Eastern District of New York

Gershon, Judge


Gold, Magistrate


CV 01 1105


THIRD AMENDED COMPLAINT


PLAINTIFF DEMANDS TRIAL BY JURY



DAVID ROEMER,


Plaintiff,


- against -


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


Defendants.



  1. At all times hereinafter mentioned, plaintiff was and still is a resident of Brooklyn, New York.

  2. The Board of Education of the City School District of the City of New York ("Board of Education") is a public school board whose main office is at 110 Livingston Street, Brooklyn, New York. The Public Employment Relations Board ("PERB") is a New York State agency whose main office is at 80 Wolf Road, Albany, New York. Herbert Monte Levy is an attorney who is licensed to practice as an attorney and counselor at law under the laws of the State of New York and who maintains offices for the practice of his profession at 60 East 42nd Street, New York, New York. Joyce Coppin was the Superintendent of Brooklyn High Schools while the plaintiff was employed by the defendant Board of Education and currently has an office at 110 Livingston Street, Brooklyn, New York. Tom Pappas is the Secretary and Chief of Staff of the United Federation of Teachers and has offices at 260 Park Ave. South, New York, New York.

  3. The jurisdiction of this court is invoked pursuant to section 1 of the fourteenth amendment to the Constitution of the United States of America, and pursuant to 42 U.S.C. § 1983, 1985(3), and 1986. The plaintiff seeks redress for the deprivation of the plaintiff's constitutional rights which are guaranteed by the Due Process Clause of the fifth amendment, Due Process and Equal Protection Clause of the fourteenth amendment, and freedom of speech and freedom of association of the first amendment. The plaintiff contends that Section 3020-a of the Education Law of New York State is unconstitutional because it does not allow tenured teachers to appeal arbitration awards under Article 78 of the CPLR, a right that is granted to all other public employees provided with compulsory arbitration in disciplinary matters.

  4. In September, 1984, the defendant Board of Education hired the plaintiff to teach physics at Midwood High School in Brooklyn, New York. The plaintiff continued to teach at Midwood High School in Brooklyn until February, 1990, when the plaintiff was excessed and transferred to Erasmus Hall High School, also in Brooklyn. In September, 1994, the defendant voluntarily transferred to Edward R. Murrow High School in Brooklyn.

  5. The defendant Board of Education gave the plaintiff a certification of completion of probation on the 28th day of September, 1997. In accordance with Education Law of New York State, the plaintiff became a tenured teacher and, thereby, acquired a property interest in his position as a teacher with the defendant Board of Education.

  6. In September,1994, the plaintiff was given four classes in Regents Physics to teach at Edward R. Murrow High School. Over a period of the next three months, the Assistant Principal of Supervision of the Science Department and the Principal observed the plaintiff teach six physics lessons. The plaintiff's lessons were rated as being unsatisfactory.

  7. On or about the 4th day of November, 1994, the United Federation of Teachers ("UFT"), the plaintiff's union, in accordance with Article 24 of the collective bargaining agreement, submitted a request to the defendant Board of Education to conciliate the approach that the plaintiff should use in teaching physics. On or about the 2nd day of December, 1994, the Office of the Chancellor of the defendant Board of Education accepted the request for conciliation.

  8. On the 29th day of May, 1995, the plaintiff wrote a letter to the Principal of Edward R. Murrow High School in accordance with the grievance procedures set forth in the collective bargaining agreement. The grievance letter complained that the plaintiff's supervisors were not following the procedures for conciliation set forth in Article 24 of the collective bargaining agreement.

  9. On or about the 20th day of June, 1995, the plaintiff was given a teaching program for September, 1995, that was identical to the plaintiff's teaching program for the 1994-1995 school year.

  10. On or about the 6th day of October, 1995, the defendant Board of Education, through the Superintendent of Brooklyn High Schools, denied the aforementioned grievance.

  11. On the 16th day of January, 1996, pursuant to provisions in the collective bargaining agreement, the plaintiff met with executives of the UFT. The plaintiff asked the UFT to appeal the denial of the plaintiff's grievance to the Chancellor of the defendant Board of Education in accordance with the procedures of the collective bargaining agreement. The UFT agreed to appeal the plaintiff's grievance to the Chancellor, but failed to do so.

  12. In the middle of the school term, on the 29th day of February, 1996, the plaintiff was relieved of his teaching duties by the defendant Board of Education and assigned to administrative duties at another location. This was done without the plaintiff's consent for disciplinary purposes. 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 done nothing wrong and the defendant Board of Education knew the plaintiff had done nothing wrong. Upon information and belief, the defendant Board of Education's motive for removing the plaintiff from the classroom was retaliation for the plaintiff's request to appeal the denial of the plaintiff's grievance to the Chancellor. Upon information and belief, the agreement between the defendant and the plaintiff to teach at Edward R. Murrow in June, 1995, was an agreement to teach for the entire school year. The plaintiff had a property interest in teaching for the entire 1995-1996 school year.

  13. On or about the 20th day of November, 1996, during a regular calendar meeting open to the public, the defendant Board of Education publicly voted that there was probable cause for charges of incompetence and insubordination against the plaintiff.

  14. Upon information and belief, the aforementioned charges were unlawful and fraudulent because they were contrived to sidestep the conciliation process which had not been completed. The first element of fraud in the document that specified the charges against the plaintiff was the omission of a reference to the conciliation agreement referred to in ¶ 7 above, a disciplinary letter from defendant Joyce Coppin to the plaintiff dated December 20, 1995, and the grievance letter referred to in ¶ 8 above. The second element of fraud in said document was the misrepresentation, implied from the fact that the plaintiff was given a teaching program for the 1995-1996 school year, that the plaintiff had promised to improve his teaching in the 1995-1996 school year. The third element of fraud was the representation that the plaintiff had undergone proper and standard remediation for poor teaching. The fourth element of fraud was the representation that the plaintiff was an incompetent teacher. The fifth element of fraud is that every one responsible for the generation of that document knew or should have known of the aforementioned omissions and misrepresentations. The sixth element of fraud is that members of the public, who witnessed the members of the board of the defendant Board of Education publicly vote that there was probable cause for the charges against the plaintiff, believed that the charges were true. The seventh element of fraud is that it was intended that the charges result either in the plaintiff's immediate termination or in disciplinary hearings under Education Law. The eighth element of fraud is that the plaintiff was harmed because the charges resulted in the plaintiff's termination. The ninth element of fraud is that the public was harmed because public school children did not receive the benefits that would have devolved upon them as a result of completing the conciliation process. The tenth element of fraud is that the public was forced to incur the legal expenses of hearings held under Education Law.Upon information and belief, the aforementioned charges were unlawful and fraudulent because they were contrived to sidestep the conciliation process which had not been completed.

  15. Upon information and belief, 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.

  16. In accordance with Education Law, a hearing officer, Howard C. Edelman, Esq., was selected to review the charges. Mr. Edelman conducted pre-hearing conferences on the 24th day of March, 1997, and the 11th day of April, 1997. The plaintiff was represented at these conferences by Harold M. Weiner, Esq., and the defendant Board of Education was represented by Michael Mazzariello, Esq.

  17. On or about the 24th day of March, 1997, Mr. Weiner made a motion before Mr. Edelman to dismiss the charges against the plaintiff for lack of specificity. Under Education Law, the hearing officer may dismiss any or all of the charges, without prejudice to the filing of more specific charges, upon the motion of the charged party.

  18. On or about the 24th day of March, 1997, Mr. Edelman denied Mr. Weiner's motion to dismiss the charges. Upon information and belief, Mr. Edelman violated the plaintiff's right to due process of law by denying the motion to dismiss the charges, because the plaintiff was entitled to that relief due to the unlawful and fraudulent nature of the charges against the plaintiff.

  19. On or about the 11th day of April, 1997, with the knowledge of Mr. Edelman, Mr. Weiner negotiated a settlement of the charges against the plaintiff with Mr. Mazzariello. Mr. Weiner and the plaintiff signed the agreement, which was drafted by defendant Board of Education.

  20. On the 13th day of June, 1997, Mr. Edelman began hearings concerning the charges against the plaintiff, notwithstanding the aforementioned agreement to stop the hearings. Upon information and belief, Mr. Edelman, by holding hearings, violated the plaintiff's right to due process of law, since the case was settled. On or about the 12th day of May, 1998, after seven days of hearings, Mr. Edelman, with the concurrence of one of the panel members, recommended the termination of the plaintiff from his position with the defendant Board of Education.
  21. On or about the 14th day of May, 1998, the minority panel member wrote a decision agreeing with the findings of the majority, but disagreeing with the recommended punishment. The minority panel member recommended that the plaintiff be transferred to another school with no additional penalty.

  22. Upon information and belief, the findings and recommendations of the panel violated the plaintiff's right to due process of law, because the panel failed to give the plaintiff the remedy the plaintiff was entitled to. Said remedy was for the plaintiff to be reinstated to the plaintiff's former position. Said remedy also included reimbursement of all legal expenses, pursuant to Education Law, because the charges were frivolous.

  23. Upon information and belief, the findings and recommendations of the panel are totally irrational because they ignored the fact that the conciliation process was not completed. Furthermore, the findings and recommendations of the panel are not based upon the evidence and testimony at the hearing.

  24. On or about the 24th day of June, 1998, the plaintiff filed a petition with the Supreme Court of the State of New York, under Article 75 of the CPLR, to vacate the findings and recommendations of the aforementioned arbitration panel. On or about the 22nd day of October, 1998, the defendant Board of Education filed a cross-motion to dismiss the plaintiff's petition.


  25. On or about the 4th day of November, 1998, the plaintiff retained defendant Levy to represent the plaintiff before the Supreme Court of the State of New York in the aforementioned petition. On or about the 18th day of November, 1998, defendant Levy withdrew from the case. Upon information and belief, the defendant Levy was guilty of violating the plaintiff's right to due process of law, because the actions of the defendant Levy forced the plaintiff, who has no legal training, to represent himself in court.


  26. On or about the 23rd day of November, 1998, the plaintiff filed a complaint against defendant Levy for unethical conduct with the Departmental Disciplinary Committee of the Supreme Court, Appellate Division: First Judicial Department. No action was taken against the defendant Levy.


  27. On or about the 3rd day of December, 1998, the plaintiff, acting pro se, prepared a document titled Reply Affidavit in Support of Petition in response to the cross-motion to dismiss the plaintiff's petition. The Reply Affidavit in Support of Petition states a cause of action and affixes supporting exhibits.
  28. On the 10th day of December, 1998, Judge David B. Vaughan of the Supreme Court, dismissed the plaintiff's petition.


  29. Upon information and belief, Judge Vaughan violated the plaintiff's right to due process of law because he did not grant the plaintiff the remedy the plaintiff was entitled to. Upon information and belief, Judge Vaughan acted in collusion with the defendant Board of Education, because Judge Vaughan did not require the defendant Board of Education to answer the plaintiff's allegations set forth in the Reply Affidavit in Support of Petition.

  30. On or about the 29th day of May, 1999, the plaintiff perfected an appeal from Judge Vaughan's order to the Appellate Division: Second Department of the Supreme Court of the State of New York by writing a brief and submitting a record on appeal.

  31. On or about the 30th day of June, 1999, the defendant Board of Education filed a respondent's brief. The respondent's brief is not responsive to the plaintiff's brief, because the respondent's brief does not explain how the defendant Board of Education's conciliation agreement with the plaintiff transformed into charges of incompetence and insubordination against the plaintiff.

  32. On or about the 18th day of January, 2000, the Appellate Division: Second Department affirmed the order of Judge Vaughan.

  33. On or about the 24th day of January, 2000, the plaintiff wrote a complaint against Judge Vaughan and Justices James Guy Mangano, William C.Thompson, Myriam J. Altman, and Daniel F. Luciano of the Appellate Division: Second Department to the New York State Commission on Judicial Conduct. The complaint accused the judges of collusion and covering up wrongdoing by the defendant Board of Education.

  34. On the 13th day of April, 2000, the plaintiff filed an improper practice charge with the defendant PERB against the UFT and the defendant Board of Education. The charge accused the UFT and the defendant Board of Education of conspiring to file false and fraudulent charges against the plaintiff under Education Law.
  35. On or about the 19th day of April, 2000, the defendant PERB sent the plaintiff a letter advising the plaintiff that the aforementioned charges were deficient and that the plaintiff had until the 10th day of May, 2000, to file amended charges.

  36. On or about the 1st day of May, 2000, the defendant PERB dismissed the aforementioned improper practice charge. Upon information and belief, the defendant PERB violated the plaintiff's right to due process of law by dismissing the plaintiff's complaint before the 10th day of May, 2000, because it deprived the plaintiff of the right to submit an amended complaint.


  37. On or about the 5th day of May, 2000, the plaintiff filed an exception to the dismissal of the charges pursuant to the rules and regulations of the defendant PERB. Papers charging the UFT and defendant Board of Education with wrongdoing were served on the UFT and defendant Board of Education on the 11th and 16th day of May, 2000. The UFT and the defendant Board of Education did not answer the charges.

  38. On or about the 7th day of August, 2000, the defendant PERB wrote a decision and order affirming the dismissal of the plaintiff's complaint. This order and decision is attached to this complaint. Upon information and belief, the defendant PERB violated the plaintiff's right to due process of law by failing to assign an administrative judge to conduct a hearing as called for by the rules and regulations of the defendant PERB.

  39. On or about the 21st day of August, 2000, the plaintiff filed a petition with the Supreme Court of the State of New York under Article 78 of the CPLR to vacate the decision and order of the defendant PERB.

  40. On or about the 19th day of September, 2000, the plaintiff filed a motion with Supreme Court Judge David B. Vaughan, who was assigned to the plaintiff's petition against defendant PERB, to recuse himself on the grounds that Judge Vaughan had a personal interest in the case. The personal interest arose from the fact that the plaintiff wrote a letter of complaint against Judge Vaughan to the New York State Commission on Judicial Conduct, as described in paragraph 41 of this complaint.

  41. On the 9th day of November, 2000, Judge David B. Vaughan dismissed the plaintiff's petition to vacate the decision and order of defendant PERB. Upon information and belief, Judge David B. Vaughan violated the defendant's right to due process of law because he had a personal interest in the outcome of the proceeding. If Judge Vaughan had ruled in favor of the plaintiff, it would have the effect of supporting the plaintiff's allegations against Judge Vaughan made to the New York State Commission of Judicial Conduct.

  42. On or about the 24th of May, 2000, the plaintiff commenced an action against the defendant Levy for legal malpractice with the Supreme Court of the State of New York.

    On or about the 3rd day of July, 2000, the plaintiff filed a motion for summary judgment against the defendant Levy.

  43. On or about the 9th day of August, 2000, Supreme Court Judge Marsha L. Steinhardt denied the plaintiff's motion for summary judgment and granted the defendant Levy's cross-motion for dismissal of the plaintiff's complaint.

  44. On or about the 23rd day of August, 2000, the plaintiff filed an appeal from Judge Steinhardt's order with the Appellate Division: Second Department. On or about the 27th day of October, 2000, the plaintiff perfected the appeal by filing a record of appeal and a brief.

  45. On or about the 12th day of December, 2000, the plaintiff filed a motion with the Appellate Division: Second Department to transfer the appeal from Judge Steinhardt's order to the Appellate Division: First Department in accordance with CPLR 5711. The judges of the Appellate Division: Second Department had a personal interest in the case because of the complaint the plaintiff made against Justices Mangano, Thompson, Altman, and Luciano to the New York State Commission on Judicial Conduct, as described in paragraph 41 of this complaint.

  46. On or about the 20th day of February, 2001, the Appellate Division: Second Department affirmed the order and decision of Judge Steinhardt.

  47. Upon information and belief, the Appellate Division: Second Department violated the plaintiff's right to due process of law by failing to transfer the case to the First Department. Had the Appellate Division: Second Department ruled in favor of the plaintiff, it would have the effect of supporting the plaintiff's allegations against members of the Appellate Division: Second Department.
  48. WHEREFORE, plaintiff David Roemer respectfully demands that judgment be entered that directs the Board of Education to reinstate the petitioner to his position as a tenured teacher of physics at Edward R. Murrow High School. The plaintiff further demands back pay and all other emoluments of employment from the date of his termination to the date of his reinstatement. The further demands compensation for emotional distress, loss of reputation, and loss of companionship in the amount of $5,000,000. The plaintiff further demands punitive damages of $5,000,000. The plaintiff further demands to be reimbursed for legal expenses in the amount of $47,971 with interest of $27,438 plus the costs and disbursements of this action, and granted such other and further relief the Court may deem to be just and proper in the circumstances.

  49. Signed

    David Roemer, pro se
    345 Webster Ave., Apt. 4-O Brooklyn, New York 11230 718-438-7375