Appeal of MANDI RAINES from action of the Board of Education of the City School District of the City of New York regarding a teacher rating.

Decision No. 15,246

(July 15, 2005)

Moses E. Osayame, Esq., attorney for petitioner

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Susan Davidson, Esq. of counsel

MILLS, Commissioner.--Petitioner challenges an unsatisfactory performance rating by the Board of Education of the City School District of the City of New York ("respondent") for the 2002 summer school session. The appeal must be sustained.

Petitioner is a tenured arts teacher at Brian Piccolo M.S. 53Q. In August 2002, petitioner's supervisor observed her teaching in the classroom. The observation report indicated that the coursework pacing schedule was not being followed; computers were not being used and the bulletin board had not been updated with student work samples. The report had three recommendations for petitioner: update classroom bulletin boards with student work; follow the coursework pacing schedule and encourage students to complete computer simulations. The report further indicated that petitioner received an unsatisfactory rating.

Petitioner's union brought a grievance against respondent contending that material placed in petitioner's file was either unfair or inaccurate within the meaning of the applicable collective bargaining agreement. After a hearing, an arbitrator ordered respondent to modify the August 1, 2002 observation report by deleting the recommendation regarding the coursework pacing schedule.

On January 20, 2004, the supervisor modified the report to reflect the arbitrator's decision. He did not, however, change the unsatisfactory rating. Petitioner then appealed this action to the Chancellor. On May 20, 2004, the Chancellor's designee denied petitioner's appeal from the adverse rating. This appeal ensued.

Petitioner alleges that respondent's decision denying her appeal was arbitrary and capricious and seeks reversal of the rating. She also asks that I reject respondent's answer as untimely.

Initially, I will address respondent's answer. Section 275.13 of the Commissioner's regulations requires a respondent to answer a petition within 20 days from the time of service.  Extensions may be granted at the discretion of the Commissioner upon timely application therefor (8 NYCRR �276.3).  Since the petition in this appeal was served on June 21, 2004, respondent was required to serve its answer by July 12, 2004.  However, counsel for respondent did not request an extension of the time to answer, did not serve an answer until July 30, 2004, and has not offered a sufficient excuse for the late submission.  Accordingly, I find no basis to accept the late answer, and the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR �275.11; Appeal of Laughlin-Jackson, 41 Ed Dept Rep 290, Decision No. 14,688; Appeal of Bronico, 32 id. 54, Decision No. 12,755; Appeal of Walker, 31 id. 32, Decision No. 12,558).

With respect to appeals challenging unsatisfactory ratings, in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his judgment for that of the Chancellor (Appeal of Gordon, 36 Ed Dept Rep 343, Decision No. 13,743; Appeal of Bristol, 33 id. 202, Decision No. 13,023; Matter of Taylor, 23 id. 482, Decision No. 11,288). Petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of Ewart, 44 Ed Dept Rep ___, Decision No. 15,127) and the burden of demonstrating a clear right to the relief requested (Appeal of Goldin, 43 Ed Dept Rep 453, Decision No. 15,048).

The Chancellor's designee stated in her decision letter that the rating was sustained "as a consequence of adverse notations on the annual rating report, testimony at the Review and specifically, failure to adhere to the curriculum and to implement suggestions made by her supervisor." Based on the record before me, I find the Chancellor's designee's determination to be in gross error. Petitioner's August 1, 2002 observation focused on petitioner's alleged failure to follow the coursework pacing schedule, not a failure to adhere to the curriculum itself. Moreover, the recommendation regarding the coursework schedule was deleted from the report after the parties went to arbitration. I also find respondent's determination that petitioner did not implement changes based on her supervisor's suggestions to be without merit. Petitioner's supervisor observed her on July 19, 2002 and suggested that she use praise charts as well as daily plans. Less than two weeks later at the August 1, 2002 observation, petitioner's supervisor commended her for implementing both suggestions. While the July 19, 2002 observation also suggests that petitioner was not adhering to the pacing schedule, I find that to be inconsequential because petitioner received a satisfactory rating on that observation report and the August 1, 2002 observation report was modified to delete that recommendation after arbitration. Finally, contrary to what is stated in the Chancellor's designee's determination letter, there are no notations on the rating report for the summer school session.

Therefore, based on the record before me, I find that petitioner has demonstrated that the Chancellor's determination sustaining her unsatisfactory rating was made in gross error.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent remove the unsatisfactory rating for the July/August 2002 period from petitioner's file.

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