* Subsequent History: Matter of Board of Educ. of City Sch. Dist. of City of N.Y. v Elia.; Supreme Court, Albany County (McDonough, J.); Decision, order and judgment dismissed petition to review; March 21, 2018. *

Appeal of AMINAH LUCIO, from action of the Chancellor of the New York City Department of Education, Senior Supervising Superintendent Dorita Gibson, Committee Chairperson Stephen Hines and Deputy Director Marie Douyan, regarding a teacher rating and termination of employment.

Decision No. 17,090

(May 24, 2017)

Jason M. Wolf, Esq., attorney for petitioner

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent New York City Department of Education, Daniel J. LaRose, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of Dennis M. Walcott, as Chancellor of the New York City Department of Education[1] (“respondent or “NYCDOE”), Superintendant Dorita Gibson, Committee Chairperson Stephen Hines and Deputy Director Marie Douyan, to rate her unsatisfactory (“U”) on her 2009-2010 performance evaluation and to terminate her probationary appointment.  The appeal must be sustained.

In April 2006, petitioner was appointed as a probationary Supervisor of Schools Psychologist at the Bronx Integrated Service Center (“ISC”).  Pursuant to a
collective bargaining agreement between respondent and the Council of Supervisors and Administrators, this appointment was subject to a five-year probationary appointment.[2],[3]  Following the 2009-2010 school year, petitioner received an “unsatisfactory” rating (“U-rating”) on her evaluation form. 

By letter dated July 20, 2010, petitioner was notified that on August 20, 2010, the Senior Supervising Superintendent would review and consider whether her services should be discontinued. On August 20, 2010, the Senior Supervising Superintendent reaffirmed the discontinuance of petitioner’s probationary services, effective August 20, 2010.  Petitioner appealed her discontinuance, and on October 17, 2012, a review was held before the Chancellor’s Committee, at which testimony was presented from respondent Douyon, petitioner’s supervisor and the former Executive Director of Special Education, and Raymond Dewey.  The Chancellor’s Committee, after reviewing the testimony and documentary evidence, recommended that the discontinuance and U-rating be sustained.  By letter dated November 19, 2012, petitioner was notified that the Deputy Chancellor reaffirmed her discontinuance, effective August 23, 2010.  This appeal ensued.

Petitioner asserts that her U-rating should be annulled because her due process rights were violated and she was never provided with a copy of the paperwork upon which respondent relied for its determination in advance of the hearing and respondent failed to follow certain rules and regulations contained in Section IV of the Appeal Process in the Rating Manual.  Petitioner contends that respondent’s decision to rate her unsatisfactory and discontinue her probationary services was arbitrary and capricious, an abuse of discretion, made in bad faith and discriminatory.  She also claims that her services were discontinued due to retaliation and racial discrimination. She seeks reversal of her U-rating and reinstatement of her probationary appointment with seniority, benefits and back pay.

Respondent counters that the petition fails to state a cause of action and that the appeal is untimely.  Respondent also asserts that the determination to discontinue petitioner’s probationary services and to give petitioner a U-rating for the 2009-2010 school year was rationally based.

First, I must reject respondent’s allegation that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Respondent claims that petitioner’s time to commence an appeal of the termination of her appointment ran from August 20, 2010, the date on which the Deputy Chancellor affirmed the discontinuance of petitioner’s probationary services and the effective date of her termination.  To support its contention, respondent cites to the Court of Appeals’ decision in Khan v. New York City Dept. of Educ. (18 NY3d 457) (“Khan”).  In Khan, NYCDOE discontinued the services of a probationary social worker and a probationary school secretary who had both received U-ratings.  Both petitioners availed themselves of NYCDOE’s internal appeal procedure, after which both discontinuances were affirmed.  Both petitioners commenced Article 78 proceedings within four months of the conclusion of their respective internal appeal procedures.  Relying on its decision in Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y. (71 NY2d 763) (“Frasier”), the court found both proceedings untimely, holding that a determination pursuant to Education Law §2573(1)(a) to discontinue a probationary employee’s service becomes final and binding on that employee on his or her last day at work and that a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules challenging such determination must be filed within four months of such determination (Khan, 18 NY3d at 472).

However, petitioner cites Appeal of Iheagwam (50 Ed Dept Rep, Decision No. 16,191) to support her contention that the instant appeal was timely commenced pursuant to Education Law §310 and the Commissioner’s regulations because it was initiated within 30 days of the November 19, 2012 letter informing her that the Chancellor’s Committee reaffirmed the U-rating and the decision to discontinue her probationary appointment, which was effective August 23, 2012.  I agree.  The Commissioner has consistently held in such cases that, where a petitioner avails him or herself of respondent’s internal appeals process, an appeal brought pursuant to Education Law §310 is timely commenced within 30 days from the date of official notification of the outcome of respondent’s internal appeal process (Appeal of Iheagwam 50 Ed Dept Rep, Decision No. 16,191; Appeal of Rosa 47 id. 463, Decision No. 15,755).  Accordingly, I find petitioner’s appeal to be timely.

The standard of proof required to overturn a teacher rating is very high (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Schreiber, 44 id. 393, Decision No. 15,209). In the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the Chancellor (Appeal of Bristol, 33 Ed Dept Rep 202, Decision No. 13,023).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner claims that her unsatisfactory rating was arbitrary and capricious, and was issued in bad faith.  Specifically, she asserts that her rating was defective because respondent failed to comply with Part I of Section A of its Handbook entitled “Rating Pedagogical Staff Members”, which provides, in pertinent part, as follows:

1.   Rating Officer as a Trainer

To develop and maintain the maximum potential of each pedagogical employee, the principal and other rating team members should:

6. Provide a planned program for improvement with attainable goals.   

Petitioner also argues that respondent did not comply with Part II, Section F of the Rating Manual which states, in pertinent part, as follows:

F.  Responsibility for Evaluating Supervisory Personnel

Supervisory Performance Planning Reports must be initiated no later than the beginning of the school year.  Either late in the spring term of the preceding school year or early in the current school year, usually in the month of September, a conference must be scheduled to establish mutually agreed upon performance goals and specific objectives for the year.  The evaluating supervisor and the supervisor to be evaluated must meet at regular intervals during the year to review the objectives, modify them where required and discuss progress toward their achievement.  A minimum of two follow-up conferences in addition to the initial goal-setting conference is required.  The evaluating supervisor is required to complete an End-of-Year Summary which includes a summary of the employee’s strengths, areas for future concentration, and an indication as to whether or not the employee’s performance exceeded expectations, met expectations or was below expectations.  Descriptive evaluations are made on the objectives established at the beginning of the school year and during the rating period.

Petitioner further claims that respondent violated her due process rights by failing to give her a copy of the paperwork relied upon by the NYCDOE in advance of her hearing, in violation of the formal appeal procedures outlined in respondent’s appeal handbook in the section entitled “The Appeal Process.” 

Subpart 2a of Part A of Section I of respondent’s Handbook entitled “The Appeal Process” provides, in pertinent part, as follows:

1.  Documentation

The Appellant is to be furnished with a complete set of the documentation used by the Rating Officer to support the reason(s) for the adverse rating.

I find that petitioner has demonstrated that respondent’s determination to provide her with an unsatisfactory rating was made in gross error.  By failing to provide petitioner with any supporting documentation regarding her rating before the hearing, respondent prevented petitioner from having any way of knowing what documentation was to be used as the basis for the Department’s rating.[4]  Moreover, as noted by the hearing officer, there were several other flaws in respondent’s appeal procedures (i.e., the rating sheet failed to include any goals and objectives; petitioner’s supervisor failed to meet with petitioner to establish any goals and objectives; the rating sheet did not itemize supporting documentation; there was no log of assistance or “End of Year Summary” and petitioner’s supervisor failed to investigate or interview witnesses).  In Matter of Blaize v. Klein, 68 AD3d 759, the Second Department held that a teacher’s failure to receive, before the hearing, the complete set of documents on which the rating was based deprived the teacher of a substantial right, thus rendering the rating made in violation of a lawful procedure and subject to reversal.  Moreover, the record reveals that petitioner’s 2008-2009 rating was vacated and annulled by the Supreme Court, New York County for similar reasons.[5]  For these reasons, I find that petitioner has sustained her burden of proof and the unsatisfactory rating must be annulled and removed from petitioner’s personnel file. 

Based on the deficiencies in the review process which undermined the integrity and fairness of the process, the annulment of petitioner’s 2008-2009 rating for similar reasons, and the lack of hearing testimony to substantiate respondent’s rationale for petitioner’s termination, I find that respondent’s decision to terminate petitioner was made in bad faith.  A board of education has the unfettered right to terminate a probationary teacher’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason in violation of a statutory proscription or in bad faith (Education Law §3012[1][a]; James, et al. v. Bd. of Educ. of Central School Dist. No. 1 of the Towns of Orangetown and Clarkstown, et al., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Gordon v. Town of Queensbury, et al., 256 AD2d 784).  As noted above, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

By letter dated July 20, 2010, petitioner was notified that her services were being discontinued “based on the reasons included in the documentation [she] received with [her] rating sheet.”  Petitioner’s rating sheet cited four reasons for her termination:

1. Disrespectful and insubordinate behavior towards her immediate and other supervisors;
2. Failure to comply with directives from her supervisor;
3. Exhibits conduct unbecoming of a professional administrator; and
4. Does not always collaborate with colleagues and other administrators.

In support of petitioner’s termination, respondent submitted two letters from the Deputy Executive Director dated December 23, 2009 and June 11, 2010, detailing petitioner’s allegedly inappropriate behavior (unprofessional conduct, failure to follow directives of a supervisor and behavior unbecoming of a supervisor) which led to petitioner’s termination.

The gravamen of the December 23, 2009 letter is that petitioner allegedly refused to follow the directives of her supervisor, and that she was insubordinate, unprofessional and exhibited behavior unbecoming of a professional administrator.  First, the letter alleges, among other things, that petitioner failed to attend the interview of a colleague even though she said she would.  However, petitioner asserts that she had a scheduling conflict and there is no testimony to refute this claim.  The letter also asserts that petitioner called a principal “a ticking time bomb” and told the administrative manager she would need to contact that particular principal herself.  Petitioner asserts this allegation is untrue and there is no testimony in the record from the administrative manager that this even happened.  In fact, neither of these allegations was even discussed at the disciplinary hearing.

Moreover, the letter asserts that, during a monthly meeting with supervisory staff and NYDOE staff in October 2009, petitioner was asked two times to join the meeting and petitioner allegedly reacted with a demeaning tone of voice saying that “she was logging off her computer.”  While petitioner admits that she had to log off her computer, she asserts that the tone of her voice was not demeaning and that she was only one or two minutes late for the meeting.  Respondent produced no other witnesses to refute petitioner’s assertions.

The letter also references an incident wherein petitioner provided authorization to remove a school psychologist from her school and reassign her to the ISC without supervisory approval and that she had a conversation with the legal department on another issue without supervisory approval.  However, there is no testimony that these acts were outside petitioner’s job responsibilities and in fact, the record reveals that petitioner emailed her supervisor in both situations; however, one of her emails went unanswered and her supervisor asserted that no response was necessary with respect to the other email.

In addition, the letter also alleges that petitioner acted in a distracting manner at a November 30, 2009 staff meeting (i.e., that she was sitting on the edge of her seat flipping pages at a staff meeting).  However, petitioner produced testimony from a witness who indicated this incident never occurred and that she has never attended a meeting at which petitioner was distracting.

The June 11, 2010 letter centered around a complaint made against petitioner by a principal and assistant principal wherein it was alleged that they attended a professional development conference on April 24, 2010 and that petitioner allegedly came out of the room and very rudely asked them to leave the training and said “ladies you can go back to your schools now, you don’t seem to be interested in the PD.”  The principal indicated that petitioner was loud and unprofessional and as a result they left the training.  However, this statement was refuted by Raymond Dewey, who corroborated petitioner’s version of the events that there were three people chatting in the back of the room who were interrupting the speaker and that petitioner softly told the individuals “you are welcome to come in or return to your school or step outside and have a conversation.”  This witness also indicated that these administrators would not have been invited to this particular professional development conference because it was for IEP staff only.  In addition, petitioner provided witness statements from 25 of the 32 attendees who stated that they were not aware of any incident at this workshop.  Also noteworthy is that the record contains no testimony from the principal and assistant principal about this incident.

Moreover, one of the witnesses at the disciplinary hearing testified that the allegations in these letters were motivated by retaliatory and discriminatory intent and that petitioner was a primary target for her supervisor.

This case can be distinguished from Matter of Brown, 89 AD3d 486, wherein the Third Department held that any deficiencies in the teacher’s annual professional performance review (including the fact that there was no documentation annexed to the evaluation as required by the rating handbook and sections of the evaluation were left blank) did not render the determination to discontinue his employment arbitrary and capricious since the hearing testimony provided ample grounds for termination.  Here, however, the testimony at the hearing does not support respondent’s decision to terminate petitioner.  On the contrary, it appears to refute most, if not all, of the allegations set forth in those letters. 

Rather, this case is analogous to Kolmel v. City of New York, 88 AD3d 527, wherein the First Department determined that the deficiencies in the review process leading to the recommendation to deny tenure and terminate the teacher’s employment were not merely technical, but undermined the integrity and fairness of the process. In that case, the teacher submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe his teaching during either of his final two years at the school, which was in violation of the district’s rules concerning teacher ratings, and the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory ratings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. There was also testimony in the record that the teacher submitted a statement by a current employee who formerly worked at the high school that the principal pressured assistant principals to give negative U-ratings without observing teachers.  The court found that these deficiencies in the review process were not merely technical, but undermined the integrity and fairness of the process. 

Here, I find that respondent’s failure to provide petitioner with any supporting documentation of her rating before the hearing prevented petitioner from having any way of knowing what documentation was to be used as the
basis for the Department’s rating.[6]  Moreover, respondent violated several other procedures in its handbook (i.e., the rating sheet failed to include any goals and objectives; petitioner’s supervisor failed to meet with petitioner to establish any goals and objectives; the rating sheet did not itemize supporting documentation; there was no log of assistance or “End of Year Summary” and petitioner’s supervisor failed to investigate or interview witnesses).  In addition, petitioner’s 2008-2009 rating was annulled by Supreme Court, New York County for similar reasons.  I find that these continued deficiencies in the review process leading to petitioner’s 2009-2010 U-rating are not merely technical, but they undermined the integrity and fairness of the process.  Moreover, unlike the facts in Matter of Brown, there is not sufficient testimony in the record to support respondent’s decision to terminate petitioner. On the contrary, petitioner produced witness statements and witness testimony to refute most, if not all, of the allegations in respondent’s letters, upon which it relied for petitioner’s termination.  There was also testimony in the record from another employee who was supervised by Ms. Douyon who indicated that petitioner was the primary target of harassment from her supervisor.  Based on the record before me, I find that petitioner was terminated in bad faith and must be reinstated to her former position.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent remove the unsatisfactory rating for the 2009-2010 school year from petitioner’s personnel file; and

IT IS FURTHER ORDERED that respondent reinstate petitioner to the position to which she is entitled in accordance with this decision, and provide her with back pay and benefits and seniority credit from August 20, 2010, less any compensation she may have earned in the interim.

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