Appeal of LEANNA MERCEDES from action of the Board of Education of the City School District of the City of New York regarding a rating.

Decision No. 16,985

(October 31, 2016)

The Law Offices of Richard M. Greenspan, P.C., attorneys for petitioner, Matthew P. Rocco, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Alexis Downs, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York (“respondent” or “board”) to provide petitioner with a “D” rating on her annual professional performance review (“APPR”).  The appeal must be sustained.

By letter dated February 29, 2012, petitioner was appointed by respondent to a probationary appointment as an assistant principal of the Elementary Intermediate and Junior High Schools at J.H.S. 080 The Mosholu Parkway - X080 in District 10, effective February 28, 2012.  On June 28, 2012, petitioner was provided with a Doubtful – “D” rating for the 2011-2012 school year by the school’s Interim Acting Principal Polanco.  Petitioner initiated a complaint with respondent’s Department of Education’s Office of Equal Opportunity and Diversity Management (“OEO”) that Polanco discriminated against petitioner on the grounds that two of her male counterparts received a Satisfactory - “S” rating.  By decision dated June 14, 2013, the OEO found that its investigation substantiated petitioner’s allegation that Polanco violated the New York City Department of Education’s (“Department”) non-discrimination policy, which is outlined in Chancellor’s regulation A-830.  On July 19, 2013, petitioner was notified that the appeal of her “D” rating for the period ending June 2012 was denied.  This appeal ensued. 

Petitioner contends that the “D” rating issued by respondent violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence.  Petitioner also asserts that her “D” rating was baseless and discriminatory.  She further alleges that the determination to uphold the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations.  Petitioner requests that the “D” rating be annulled and vacated and that respondent be directed to rate petitioner’s performance for the 2011-2012 school year as “Satisfactory.”  She also asks that I reject respondent’s answer as untimely.

Respondent contends that that the petition fails to state a claim upon which relief may be granted and that some or all of petitioner’s claims may be barred, in whole or in part, by the doctrine of res judicata.  Respondent further asserts that proper procedures were followed in issuing petitioner’s 2011-2012 rating, and that petitioner has not provided any evidence to dispute the principal’s reasons for her “D” rating.  Respondent further asserts that it complied with applicable rules, regulations and statutory authority when issuing petitioner’s 2011-2012 rating, that respondent’s ratings guidelines are not legally binding on the Department and that petitioner’s “D” rating was supported by documentation.  Respondent also asserts that it timely requested an extension of time to answer within the 20 day period from the Office of Counsel.

First, I must address a procedural issue.  Petitioner asserts that respondent’s answer is untimely and should not be considered.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).

Petitioner served this appeal on August 19, 2013.  My Office of Counsel granted respondent an extension of its time to answer until September 30, 2013.  By letter dated October 4, 2013, respondent requested an additional extension of time in which to answer until October 15, 2013, claiming that the parties were in the process of discussing the possibility of settlement.  However, this request was not granted by my Office of Counsel and respondent failed to submit an answer until October 10, 2013, 10 days after the extension granted by my Office of Counsel expired. 

To the extent respondent contends that the parties were in the process of discussing the possibility of settlement, I do not find this excuse compelling since respondent did not raise this issue until after the September 30 extension expired and the parties had more than 50 days to settle this case and failed to do so.  Nor do I find that respondent made a timely request for an extension of time to submit its answer since respondent’s request for a second extension came five days after the first extension expired.  Accordingly, I have not accepted respondent’s answer, and petitioner’s factual statements are deemed to be true.

With respect to appeals challenging ratings, in the absence of a showing that the rating lacked a rational basis or malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her 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 147, 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 his decision letter that the rating was sustained "as a consequence of insufficient time to make an accurate assessment of the probationer’s performance." Based on the record before me, I find the Chancellor's designee's determination to lack a rational basis and be in gross error.  The record is devoid of any support for petitioner’s ”D” rating.  In the July 19, 2013 decision dismissing petitioner’s appeal from her rating, the sole reason given for sustaining the rating is that the Interim Acting Principal had insufficient time to accurately assess her performance.  On the contrary, the record reveals that despite the Interim Acting Principal’s short time in that position, he was able to provide a rating of “satisfactory” to two other male assistant principals.  Moreover, assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious (cf. Matter of Guttman v. City of New York, 134 AD3d 547 [rating not arbitrary and capricious where based on observations and evidence of failure to improve]; Matter of Richards v. Board of Educ. of the City of New York, 117 AD3d 605 [rating had rational basis in the record]).

Therefore, based on the record before me, I find that petitioner has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and the appeal must be sustained.

In light of this disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent remove the Doubtful “D” rating for the 2011-2012 school year from petitioner's personnel file.

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