Monday, May 16, 2011
How I Beat The DOE’s Phony Charges, Exposed The Bad Cops Of OSI and OEO, And Ripped Lying Witness On Cross-Examination At My 3020-a Hearing … And Still Got Fined $10,000
How I Beat The DOE’s Phony Charges, Exposed The Bad Cops Of OSI and OEO, And Ripped Lying Witness On Cross-Examination At My 3020-a Hearing … And Still Got Fined $10,000.
By Philip Nobile
Four substantiated cases: all tossed
After three years in suspension and seven days of hearings last fall, Arbitrator Roger P. Kaplan squashed two corporal punishment charges that removed me from the the Cobble Hill School of American Studies in 2007 as “a danger to children.”
The Arbitrator also rebuffed a third complaint that I uttered a “racist remark” in Brooklyn’s Chapel Street Temporary Reassignment Center. A black teacher named Richard Walker was kidding around, or so I thought, when he asked me a question including the word Negroes. In reply, I repeated the term in the same tone. My usage, but not his, was instantly blown up into a full-fledged race incident. Suddenly, I was Imus in the rubber room.
In a deserved rebuke of Cobble Hill Principal Kenneth Cuthbert and the Chancellor’s Office of Special Investigations, DOE lawyers declined to charge me on a substantiated but malodorous fourth complaint regarding some Christmas cards sent from the rubber room to my colleagues back at Cobble Hill in 2008. As Chapter Leader, it was my custom to send handmade XMAS greetings to chapter members. Mr. Cuthbert stooped to smear four of my cards, copies of Barry Blitt’s parodic New Yorker illustration of the Obamas as the father and daughter in Grant Wood’s American Gothic, as “racist” and/or “threatening.” The nimrod OSI investigator, since retired, endorsed Mr. Cuthbert’s analysis after walking out of our interview in a snit. I protested to Superintendent Linda Waite who had the power to accept or discard OSI’s report. Apparently, I convinced her that the race charge was a stinker. Julianne Newman, the DOE lawyer who prosecuted me, said that the case was tossed as “too subjective.” Translation: too Ken Cuthbert.
On top of explicit acquittals for corporal punishment and discrimination, the Arbitrator took swipes at the DOE’s arguments, disparaged their gendarmes, and, in his fashion, implied that three of their vengeful witnesses committed perjury. So whence the $10,000 fine?
A fondness for split verdicts
In the Bermuda Triangle of Education Law 3020-a, which regulates the discipline of tenured teachers and administrators, strange things obtain. One of the most vexing is the inordinate fondness for split verdicts. My first union lawyer Yvonne Mariette had only one acquittal and one termination in five years. My second union lawyer Kathy Battle had but one acquittal and a handful of terminations in more than five years.
It is said, and statistics confirm, that Arbitrators are predisposed to cutting the toddler in two because their annual contracts can be vetoed by either the DOE or the union. Ms. Mariette concurred that all three charges were bogus, but predicted that I would go down on one. When asked why, she deadpanned, “Because there are three of them.”
All along my defense plan was to go on the offense, to expose the DOE’s bad faith and bad cops. In light of the Delegate Assembly’s May ’09 resolution condemning OSI for framing chapter leaders and dissident teachers, I saw my hearings as chance to put the DOE on trial.
The union lawyers balked. It’s not the right venue, Ms. Mariette said. What was the right venue? She had no answer. Ms. Battle said that she would not allow me to make the corruption argument in my direct testimony either. Before I could fire these warriors, they withdrew from the case. I got my wish. I always intended to represent myself. The temptation to interrogate my accusers was irresistible. I might have stepped aside for a mad dog advocate. I pushed and pushed, but the UFT refused to help fight the madness my way.
Consider Specification 1, wherein on May 10, 2007 I allegedly “a) Grabbed Student A by the arm” and “b) Pushed Student A toward the classroom door.” From the beginning I affirmed a harmless grab while attempting to quell a major classroom disruption inflamed by a large, deeply disturbed 10th grade girl who had made a recent death threat. I denied the push and the Arbitrator believed me. He wisely judged that the fleeting grasp of Student A did not fit the Chancellor’s Regulation defining corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil.” Thus he concluded: “Nobile did not violate A-420 by imposing corporal punishment on Student A.”
Nevertheless, he went hardcore on me: “[Nobile’s] use of physical force on Student A was totally unacceptable. That is so even if A thought it was no big deal.” Thus a split verdict: innocent of a punitive push, but guilty, guilty, guilty of a non-punitive grab--which under Chancellor’s Regulations does not rise to chargeable misconduct!
“negro” is not a Racist Term
An even finer bifurcation occurred in Specification 3, in which the DOE accused me of stating “words to the effect of: (a) I will control those Negroes at that table (referring to a table containing African-Americans).” Note the qualifier—“words to the effect of”—meaning that the DOE was vague as to what I actually said.
Where did DOE lawyers come up with that paraphrase? It was not in the findings of the original report from the Chancellor’s Office of Equal Opportunity. OEO officer William Brewton offered a different construction of my remark: “This investigation has substantiated that by stating, in sum and substance, ‘I’m going to tell these Negroes to quiet down,’ Mr. Nobile violated Chancellor’s Regulation A-830.” (emphasis in original) Note the switch from “control” to “quiet down” and the continuation of a qualifier.
The conflict in language sprang from two versions of the incident—the complainant’s and mine. The black teacher told OEO that I approached him in the rubber room on October 21, 2009 and just blurted out: “I will control those Negroes at that table.” Nothing more. I told OEO a different story: the teacher asked me first, “Are you going to tell those Negroes to quiet down?” referring to a noisy faraway table and my periodic requests to lower the volume in our overcrowded space. And I replied, “No, I’m going to tell these Negroes to quiet down,” referring to an often noisier nearby table where he sat.
Although the OEO investigator and the DOE lawyers could not agree on my verb--whether the polite “quiet down” or the uppity “control,” they were unanimous that “Negroes” was discriminatory, though they cited no evidence of its supposed racist tinge. The Chancellor’s General Counsel Michael Best signed off on OEO’s damning report and Supt. Waite condemned me to racial rehab via OEO’s online training, warning me in writing that the incident could “lead to your termination of employment.”
Granted the preponderance of indecision around my remark, the Arbitrator himself hedged on my exact saying. On page thirty-one of his thirty-eight-page decision, he wrote: “Nobile acknowledged saying words to the effect I am going to control those Negroes.” Yet four pages later, without explanation or proof, he erased the ambiguity for strict literalism:
While [Nobile’s] statement did not contain a racial epithet, that does not mean it was an appropriate statement in the workplace. Nobile was an employee just like the other people in the Center. He was not in a position of authority. He had no right to control any group of employees. He also did not have the right to announce in a loud voice that he was going to control any group of employees. … Specification 3 is sustained.
Horse feathers. First, my statement related to manners, not authority. The Arbitrator zinged the DOE for neglecting the context behind “Negroes” (e.g., “Nobile’s use of the word Negroes should have been considered by the Department in the context in which it was made.”), yet ignored the context of control. Anyone has the right to request a zone of relative peace and quiet from admittedly rowdy colleagues in the workplace without being impugned and fined for overbearing behavior management as imagined by the Arbitrator.
Second, the DOE neither placed quotes around control in the text of Specification 3, nor did the prosecutor subsequently argue in the hearing that I said the word, nor did she distinguish between the alleged verb (control) and admitted noun (Negroes) at any time. My supposed “racist remark,” the gravamen of Specification 3, was never chopped into parts of speech. Once the Arbitrator killed the racism charge as “unconvincing,” even citing the Supreme Court in my defense, Specification 3 should have been dismissed outright.
Third, the Arbitrator’s skewed finding rested entirely on the testimony of a perjurer. The teacher swore on direct that he did not “recall” posing the Negro question first. But minutes later on cross-examination he miraculously recalled that he did not initiate an exchange and righteously denied saying Negro, ever:
I would never use that terminology, okay. This is a problem that's system wide in the Department of Education. They allow the young people to run around the school using the "nigger" word. Now I don't like that. Thusly, I would never use Negro either because I feel that that's offensive, too. So I would never use that word.
The teacher lied about baiting me. “I find that [the teacher] did make the statement first to Nobile,” concluded the Arbitrator. Two African American rubber roommates swore that they heard the teacher ask me about Negroes on the fateful day and two said that he used “nigger” in conversations with them. If the teacher lied about speaking first and using “Negro” and “nigger,” why would the Arbitrator grant him absolute credence on control?
The incident that never was
Thanks to the ludicrous testimony of paraprofessional Michelle Williams, the second corporal punishment case collapsed. According to Specification 2, I allegedly “a) Grabbed Student D by the arm and b) Pushed Student D into a wall.” This incident began with a mini-riot among seniors on May 29, 2007. Mr. Cuthbert did not alert the Online Occurrence Reporting System as required by Chancellor’s Regulations, nor did he inform the police of my assault complaint against Student D, also mandated by Chancellor’s Regulations. At the next Safety Committee meeting he congratulated himself for covering up the fight. His secretary’s meticulous minutes read: “Mr. Cuthbert said that the alternative for the students involved in the fight was having a stain on their records, because of the severity of the fight.” My record, however, was suitable for splotching. Without bothering to interview me, he hastened to input my alleged manhandling of Student D, which of course never happened.
The OSI probe was a fiasco. According to the interview notes of investigator Dennis Boyles, the same ex-NYPD detective who botched the Student A case, Student D said that he “was standing with” Safety Agents Philip Joseph and Nichelle Medina “when Mr. Nobile grabbed and pulled his arm.” But the two agents told Boyles that they saw no such contact. Math teacher Julio Sanchez, who joined me in breaking up the melee, confirmed their observation. But there was a fourth adult witness and she had a motive to lie. Ms. Williams was nursing a grudge because OSI dumped her cockamamie complaint that I had verbally abused her son earlier in the year. Alone, the Student A case was insufficient for suspension. At worst, it would generate a letter to my file. Ms. Williams’ added allegation was the tipping point, an excuse to suspend me first, two days before the end of school, and find the evidence later. “In view of the fact that Mr. Nobile was the subject of two OSI corporal punishment cases, OSI recommended that Mr. Nobile be reassigned,” Mr. Boyles wrote in his report. But hree years later, the Arbitrator scorched her false witness in scathing terms:
The Department urged the undersigned to credit Ms. Williams’ account of what happened between Student D and Mr. Nobile. I am unable to do so. There are major credibility problems with Williams’ testimony. … Williams’ testimony did not hold up under cross-examination. Her version of events was internally inconsistent. Her note to Cuthbert [recounting D’s complaint] did not indicate that she saw Nobile make contact with Student D. If she had seen Nobile push Student D, she would have said so in her note. The discrepancy between her note and her testimony is fatal to her credibility. … Nobile immediately and consistently denied grabbing and pushing Student D. He immediately formally complained about Student D assaulting him. There is every reason to believe Nobile, and several reasons not to believe Williams and student D. Specification 2 is not sustained.
The Masseuse from osi
As for the integrity of OSI’s corporal punishment inquiries, the Arbitrator mildly echoed my objections to Boyles’ m.o. and took a soft shot at the DOE for relying on his work product:
Nobile claimed that Boyles was biased against him. While I find no reason to conclude that Boyles was intentionally biased, there are discrepancies in Boyles’ handwritten notes and his investigative report which raise questions about how the Department would have handled this allegation had it been privy to both Boyles’ notes and report.
A stricter Arbitrator might have pointed out that the prosecutor had the same pre-hearing access to Boyles’ notes as I did. She read what I read and could have dropped Specification 2 owing to Boyle’s obvious mishandling of the evidence. Instead she put him on the stand as a reliable witness. Contrary to the Arbitrator, Boyles’ bias was unmistakable. For example, the difference between what Mr. Sanchez said in the interview notes and what Boyles wrote in his report casts suspicion on his professional ethics. According to Boyles’ handwritten notes, Mr. Sanchez exculpated me:
He did not see Mr. Nobile pull [Student D] when it was all over & [D] was against the wall.
This pinpoint testimony, directly contradicting Ms. Williams, was missing from Boyles’ report. A fair and honest investigator surely would have cited it in my favor. On cross-examination I inquired into this key deletion as far as the Arbitrator allowed. Boyles’ answer was laughable:
Boyles: Again, when you write your notes and then when you write the report, sometimes you change things to make it somewhat clearer or it reads better, but I believe that the facts given to me by Mr. Sanchez are all included in my report.
Nobile: How does it make it clearer by not writing [Mr. Sanchez] did not see Nobile pull [Student D] when he was, when it was all over--
Ms. Newman: [Interposing] I'm going to object. Now we're in an argument-
Nobile: --and when he was against the wall. How is that clearer?
Arbitrator: Mr. Nobile, you're arguing with the witness.
Plainly, Boyles had tried to fix the Student D case. By ignoring the significance of the agents’ and Mr. Sanchez’s statements on one hand and exalting Ms. Williams’ incriminations on the other, he succeeded … for three years.
The principal’s conscience
OSI cops do not wag the dog. Mr. Cuthbert could have defied Mr. Boyles and saved me from suspension. But that would have been out of character. The mercy bestowed on the rioting students was not extended to me. After I initiated a presciently unflattering staff survey on his leadership in February 2007, I was Chapter Leader non grata. Breaking the contract, he declined to meet with the Chapter Committee and me the entire second semester and rudely threw me out of his office three times when he became befuddled. Mr. Metzler, a stand-up guy unlike Mr. Slater, was witness to one of these meltdowns and wrote it up at my request: “The hearing of Mr. Nobile and Mr. Cuthbert was called to an early adjournment by Mr. Cuthbert when out of the blue, he declared ‘this meeting is over’. In addition, he refused to read any documents that Mr. Nobile handed him and yet wouldn't listen when Mr. Nobile read aloud. His demeanor was uncooperative, antagonistic and could only be interpreted as hostile towards Mr. Nobile.”
Where do I go from here? To State Supreme Court in Brooklyn to vacate the Arbitrator’s too Solomonic decision and $10,000 fine. If I win, I will shed ATR status and in theory have the right of return to Cobble Hill. But prosecutor Julianne Newman advised me that such restoration was out, saying that the Principal did not want me back. That is hard to believe. Once it sinks in that Ms. Williams lied about Student D and me and that my short-lived grab of Student A did not amount to corporal punishment, in good conscience he will feel compelled to apologize and call me home, even though he was kicked upstairs to mentor Principal after NCLB rated him Unsatisfactory.
P.S. I now ATR at Abraham Lincoln High School in Coney Island.