Appeal of EDMOND FARRELL from action of the New York City Department of Education and Chancellor Joel I. Klein regarding an unsatisfactory rating.

Decision No. 15,308

(September 15, 2005)

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Robert Katz and Ilana A. Eck, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges an unsatisfactory rating for his teaching performance during the 2003-2004 school year. The appeal must be dismissed.

During the 2003-2004 school year, petitioner was a tenured mathematics teacher at John Adams High School, a public school now operated by the New York City Department of Education. Petitioner has taught there since September 1994, and for nine consecutive years received satisfactory ratings from two different principals.

In 2003-2004, Grace Zwillenberg, who had been an administrator at the school, became interim acting principal and later principal. During that school year, petitioner was observed on six different occasions by various administrators, from October 21, 2003 through June 7, 2004. On each occasion, the reviewers considered his performance unsatisfactory. At the end of that school year, petitioner received an unsatisfactory rating for the year.

Petitioner appealed the rating pursuant to district bylaws. On November 8, 2004, a Chancellor's Administrative Review Committee ("Committee") chaired by Marianne Alvarez convened to hear petitioner's appeal. Petitioner was accompanied by a representative of the United Federation of Teachers, who was not an attorney. The Committee received testimony by telephone from Principal Zwillenberg and from Math/Business Assistant Principal Bahaa Aboughaida. Petitioner also testified, and introduced 24 documents. Chairperson Alvarez ruled that certain witnesses proposed by petitioner would not be heard.

On November 15, 2004, the Committee recommended to the Chancellor that petitioner's appeal be denied. By letter dated November 29, 2004, Carmen Farina, the Deputy Chancellor for Teaching and Learning, as the Chancellor's designee, denied petitioner' s appeal. She wrote:

Please be advised that the appeal of Mr. Edmond Farrell from the rating of "Unsatisfactory" for the period ending June 2004 has been denied and the said rating is sustained as a consequence of ratings on the annual review form, testimony at the Review and failure to provide an acceptable level of instructional service for the students in his charge.

Petitioner states that he received this letter on December 3, 2004. He commenced this appeal on December 30, 2004.

Petitioner asks that I vacate the unsatisfactory rating and direct respondents to rate him satisfactory for the 2003-2004 school year.

Petitioner contends, among other things, that the Chancellor's determination was arbitrary, capricious, and in bad faith. Petitioner further claims that he had no legal or contractual obligation to implement the suggestions made by reviewers throughout the year. He maintains that he was never given a copy of the professional performance review plan upon which he was rated, and claims that the review plan did not comply with �100.2(o)(2) of the Commissioner' s regulations. He also claims that the Committee deprived him of due process because he was not represented by counsel, his witnesses were not allowed to testify, and two of respondents' witnesses were allowed to testify by telephone.

Respondents deny petitioner's claims, and contend that the observations, the unsatisfactory rating, the review process, and the Chancellor's final determination all complied with law.

Before considering the merits, I must comment on certain materials submitted by petitioner, beginning with his reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner also requests that I consider a videotape of an appearance by petitioner on a television newscast and a copy of his annual performance review for the 2004-2005 school year. Petitioner has not shown that these additional materials relate to the subject matter of this appeal. Consequently, I have not considered them.

The standard of proof required to overturn a teacher rating is very high. In Appeal of Gordon (36 Ed Dept Rep 343, Decision No. 13,743), which also concerned a teacher rating, I wrote:

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 Bristol, 33 Ed Dept Rep 202; Matter of Taylor, 23 id. 482). Petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Marek, supra; Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327).

(see alsoAppeal of Schreiber, 44 Ed Dept Rep ___, Decision No. 15,209, in which I adhered to that standard).

Petitioner claims that his unsatisfactory rating of June 28, 2004, which was upheld by the Chancellor's designee on November 29, 2004, was arbitrary and capricious, and was issued in bad faith. Respondents have provided the actual observation reports from six occasions during the 2003-2004 school year. They provide substantial factual detail regarding the lessons presented, the behavior of petitioner, his performance as a teacher, and the actions of his students. Aside from differences over teaching methodology, it is clear that many deficiencies are documented. For example, petitioner had poor control of the class, in that students were allowed to enter late, move about the room, and leave the room at will, without any consequences. The observers noted that the lessons were "teacher dominated" and that there was little opportunity for students to become actively engaged in the lessons being observed.

Each observation report contains suggestions for improvement of petitioner's performance. However, petitioner has taken the position that he is not legally obligated to follow suggestions given, but only to obey directives. Petitioner fails to understand that the repeated failure to follow suggestions to improve invites a continuing series of unsatisfactory evaluations.

Petitioner also claims that respondents have not complied with �100.2(o)(2) of the Commissioner's regulations in adopting evaluation standards, and claims that he was never provided with the applicable standards. Respondents state unequivocally that the evaluation procedures are in compliance with the regulation, that the applicable standards are found in a document entitled "Teaching for the 21st Century," and that Article 8J of the Collective Bargaining Agreement between respondent Department and the United Federation of Teachers specifies that the "entire agreement with respect to the system of evaluation of pedagogical employees is embodied" in that document. As with any governmental action, there is a presumption of regularity that such action is and was taken in a legal fashion (57 NY Jur 2d, Evidence and Witnesses, ��118-121; Matter of Rickett v. Hackbarth, 98 Misc 2d 790; Matter of Leichter v. Barrett, 208 Misc 577). Petitioner provides no facts that would rebut the presumption, and does not allege that respondents were obligated to provide him with his own copy of that document. In any event, I note that the evaluation at issue in this appeal is based upon the same factors and the same evaluation form as used in the previous nine years, and I find that petitioner was sufficiently informed as to the standards which would be used to evaluate him.

With respect to the hearing by the Committee, I do not find that petitioner was deprived of due process. While there appeared to be some confusion as to whether or not petitioner could be represented by counsel, in fact his union, the United Federation of Teachers, appointed a non- attorney to represent him. This is a matter between petitioner and his union, and, after reviewing the hearing transcript, I cannot say that he was not adequately represented.

Prior to the hearing, the union advised Virginia Caputo, the Director of the Office of Appeals and Reviews, that petitioner wished to call six witnesses, three of whom were attorneys for the Department of Education who had no connection with his case. Caputo advised that the attorneys would not be proper witnesses, and petitioner did not seriously pursue that issue at the hearing.

Petitioner also wanted to call Irving Schachter, a retired teacher, who was not present at the hearing, Norman Scott, a retired teacher, and Betsy Combier, both of whom were outside the hearing room. Petitioner did not press to have Schachter testify. The chairperson examined Combier briefly, determined that she had no personal knowledge of the case, and ruled that she could therefore not testify. With respect to Scott, the chairperson may have improperly excluded him on the ground that he was not on the witness list, when in fact his name did go to Caputo. However, as respondents point out, Mr. Scott never worked at John Adams High School, and it seems doubtful that he could have had any personal knowledge that would have added any relevant information. Petitioner has not indicated what Scott would have said if he had been permitted to testify, and I must conclude that, while this may have been error, it was not serious or material error.

Petitioner also claims that Principal Zwillenberg and Assistant Principal Aboughaida were permitted to testify by telephone, depriving petitioner of the opportunity to observe their demeaner as they testified. Although I recognize the importance of cross examination, it is clear that �4.3.3 of the By-laws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York permits such a practice: "Nothing herein shall preclude witnesses from appearing at review proceedings by teleconference or other technological means." In sum, I cannot conclude that petitioner was deprived of due process at the hearing.

A petition must contain "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR �275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner's claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Eckert, 40 id. 433, Decision No. 14,520). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (seeAppeal of Darrow, 43 Ed Dept Rep 394, Decision No. 15,029; Appeal of Stephen and Roseanne W., 39 id. 808, Decision No. 14,388).

The petition in this matter claims that the unsatisfactory rating was arbitrary, capricious, irrational, and issued in bad faith. However, the only specific allegation in the petition is that the chairperson was biased in favor of Principal Zwillenberg, as indicated by an off-the-record remark allegedly made after the conclusion of the hearing. As a result, petitioner has not submitted any evidence of actual bias sufficient to warrant reversal of the unsatisfactory rating based upon bias.

It appears that the real basis for petitioner's challenge to his unsatisfactory rating is stated in his memorandum of law, which improperly offers new allegations. A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Schultz, 45 Ed Dept Rep ____, Decision No. 15,242; Appeal of N.L., 44 id. 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000).

On page 12 of his memorandum, petitioner alleges that he and Principal Zwillenberg had a history of prior disputes that originated from a time when Mrs. Zwillenberg was an assistant principal. Petitioner states that he believes Zwillenberg decided that she must "get rid of" petitioner and decided to do that by the use of unfavorable observation reports, despite her knowledge that petitioner was "in a protected category, that of age." On page three, petitioner states that he came to realize that Mrs. Zwillenberg and Mr. Aboughaida "were out to get him." Petitioner followed these remarks with approximately eight pages of argument relating to age discrimination against teachers in respondents' district and elsewhere, including lengthy quotes from a federal court decision and a Public Employees Relations Board decision. If, indeed, this is the true basis of petitioner' s complaint, it should have been included in the petition, under oath, allowing respondents to answer the claim, rather than alleged in unsworn form in a memorandum of law which respondents had no opportunity to answer.

In conclusion, petitioner has failed to meet his burden of proof that the unsatisfactory rating assigned to him was the result of malice, prejudice, bad faith, or gross error, and I will not substitute my judgment for that of the Chancellor.

In view of this disposition, I need not consider the parties' other claims, which I find without merit.

THE APPEAL IS DISMISSED.

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