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Wednesday, September 13, 2017

NYC Special Education Teacher William Johnson: Confessions of a ‘Bad’ Teacher

I am re-posting the article below from my website Parentadvocates.org because Mr. Johnson gives what I believe to be an accurate picture of how random labels such as "bad teacher" and "unsatisfactory pedagogy" are used.

See also:

Why Observation Reports Should Not Be Used To Terminate a Tenured Employee by Betsy Combier
At 3020-a arbitration, a good defense argued with supporting arbitration/court decisions made in prior cases will win, most of the time. Pick your lawyer/advocate carefully. Or, do it yourself pro se with a knowledgeable assistant.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

William Johnson
NYC Special Education Teacher William Johnson: Confessions of a ‘Bad’ Teacher
Parentadvocates.org

William Johnson wrote: "What makes a great teacher? To a lot of people, the answer seems simple enough: a great teacher is one whose students achieve. For the most part these days, student success is measured with test scores. Logically then, a great teacher is one whose students perform well on tests......I’m a bad teacher. That’s not my opinion; it’s how I’m labeled by the city’s Education Department. Last June, my principal at the time rated my teaching “unsatisfactory,” checking off a few boxes on an evaluation sheet that placed my career in limbo. That same year, my school received an “A” rating. I was a bad teacher at a good school. It was pretty humiliating."


March 3, 2012
Confessions of a ‘Bad’ Teacher
By WILLIAM JOHNSON, NY TIMES
LINK

I AM a special education teacher. My students have learning disabilities ranging from autism and attention-deficit disorder to cerebral palsy and emotional disturbances. I love these kids, but they can be a handful. Almost without exception, they struggle on standardized tests, frustrate their teachers and find it hard to connect with their peers. What’s more, these are high school students, so their disabilities are compounded by raging hormones and social pressure.

As you might imagine, my job can be extremely difficult. Beyond the challenges posed by my students, budget cuts and changes to special-education policy have increased my workload drastically even over just the past 18 months. While my class sizes have grown, support staff members have been laid off. Students with increasingly severe disabilities are being pushed into more mainstream classrooms like mine, where they receive less individual attention and struggle to adapt to a curriculum driven by state-designed high-stakes tests.

On top of all that, I’m a bad teacher. That’s not my opinion; it’s how I’m labeled by the city’s Education Department. Last June, my principal at the time rated my teaching “unsatisfactory,” checking off a few boxes on an evaluation sheet that placed my career in limbo. That same year, my school received an “A” rating. I was a bad teacher at a good school. It was pretty humiliating.

Like most teachers, I’m good some days, bad others. The same goes for my students. Last May, my assistant principal at the time observed me teaching in our school’s “self-contained” classroom. A self-contained room is a separate classroom for students with extremely severe learning disabilities. In that room, I taught a writing class for students ages 14 to 17, whose reading levels ranged from third through seventh grades.

When the assistant principal walked in, one of these students, a freshman girl classified with an emotional disturbance, began cursing. When the assistant principal ignored her, she started cursing at me. Then she began lobbing pencils across the room. Was this because I was a bad teacher? I don’t know.

I know that after she began throwing things, I sent her to the dean’s office. I know that a few days later, I received notice that my lesson had been rated unsatisfactory because, among other things, I had sent this student to the dean instead of following our school’s “guided discipline” procedure.

I was confused. Earlier last year, this same assistant principal observed me and instructed me to prioritize improving my “assertive voice” in the classroom. But about a month later, my principal observed me and told me to focus entirely on lesson planning, since she had no concerns about my classroom management. A few weeks earlier, she had written on my behalf for a citywide award for “classroom excellence.” Was I really a bad teacher?

In my three years with the city schools, I’ve seen a teacher with 10 years of experience become convinced, after just a few observations, that he was a terrible teacher. A few months later, he quit teaching altogether. I collaborated with another teacher who sought psychiatric care for insomnia after a particularly intense round of observations. I myself transferred to a new school after being rated “unsatisfactory.”

Behind all of this is the reality that teachers care a great deal about our work. At the school where I work today, my “bad” teaching has mostly been very successful. Even so, I leave work most days replaying lessons in my mind, wishing I’d done something differently. This isn’t because my lessons are bad, but because I want to get better at my job.

In fact, I don’t just want to get better; like most teachers I know, I’m a bit of a perfectionist. I have to be. Dozens and dozens of teenagers scrutinize my language, clothing and posture all day long, all week long. If I’m off my game, the students tell me. They comment on my taste in neckties, my facial hair, the quality of my lessons. All of us teachers are evaluated all day long, already. It’s one of the most exhausting aspects of our job.

Teaching was a high-pressure job long before No Child Left Behind and the current debates about teacher evaluation. These debates seem to rest on the assumption that, left to our own devices, we teachers would be happy to coast through the school year, let our skills atrophy and collect our pensions.

The truth is, teachers don’t need elected officials to motivate us. If our students are not learning, they let us know. They put their heads down or they pass notes. They raise their hands and ask for clarification. Sometimes, they just stare at us like zombies. Few things are more excruciating for a teacher than leading a class that’s not learning. Good administrators use the evaluation processes to support teachers and help them avoid those painful classroom moments — not to weed out the teachers who don’t produce good test scores or adhere to their pedagogical beliefs.

Worst of all, the more intense the pressure gets, the worse we teach. When I had administrators breathing down my neck, the students became a secondary concern. I simply did whatever my assistant principal asked me to do, even when I thought his ideas were crazy. In all honesty, my teaching probably became close to incoherent. One week, my assistant principal wanted me to focus on arranging the students’ desks to fit with class activities, so I moved the desks around every day, just to show that I was a good soldier. I was scared of losing my job, and my students suffered for it.

That said, given all the support in the world, even the best teacher can’t force his students to learn. Students aren’t simply passive vessels, waiting to absorb information from their teachers and regurgitate it through high-stakes assessments. They make choices about what they will and won’t learn. I know I did. When I was a teenager, I often stayed up way too late, talking with friends, listening to music or playing video games. Did this affect my performance on tests? Undoubtedly. Were my teachers responsible for these choices? No.

My best teachers, the ones I still think about today, exposed me to new and exciting ideas. They created classroom environments that welcomed discussion and intellectual risk-taking. Sometimes, these teachers’ lessons didn’t sink in until years after I’d left their classrooms. I’m thinking about Ms. Leonard, the English teacher who repeatedly instructed me to “write what you know,” a lesson I’ve only recently begun to understand. She wasn’t just teaching me about writing, by the way, but about being attentive to the details of my daily existence.

It wasn’t Ms. Leonard’s fault that 15-year-old me couldn’t process this lesson completely. She was planting seeds that wouldn’t bear fruit in the short term. That’s an important part of what we teachers do, and it’s the sort of thing that doesn’t show up on high-stakes tests.

How, then, should we measure students and teachers? In ninth grade, my students learn about the scientific method. They learn that in order to collect good data, scientists control for specific variables and test their impact on otherwise identical environments. If you give some students green fields, glossy textbooks and lots of attention, you can’t measure them against another group of students who lack all of these things. It’s bad science.

Until we provide equal educational resources to all students and teachers, no matter where they come from, we can’t say — with any scientific accuracy — how well or poorly they’re performing. Perhaps if we start the conversation there, things will start making a bit more sense.

William Johnson is a teacher at a public high school in Brooklyn who writes on education for the Web site Gotham Schools.

FEBRUARY 6, 2012
A New Model: Schools As Ecosystems
by Mark Anderson and William Johnson, at 10:30 am

What makes a great teacher? To a lot of people, the answer seems simple enough: a great teacher is one whose students achieve. For the most part these days, student success is measured with test scores. Logically then, a great teacher is one whose students perform well on tests.

Let’s take it a step further: what makes a great school? Again, the same basic logic applies: great schools are ones that produce the highest proportion of students who perform well on tests. The role of the school, in other words, is to produce students successful according to test proficiency.

Perhaps this framework appears overly simplistic, but it’s the framework that currently directs our efforts to improve public schools. Schools are knowledge-manufacturing facilities, with students being their products. This framework has led school reformers to advocate for accountability systems, human capital mechanisms, and other private sector management tools in public school reform.

Not surprisingly, New York City Mayor Mike Bloomberg is an aggressive proponent of this business framework. The mayor’s private sector management approach recently led him to propose a “turnaround” program at 33 city schools that would require replacing half of those school’s teachers. Not happy with the product? Fire experienced workers and bring in cheaper, lower skilled replacements.

This framework is not just a New York thing. All across the country, school districts are being pushed, by influential figures like U.S. Secretary of Education Arne Duncan and Calif. Secretary of Education Bonnie Reiss, to evaluate teachers based on a “value-added” analysis. What does this mean? It’s a kind of metaphor: students are raw natural resources; unprocessed, they contribute little to the economy and thus possess little value. If teachers process them effectively, however, their value increases.

Let’s leave aside our gut reactions to talking about children this way. The real problem with this framework is that it’s been a dead end. For the most part, debates about how to produce better students have led to discord within the field of education, while demonstrating little significant impact.

Applying an industrial-growth model to student learning has rightfully caused consternation on the part of both parents and teachers. Parents don’t send their children to school simply to be processed like chaff from wheat. Yes, parents want their kids to get good jobs and to be academically successful, but they also want their kids to become mature, responsible, well-rounded individuals. Parents look for more from a school than its achievement on tests: is the school safe? Will their child receive individualized support and attention? Are there extracurricular resources and programs available? Are children happy at school? What sort of curriculum is offered?

As special education teachers, we know how critical these environmental factors are. Our students, for reasons as varied as their individual learning needs, rarely thrive in a high pressure, test-driven environment. The vast majority of students with exceptional learning needs perform significantly below the norm on standardized tests, significantly enough that these tests (or the scores required to pass them) must constantly be modified so that our students can be accounted as successful. Students receiving special education services are often more attuned to environmental factors than their general education counterparts. It is this sensitivity to their environment that often makes it so difficult for such students to focus on their studies.

Schools as ecosystems

But positive, supportive environments are not important only for students with exceptional learning needs. All students thrive in environments that support their development in diverse ways: from offering a coherent, sequential curriculum to providing students with a comfortable, stimulating physical space. Such schools, like their curricula, take responsibility not simply for academic development, but personal development as well. School environments where the curriculum is designed around standardized tests, and where factors like the physical and social environment take a back seat to those tests, are not conducive to learning.

We propose a fundamental shift in the framework and language we use to discuss educational reform. Instead of a framework that views students as products, we propose a framework in which the products of education are viewed as the contexts and content of schools themselves. The schools we produce should be positive and nurturing learning environments where students are engaged in a rich, coherent curriculum. Rather than view our students as widgets, we’d do better to view them as vibrant, dynamic organisms, and view the school, by extension, as an ecosystem. While such a model would make it harder to quantify school quality based on a simple numerical scale, it would enable us to have more productive conversations about systemic education reform, and to take action in targeted ways that will have a sustainable impact.

There are principles for maintaining a healthy ecosystem that can provide guidance in strengthening our school environments. We are certain that this shift in focus will — perhaps paradoxically — result in more productive student outcomes. Land maintained according to sound ecological principles results in abundant microbial soil life, interdependency of diverse species, and a sustainable yield. A school maintained according to ecological principles will result in lower teacher turnover, greater community engagement, and positive long-term student outcomes.

Our belief is that many schools commonly considered “great” already operate as healthy, sustainable ecosystems. Such schools offer their students adequate sunlight, fresh air, exercise, and nutrition. Their students feel intellectually, emotionally, and physically safe because their school communities celebrate diversity and offer equity of opportunity. These schools offer an array of supplemental options–such as music, foreign languages, clubs, and sports–to meet the diverse needs of their dynamic student bodies. They offer protection from short-sighted policies and destructive external forces through the strong relationships and trust engendered and developed within the school community. They possess built-in mechanisms to maintain equity and equilibrium, preventing one type of personality or learning need from dominating at the expense of others.

Cultivation, not demolition

How does this framework relate to ongoing conflict around school closures? Under the Department of Education’s current “turnaround” plan, as many as 33 city schools could be closed, re-staffed (with as many as half their current teachers replaced), and reopened. At schools all over New York, teachers, students, and families have voiced concerns about the city’s slash-and-burn approach to school “turnaround.”

If schools are factories, tearing down “ineffective” ones and replacing them with newer, shinier ones might sound like good business. If, however, we view schools as ecosystems, then struggling schools are depleted ecosystems desperately in need of resuscitation and support. Such resuscitation requires a holistic, long-term approach.

Using an ecological design approach, reformers could not treat schools as vacant lots primed for subdivision. Instead, school revitalization would need to be a community-driven, long-term process. In an ecological framework, school reformers would need to acknowledge the complexity of school communities, rather than simply pretending that schools could be leveled, bulldozed, and magically reinvented as high performing lots of isolated land.

Implicit in such a framework, and diametrically opposed to the “student as product” framework, is the understanding that there is no ideal school (nor student). Just as healthy ecosystems might come in a myriad of forms, healthy school environments may come in a wide variety of shapes and sizes, dependent on specific local community needs and circumstances. That said, healthy school environments, like ecosystems, are guided and cultivated by a set of core principles, which the authors would like to explore in future posts.

Perhaps the best part of this paradigm shift (for the authors) is that in such a framework, the role of the teacher would shift from test-prep overseer to environmental steward. Instead of being trained and treated as a widget, teachers would be content experts and community leaders of their classroom and school ecosystem, responsible for all the students who inhabit it. Such stewards would necessarily need to be long-term inhabitants of these ecosystems themselves, growing more and more effective as their knowledge of the environment deepens and their relationships within the school community strengthens.

A new metric

Do we sound like dreamers? Would such a model be impossible to quantify? We do not believe so, and we’re not the first to propose such a paradigm shift. In fact, we believe that by refocusing our attention on the content and contexts of our schools, we can establish a new measuring stick. What’s more, since this framework would not be based on improving student test scores but on improving school environments, the responsibility would be shared by all who work within and support that community, rather than solely upon the backs of individual students and teachers within the confines of an isolated classroom.

In the posts that follow, the authors will lay out a series of ecological principles that we believe can be used as a guide for effective school design and reform. We will also examine model schools and investigate how they’ve constructed such exceptional school environments. We look forward to your feedback.

Monday, September 11, 2017

The Question: Should Charter Schools Be Able To Certify Their Teachers or Not?

The issue of how to train teachers is an important one, especially now that unions, especially teacher unions, are "on their way out" according to many people in the education field I have spoken to in the last three years.

Charters want, and major media want, charters to be able to train their own teachers, while the teachers' unions and many States want to stay with a teacher certification process which takes almost two years. See the article in the NY TIMES below.

The solution may well be a combination of these approaches, but whatever the end result is, we need to tie the certification process to an evaluation and rating system which is fair and reasonable.

And, please let's stop the philosophy that senior teachers are garbage.

Betsy Combier
betsy.combier@gmail.com
President and Founder, ADVOCATZ
Editor, Advocatz
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

A Way to Get Great Teachers Into the Classroom


When schools reopened in New York last week, students were greeted by teachers who had spent the summer preparing for their return. Unfortunately, many of those teachers had had to devote some of their time not to lesson plans, but to a cumbersome state teacher-certification process that emphasizes bureaucratic procedures more than real-world qualifications.

So as a teacher who recently had to jump through the New York certification hoops, I was pleased to learn that the State University of New York Charter Schools Institute, which authorizes charter operators, is considering allowing charter schools to certify their teachers themselves. The comment period for the proposal closes on Monday, and the institute could approve it as early as next month.

Here’s my story. In February 2015, I was delighted to receive an offer from Democracy Prep Public Schools, one of New York City’s thriving charter school networks, to join an innovative new educational program called Pathways, for students with disabilities. There was just one problem: I was not certified to teach in New York State.

That I did not possess the requisite certification did not mean that I lacked the requisite qualifications. When I received my offer from Democracy Prep, I had already spent six years of teaching and coaching aspiring teachers in Boston and Chicago. As a graduate of Boston Teacher Residency, an alternative teacher-preparation program based in Boston Public Schools, I am certified to teach in Massachusetts. I also have a master’s in education from the University of Massachusetts, Boston.

Nevertheless, because of New York’s approach to teacher credentialing, it took 18 months, three exams, one teaching portfolio, countless hours and about $1,000 for me to get my initial certificate through reciprocity.

And I’m one of the lucky ones. Because I was already certified in another state, I did not have to take additional graduate courses. Democracy Prep even reimbursed all of my application and exam fees. Still, I found myself having to divert precious time from my work in the classroom to study for exams and compile a teaching portfolio just to demonstrate that I was a competent teacher, which I had already proved six years before in Boston. It can be a daunting task, one that can deter great prospective teachers, or prompt already great teachers to leave the field rather than deal with the paperwork involved in getting certified in a new state or renewing their certification.

Even as charter schools become more numerous and more popular, they are having problems finding enough instructors, and so they rely on young, new teachers, often from nontraditional programs like Teach for America, who have yet to receive certification. Under the Charter School Institute proposal, schools would be able to design their own training programs and certify teachers. These new teachers would have to get a minimum of 100 hours of “field experience” under the supervision of another teacher and 30 hours of “content core” instruction, among other requirements.

Many charter schools, including Democracy Prep, are already in a position to undertake such programs. By mid-August of this year, I was headlong into summer professional development. Teachers at Democracy Prep engage in approximately 240 hours of training throughout the school year. I also receive constant feedback and support to improve my teaching practice and help students grow. I am observed weekly by school leaders, instructional coaches and other network staff members. At the end of each trimester, I sit down with my principal to review my performance and progress and to set goals for the remainder of the year.

While some unions and professors at teachers colleges have criticized the certification proposal, my experiences in schools around this country have taught me that no one actually cares where or how you learned to teach. No one has ever walked into my classroom and asked to see my degree or questioned my qualifications; all that has mattered is the classroom environment that I’ve helped to create, the relationships that I’ve built with students and families, and the growth of my students.

Limiting the ability of schools to attract great teachers makes little sense. It’s not important to our students whether their teachers went through a traditional graduate school of education, Teach for America or a charter school training program; all that matters is that they get the very best teachers that we can give them. Our communities, schools and students deserve the highest-quality teachers, not merely the ones with a paper certificate.


Willie Gould is an arts and literacy teacher at the Democracy Prep Pathways charter school in Harlem.

Saturday, September 9, 2017

ADVOCATZ: Full Service Advocacy, Support, and Problem-Solving

re-posted from ADVOCATZ' blog:
Advocatz' purpose is to assist any person or group who have been challenged by false reports or evaluations, defamation, libel, and/or who have received charges which are false or life/career-altering. 

We believe that all people have the right to due process of law, as well as the right to expose corruption and fraud. We help you do that.
Betsy Combier

We also assist attorneys in vacating judgments of "substantiated" false claims by investigating the investigators and defending the legal and contractual rights of all who are brought to grievances, mediation, arbitration, and/or want to go to settlement at any administrative hearing. We have extensive experience in winning cases in Education Law 3020-a arbitration. 

We are not attorneys and do not practice law. We investigate, research, seek facts wherever they may be in recorded information, emails, and any other social media sources, and assist the victim in creating a comprehensive and detailed report on exactly how the problem arose ....and can be resolved. 

We believe that the work needed to be done on each case is too much for a single attorney or a single representative who may not have or give the time needed to obtain all the details of what happened and that is why we give our clients unlimited time for discussion and research. All information is discussed and reviewed to give backup support and to manage all the case details for the attorney or client, if the client is pro se. In arbitration, mediation and negotiation where there is no attorney, and the appellant is pro se, we give the same assistance and support. Our opinions are not legal advice.

We help people who feel they have been harmed understand what the process is, and how an individual victimized by false claims can defend him or herself. Arbitration proceedings such as 3020-a hearings, do not take place in a Court of Law and there is no judge or jury.

We work as paralegals with Attorneys who subpoena witnesses, submit Motions To Dismiss charges, and argue for compliance with 3020-a Law on the determination of probable cause, the Just Cause StandardSection 2590-h, and Section 3020-a. In addition, we research case law for Article 75 and 78 appeals, Part 83 Appeals, First Department Appeals, and civil actions in State and Federal Court.

Paralegal Betsy Combier has 14 years of experience observing, documenting, and studying the 3020-a process as well as the underlying laws which supposedly apply to the discipline process for employees. She is a paralegal, advocate for individual and collective rights, and an investigative reporter. She is a graduate of NYU, Johns Hopkins, and Northwestern University, and has been a reporter/journalist/advocate for more than 35 years. She edits the following websites and blogs:
Parentadvocates.orgNYC Rubber Room ReporterNew York Court CorruptionNational Public VoiceNYC Public Voice, and Inside 3020-a Teachers' Trials.

We at Advocatz use terms such as "Just Cause" (or 'good cause') and "bad faith" in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

"Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take an action prescribed by law. What constitutes a good cause is usually determined on a case by case basis and is thus relative.
Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless, since that party's serious illness is a good cause, or justification for having additional time to take the legal action."
 ( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). "good cause". Black's Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the "good cause" justification.

Similarly, a valid defense should have a fact-based opposition to any bad faith by the defendant(s).

From Wikipedia:
"Bad faith (Latinmala fides) is double mindedness or double heartedness in duplicityfraud, or deception. It may involve intentional deceit of others, or self-deception.
The expression "bad faith" is associated with "double heartedness", which is also translated as "double mindedness". A bad faith belief may be formed through self-deception, being double minded, or "of two minds", which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, "of two hearts", or "a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another". The concept is similar to perfidy, or being "without faith", in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre's analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.
Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim."
Betsy Combier
betsy.combier@gmail.com

Monday, September 4, 2017

Unemployment Benefits Won After Claimant Resigned For "Good Cause"

The case of Yolanda Cohen decided by the Appellate Division Third Department shows the importance of a fact-based defense by a Claimant showing "good cause" for a resignation due to workplace harassment.

We at Advocatz use terms such as "Just Cause" (or 'good cause') and "bad faith" in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

"Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take an action prescribed by law. What constitutes a good cause is usually determined on a case by case basis and is thus relative.
Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless, since that party's serious illness is a good cause, or justification for having additional time to take the legal action."
 ( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). "good cause". Black's Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the "good cause" justification.

Similarly, a valid defense should have a fact-based presentation of bad faith by the defendant(s).


From Wikipedia:
"Bad faith (Latinmala fides) is double mindedness or double heartedness in duplicityfraud, or deception. It may involve intentional deceit of others, or self-deception.
The expression "bad faith" is associated with "double heartedness", which is also translated as "double mindedness". A bad faith belief may be formed through self-deception, being double minded, or "of two minds", which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, "of two hearts", or "a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another". The concept is similar to perfidy, or being "without faith", in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre's analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.
Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim."
Betsy Combier
President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
Appellate Division, Third Department

In the Matter of the Claim of YOLANDA COHEN
2017 NY Slip Op 05885
In the Matter of the Claim of YOLANDA COHEN, Respondent.
NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant.
COMMISSIONER OF LABOR, Respondent.
Decided July 27, 2017.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2015, which ruled that claimant was entitled to receive unemployment insurance benefits.
Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor of counsel), for appellant.

Michelle I. Rosien, Philmont, for Yolanda Cohen, respondent.
Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

MEMORANDUM AND ORDER
EGAN, Jr., J.
Claimant worked for the employer as a paralegal from 2007 to 2012, during which time various disciplinary charges were lodged against her. In February 2012, claimant and the employer entered into a stipulation of settlement resolving the most recent round of disciplinary infractions. Pursuant to the terms of that stipulation, claimant would waive her right to a Civil Service Law § 75 hearing and would resign effective March 15, 2012. In the interim, claimant would be allowed to collect her accrued annual leave and, going forward, would receive a "neutral reference" from the employer. Notably, the stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of claimant was made.

Claimant subsequently filed an application for unemployment insurance benefits, and the Department of Labor issued initial determinations disqualifying claimant from receiving benefits upon the grounds that she voluntarily left her employment without good cause or, alternatively, lost her employment due to misconduct. Following a lengthy hearing, an Administrative Law Judge (hereinafter ALJ) overruled the initial determinations, finding that claimant had good cause to separate from her employment and had not otherwise committed disqualifying misconduct. In so concluding, the ALJ found that claimant had been subject to a hostile work environment. The Unemployment Insurance Appeal Board subsequently adopted the ALJ's findings and affirmed the ALJ's decision, prompting this appeal by the employer.

We affirm. As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits (see e.g. Matter of Flint-Jones [Federal Reserve Bankof N.Y.— Commissioner of Labor], 144 AD3d 1288, 1288-1289 [2016]), and the same holds true for a claimant who engages in disqualifying misconduct (see e.g. Matter of Trunzo [Commissioner of Labor], 145 AD3d 1308, 1309 [2016]). That said, "[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct" (Matter of Jimenez [New York County Dist. Attorney's Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted]; accord Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 AD3d 998, 998 [2012], lv dismissed 19 NY3d 831 [2012]; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence" (Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, 1023 [2016] [internal quotation marks and citations omitted]; see Matter of Trunzo [Commissioner of Labor], 145 AD3d at 1309).

Claimant and the employer's witnesses presented competing accounts of claimant's work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the "bullying" and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer's account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve (see Matter of Saunders [Life Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317-1318 [2013]). As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant's testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ's findings that claimant's actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her "hostile" and "untenable" work environment — an environment that, in turn, provided "a compelling reason for her to resign." As there is substantial evidence to support the Board's decision in this regard, it will not be disturbed — despite the presence of other evidence in the record that could support a contrary conclusion (see Matter of Barrier Window Sys., Inc. [Commissioner of Labor], 149 AD3d 1373, 1375 [2017]).

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.


ORDERED that the decision is affirmed, without costs

see Matter of Kolmel:


Matter of Kolmel v City of New York
2011 NY Slip Op 07265 [88 AD3d 527]
October 18, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 7, 2011


In the Matter of William Kolmel, Appellant,
v
City of New York et al., Respondents.
[*1]
Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Edward F. X. Hart of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-2009 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.
The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-2009 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.
"[A] . . . probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law" (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). "Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith" (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a "U" rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283 [2008]).
Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner's manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).
However, petitioner submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe petitioner's teaching during either of his final two years at the school. This was in violation of DOE's rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner's assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner's employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]). Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 31350(U).]