurisdiction:
First, a party may not trigger an obligation to recuse simply by suing or filing a grievance against a judge presiding over his case. Moreover, Rooker-Feldman provides that a federal court lacks jurisdiction over a challenge to a state court decision, even if the state court's actions are alleged to be unconstitutional.
There were two arguments I gave in my brief against using the Article 75 dismissal for preclusion. The first is that the order was obtained by fraud and collusion. The second is that J. Vaughan violated New York State's Civil Practice Laws and Rules § 402 because the Board of Education did not answer the true petition which was the document titled "Reply Affidavit in Support of Petition" (Exhibit 51).
I would like to mention by the bye that I retained defendant Herbert Monte Levy in connection with my Article 75 lawsuit after the attorney I retained submitted the sham petition referred to in paragraph 30 and carefully reported by J. Gold. If I made any legal mistakes in my efforts to represent myself in state court without a lawyer, I place the blame on defendant Levy for withdrawing from the case without a good reason.
The fraudulent nature of the Article 75 order, I am contending in my brief, is rooted in the fraudulent and unlawful nature of the disciplinary charges against me, which the order failed to remedy. In addition, the attorney from the New York City Law Department made false statements during oral argument that caused J. Vaughan to dismiss the case, as I explained in my brief.
The "first" reason given by J. Gold concerns the order dismissing the Article 78 petition, which came after the Article 75 petition. J. Gold is implying, falsely, that I filed a complaint against J. Vaughan after he was assigned to the Article 78 petition. The complaint against J. Vaughan was sent on January 24, 2000 to the Commission on Judicial Misconduct. (Exhibit 61). The Article 78 petition was filed on August 21, 2000, and the motion to J. Vaughan asking for recusal was dated September 19, 2000.
J. Gold is quite right correct in saying that a judge need not recuse himself merely because a party has filed a complaint against him. However, this legal nicety has nothing to do with the motion before J. Gold. What is relevant is whether or not my complaint against J. Vaughan is valid. Instead of discussing the validity of my accusations against J. Vaughan, J. Gold accuses me of making the accusations for self-serving reasons.
Misrepresentation of Claims Against Defendant Levy (page 14, line 2)
Concerning my complaint against defendant Herbert Monte Levy, J. Gold says:
It is hard to imagine any allegations a former client might make against his privately retained attorney which would be insufficient to state a claim of professional malpractice but adequate to assert a violation of constitutional rights.
In the first place, the malpractice claim was dismissed upon a motion for summary judgment, not on a failure to state a claim. In the second place, defendant Levy based his defense against my malpractice lawsuit on J. Vaughan's order dismissing the Article 75 petition. Defendant Levy argued that he carried out his professional duties correctly by advising me that J. Vaughan would be required to dismiss my petition as a matter of law.
I see now that defendant Levy's legal advice is supportive of the arguments I advanced in the attorney-assisted briefs. In these documents, I argue that J. Vaughn's dismissal of my petition means that the merits of arbitration award were not considered in state court and thus subject to federal jurisdiction, given the gravity of my allegations against the defendants.
It was wrong and misleading for J. Gold to speculate about possible justifications I might have for placing defendant Levy among those who I am alleging violated my constitutional rights since I explained my reasons in the my brief. My allegation against defendant Levy concerned his motives for telling me that my Article 75 lawsuit had no merit. If his motives were improper, then he could be rightly charged with failing to prevent a conspiracy against me that violated my constitutional rights. The violation of my rights was a lynching by abuse of legal process which was not completed until my appeals were exhausted. By failing to properly represent me defendant Levy was failing to prevent a legal lynching or participating in one.
Free Brief for New York Law Department (page 14, line 16 to page 17, line 22)
This section is titled, "II. Constitutional Challenge to New York State Education Law 3020-a." My interpretation of this section is that J. Gold has written a legal brief arguing that the law is not unconstitutional. This was more than was done by the New York City Law Department to support the constitutionality of the law.(fn # 3)
The State Education Department vigorously opposed the 1994 change in the law by citing numerous instances of teachers accused of abusing children who were not dismissed by the § 3020-a arbitrations.
Third Misrepresentation of the Complaint (page 18, line 1)
J. Gold writes,
As noted above, plaintiff alleges in his amended complaint that he was removed from teaching responsibilities in retaliation for seeking to bring an appeal to the New York City Schools Chancellor from defendant Coppin's denial of a grievance he had filed. See Compl ¶ 14. (emphasis added)
J. Gold erroneously implies that the grievance referred to is unrelated to the other allegations against the defendants. Paragraph 14 of the complaint refers to "the plaintiff's grievance to the Chancellor." Notice that I used the direct article "the" not the indirect article "a" that is used by J. Gold. The direct article is used because the grievance referred to is the grievance described in paragraph 8 of the complaint. This grievance complains that my supervisors were not conciliating as there were supposed to do. This grievance is also referred to in ¶ 17 of the complaint in the first element of the fraud I am alleging was perpetrated by the defendants since the grievance was never resolved.
By the using the indefinite article, J. Gold creates the false impression that my complaint brings in willy-nilly a free-speech violation.
First Misrepresentation of the Retaliation Claim (page 18, line 4)
J. Gold writes:
Because it is not clear that plaintiff presented this claim to the arbitration panel or in his state court petitions, it is at least arguable that, under the limited construction of the Rooker-Feldman doctrine in Moccio, this court has subject matter jurisdiction over this aspect of plaintiff's complaint.
Whether J. Gold should concern himself with what happened or did not happen at the arbitration hearing is discussed in the attorney-assisted briefs. J. Gold should certainly want to be clear about the details of the Article 75 petition. There is no excuse for J. Gold to not know what claims were made in the Article 75 petition since I discussed it in great detail, as I explained in my comments under the heading "First Misrepresentation of Article 75 Petition." In point of fact, I did not make any free-speech claim in my Article 75 or 78 petitions. Thus, according to J. Gold, this court possibly has subject matter jurisdiction over this aspect of the case.
J. Gold gives three reasons why he is recommending dismissal. The first is that the free speech claim is time-barred. The other two reasons given by J. Gold are irrational because they are based upon a misunderstanding of the retaliation claim set forth in my complaint.
J. Gold obscures and misrepresents my complaint's allegation which is that the filing of fraudulent charges against me was a two-step process. The first step was to remove me from the classroom and the second step was to present the fraudulent charges to the members of the Board of Education. If the charges against me were filed in good faith, it would be unreasonable of me to allege a retaliation motive for my removal from the classroom. Having made up his mind that the charges against me were not fraudulent because the arbitration panel ruled against me and because J. Vaughan dismissed my petitions, J. Gold proceeds to show with a great deal of case-citing that the charge of retaliation must be dismissed also.
On the other hand, if the charges against me were unlawful, it means my retaliation claim is reasonable because I was removed from the classroom six weeks after a meeting with defendant Pappas about the grievance referred to in paragraphs 8 and 17 of the complaint. In short, the fact that I am alleging a retaliation motive in my complaint for my removal from the classroom is not material to the question of whether this court has subject matter jurisdiction. The retaliation claim in my complaint is subordinate to my due process claim.
Second Misrepresentation of Retaliation Claim (page 20, line 7)
As discussed above, there is no retaliation claim worth considering in the complaint. As mentioned under the heading "First Misrepresentation of Complaint" there was a second due process claim in paragraphs 23, 24, and 25. The first due process claim is that the charges against me were fraudulent and the second due process claim is that the hearing was unlawful because the case was settled.
Soon after my complaint, however, I brought forth a retaliation claim in my motion for summary judgment. Paragraph 13 of the list of material facts pursuant to Local Rule 56.1 in a letter dated June 7, 2001 states:
The members of the board of the defendant Board of Education refused to approve the settlement of the charges because of animus against me for exercising my constitutionally protected right to free speech (Exhibits 1, 2, 3, 8, 9, 17, and 41; ¶¶ 37, 44; see nos. 1 to 12 above).
I also elaborated on this retaliation claim in my brief, which J. Gold refers to in the quote below as my "memorandum of law." I tell the story I was given about the breakdown of the stipulation of settlement and specifically cite a speech I gave at a public meeting of the Board of Education on November 20, 1996 (Exhibit 35) after they invited me to comment on the charges filed against me (Exhibit 32). J. Gold says:
In his memorandum of law in opposition to defendant's motions to dismiss, plaintiff points to additional instances of speech he now claims may have resulted in adverse employment consequences. More specifically, plaintiff asserts that a letter he wrote on August 22, 1994, and testimony he gave on January 24, 1995, may have caused the Board of Education to reject a settlement of the disciplinary charge it had filed against him. (emphasis added)
J. Gold is implying by the use of the word "now" that I concocted the retaliation claim for the purposes of defeating the motion to dismiss. This is a double falsehood because I made the retaliation allegation many months before the motion to dismiss and because the retaliation claim replaced the due process claim that the hearing was unlawful because the case was settled.
J. Gold incorrectly states that there were two instances of free speech, leaving out the most compelling one. In fact there were six instances which are set forth as Exhibits 1, 2, 3, 9, 17, and 35.
Incorrect Determination of Time That Retaliation Occurred (page 20, line 15)
To justify dismissing the case, J. Gold says:
The Board of Education rejected the settlement agreement referred to by plaintiff on or before May 2, 1997. According, plaintiff's new allegations of protected speech are also time-barred.
J. Gold is being inaccurate when he placed that date upon the rejection of the settlement. All that happened on May 2, 1997 is that the stipulation of settlement (Exhibit 41) was not signed by the Secretary of the Board of Education and the hearings commenced on June 13, 1997 (Exhibit 42). The Secretary of the Board of Education could have signed the stipulation at any time up until the arbitration panel issued its award, which the Board of Education was legally compelled to execute. Thus, the rejection of the settlement occurred on June 1, 1998, the date the panel issued its findings and recommendations. Since my suit was filed on February 23, 2001, my retaliation claim is not time-barred.
Footnote # 1: The majority report is Exhibit 45 and the minority report is Exhibit 46 in the document titled "Affidavit in Support of Motion for Summary Judgment." In what follows all references to "Exhibits" refers to the documents attached to this affidavit.
Footnote # 2: These documents were titled "Plaintiff's Objections to the Report and Recommendation of Hon. S. Gold, U.S. Magistrate Judge, Dated December 30, 2002,""Plaintiff's Memorandum in Support of Motion for Reconsideration," "Plaintiff's Objections to Declaration of Michael Delarco, Esq., Dated February 14, 2003," and "Plaintiff's Objections to Declaration of Claude I. Hersh, Esq., Dated February 21, 2003, and will be referred to as the "attorney-assisted" briefs.
Footnote # 3: See for example Exhibit 8 in the document titled, "Affidavit in Opposition to Motions to Dismiss Under Rules 12(b) and 56", paragraph 13.
Respectfully submitted,
David Roemer
345 Webster Avenue, Apt. 4-O
Brooklyn, N.Y. 11230
718-438-7375
Plaintiff pro se
CC:
Michael DeLarco (MD 7702), New York City Law Department, 100 Church Street, Room 2-173, New York , New York 10007
Claude I Hersh, New York State United Teachers, Legal Services-New York City, 52 Broadway, 9th Floor, New York, New York 10004
David B. Cohen, Office of Attorney General, 120 Broadway, New York, New York 10271-0332
Herbert Monte Levy, 551 Fifth Avenue, 27th Floor, New York, NY 10176