Saturday, July 14, 2012

Andrew Peck(ing) Order: Love and Marriage = Biased Federal Magistrate?

Dropped in from the trenches:
Would YOU want a Federal Judge who is married to an Assistant Principal working at a colleague's or your New York City Department of Education school sitting in judgment on your lawsuit that has raised claims against the New York City Department of Education for employment discrimination and unconstitutional conduct by the NYCDOE ?

If you find this acceptable, then read no further.

However, if you find this to be unacceptable, then please read on:

"My wife is retired from the DOE, where she was an Assistant Principal at a Manhattan Alternative High School. She had no involvement in the "rubber rooms" and her former job is not a basis for my recusal. In any event, the issue is largely moot because I do not foresee having any further role in this case."

                     Andrew J. Peck, United States Magistrate Judge writing onJuly 2, 2012 in: 
                     Adams, et al. v. New York State Education Dep't, et al., Case No. 08 Civ. 5996,
                     United States District Court for the Southern District of New York.District Court,
                     Document No. 340. [Attached in Full below].
Magistrate Peck’s statement came in response to a July 2, 2012 letter to him from Nicholas A. Penkovsky, Esq. In the Adams lawsuit Mr. Penkovsky represents the plaintiffs Dr. Michael Ebewo, Ms. Joann Hart, Dr. Julianne Polito, Ms. Thomasina Robinson, and Ms. Brandi Scheiner, who were all tenured teachers in the New York City Public School system. Magistrate Peck has been presiding on the Adams case since June 2008.

In his letter, Mr. Penkovsky informed Magistrate Peck that he had just learned that Magistrate Peck’s Financial Disclosure Report for Calendar Year 2010 ("2010 Report") included entries in which the Magistrate reported that the Magistrate’s spouse receives a Pension from the New York City Board of Education. Another entry in the Report showed that the Magistrate listed an N.Y.C. Teachers Retirement TDA valued at between $250,001.00 and $500,000.00 on a Cash Market Valuation Method.

Mr. Penkovsky asked the Magistrate to recuse himself from presiding on the lawsuit and informed the Magistrate that based upon the recent disclosures that plaintiffs also intend to seek all appropriate relief, including relief under Federal Rule of Civil Procedure 60 to vacate all decisions the Magistrate made in this case, the judgment that has been entered dismissing the Adams case, and to seek reassignment of this case to a different Circuit.
Adams is the successor suit to Teachers4Action, et al. v. Bloomberg. et al., Case No.08 Civ. 0054 (VM)(AJP), U.S. District Court, Southern District of New York. Magistrate Peck also presided on Teachers4Action.

(The Magistrate’s order, which is attached, was written on Mr. Penkovsky’s July 2, 2012 letter and the letter, in full is therefore attached.)
The 2010 Report came to the plaintiffs’ attention when the same Magistrate refused to recuse himself in another case, DaSilva Moore, et al. v. Publicis Groupe, et al., Case No. 11 Civ. 1279 (ALC) (AJP), a gender discrimination lawsuit.

The plaintiffs in DaSilva Moore had asked the Magistrate to recuse himself in that case, when they learned that he had financial dealings with a supplier of electronic discovery systems the Magistrate ruled that the parties must use. Attached to the DaSilva Moore plaintiffs' recusal motion as Exhibit CC is a true and correct copy of Judge Peck’s Financial Disclosure Report for Calendar Year 2010.

See DaSilva Moore, et al. v. Publicis Groupe, et al., Case No. 11 Civ. 1279 (ALC) (AJP) at Docket No. 171-3, particularly at pp. 36, 39, and 50.
If you are still reading then you need to know that your decision is to be based on a simple practical standard.

The legal standard for recusal in Adams, as in DaSilva, as in Teachers4Action is simple. Would you want this Magistrate sitting on your case against the NYCDOE? What would you do if you were this Magistrate so as to appear fair? In other words, what would an ordinary reasonable person believe about the justice being served here and under these conditions? The Magistrate repeatedly claimed to be fair because his mom was a former NYC Public School teacher. He just never said his spouse was an NYC Public School administrator.

The applicable federal statute reads, "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

28 U.S.C. § 455(a). The command is mandatory. The questioner is you, not the "justice, judge, or magistrate judge". Ask yourself, can I reasonably question the impartiality of the "justice, judge, or magistrate judge".

Almost six decades ago, the Supreme Court stated the principle that still applies today, "[T]o perform its high function in the best way justice must satisfy the appearance of justice." In the Matters of Lee Roy Murchinson, et al., 349 U.S. 133, 136, 75 S.Ct. 623, 625 (1955).
Now ask yourself, these questions.

(1) Is the appearance of justice satisfied by the Magistrate having sat on this case brought by rank and file tenured union teachers employed by the New York City Department of Education when the Magistrate’s wife was/is an Assistant Principal working as an administrator for the New York City Department of Education during these tumultuous times of dismissals of senior and tenured teachers?

.................and then all that followed since 2008 and Teachers4Action ..........

(2) Do the Magistrate's recommendations to dismiss this lawsuit, that raised among other claims, claims of age discrimination and the unconstitutional use of Rubber Rooms, where teachers sat for years without a hearing or even charges, appear to satisfy justice when there was absolutely no discovery, and his decision was solely based upon following the writings of the NYCDOE lawyers who said that the teachers have no cause of action?

(3) Does the Magistrate's meting out $28,000.00 in monetary sanctions against the teachers themselves, and their lawyers, appear to satisfy justice?

(4) Does it appear to satisfy justice when the Magistrate unilaterally declares that the NYCDOE did no harm to these tenured teachers who sat in Rubber Rooms for years without a hearing or charges?

We would like to hear from you. You can e-mail us at:
Thank you for your time and attention,
Nicholas A. Penkovsky, Esq.
Attorney for Dr. Michael Ebewo,
Ms. Joann Hart, Dr. Julianne Polito,
Ms. Thomasina Robinson, and Ms. Brandi Scheiner

Dkt 340 Refusal to Recuse

The opinions expressed on EdNotesOnline are solely those of Norm Scott and are not to be taken as official positions (though Unity Caucus/New Action slugs will try to paint them that way) of any of the groups or organizations Norm works with: ICE, GEM, MORE, Change the Stakes, NYCORE, FIRST Lego League NYC, Rockaway Theatre Co., Active Aging, The Wave, Aliens on Earth, etc.

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