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Judge: Advocacy By Teacher's Union Rep is Protected Speech

A New York state teacher who was the union representative at his school was engaged in First Amendment-protected speech on matters of public concern when he advocated on behalf of his colleagues with the principal, a federal district judge has ruled.

The judge denied the summary judgment motion of the Yonkers school district and the school principal, which will allow the teacher's suit alleging retaliation for his union activity to go forward.

The case involves Marc Pekowsky, a music teacher at Yonkers Middle High School who was also the building representative for the Yonkers Federation of Teachers, an affiliate of the American Federation of Teachers.

Pekowsky clashed frequently with the school's principal, Jane Wermuth. She once told Pekowsky she didn't want to deal with him and told a teacher she would only deal with the union's alternate representative.

A 2012 incident led to Pekowsky being transferred to another teaching job split between schools, which resulted in his lawsuit for retaliation. When the principal scheduled meetings during the school day with two teachers to discuss their teaching methods and absences, Pekowsky arranged for another teacher to cover his music class so he could attend the meetings as the teachers' union representative.

The principal believed Pekowsky had excused himself from his own class without proper approval from the adminstration, court papers say. Later the same day, Pekowsky also had a run-in with a student who had been abusive to teachers.

Soon after, district administrators transferred Pekowsky to a position in which he would split his time teaching at two other middle schools. A letter of reprimand was placed in his file.

Pekowsky filed his lawsuit alleging illegal retaliation for his union activity.

The Yonkers district filed a motion for summary judgment on the basis that Pekowsky's union activity was not protected by the First Amendment, that the teacher suffered no adverse job action from the transfer, and that it would have taken the same actions regardless of the union activity.

In his May 29 decision in Yonkers Board of Education v. Pekowsky, U.S. District Judge Denise Cote of Manhattan rejected all three claims.

The key element of the ruling is that union activity by a teacher's union rep is protected speech on a matter of public concern. That ruling comes as many courts have narrowed the amount of on-the-job speech by public employees that is protected.

"When Pekowsky advocated on behalf of fellow union members in meetings with the administration, he spoke as a union representative, not as a teacher," Judge Cote said. "Union representation of teachers is a matter of importance to the functioning of our public education system. It is a feature of contemporary public debates. Consequently, Pekowsky's speech was on a matter of public concern and is protected."

The judge said that "a reasonable jury could find that Pekowsky's protected union activity was a motivating factor in the decision to transfer Pekowsky and to place the [reprimand] letter in his file."

Cote further held that the principal was not entitled to qualified immunity in the case because it was clearly established that union activity like Pekowsky's was protected speech.

"A reasonable official would have known that it is illegal to retaliate against a union representative for zealously advocating on behalf of the union by involuntarily transferring that representative or by drafting a letter of reprimand containing baseless charges," the judge said.

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