Will the Court permit a probationary termination where the deficiencies in the performance review process were not merely technical but undermined the integrity and fairness of the process?

No. Petitioner was hired as a probationary special education teacher. During the first two years of her three ­year probationary period, she had an exemplary record, receiving satisfactory ratings and several letters of commendation. In her third year, on November 20, 2012, petitioner participated in an annual review meeting concerning a special education student in her fourth ­grade class. At the meeting, petitioner opposed the position taken by the school’s special education coordinator and sided with the student’s mother, who had asked that her son be removed from the “Alternate Assessment” program favored by Principal Jennifer Jones ­Rogers .

The very next day, November 21, 2012, the principal conducted the first formal observation of petitioner for the 2012­-2013 school year. On November 26, 2012, after a post-­observation conference, the principal issued an observation report that found petitioner’s math lesson unsatisfactory because: (1) “[she] did not model for children what [she] expected them to do”; (2) “[her] lesson did not address the problem [she] presented for students to solve”; (3) “[she] did not incorporate rigor in [her] lesson effectively”; and (4) “[she] did not include accountable talk structures in [her] lesson.” The report advised petitioner that a “log of support” would be put in place for her “to grow [her] practice and move toward attaining satisfactory performance.” Petitioner submitted a written rebuttal in which she stated that she had conducted the lesson in the exact manner that the principal had outlined in their pre-­observation conference and that the post-­observation conference focused more on the principal’s dissatisfaction with the position petitioner had taken at the Annual Review than on the math lesson in question.

On February 21, 2013, Assistant Principal (AP) Scott Wolfson conducted a formal observation of another of petitioner’s math lessons . The post­-observation conference was not held until April 16, 2013, at which time petitioner was given an observation report that rated the lesson unsatisfactory because: (1) “[w]hile the children within your group were able to solve the problems that [she] presented to them, it was evident that their solutions indicated algorithmic solution strategies rather than a deeper conceptual understanding of the problems”; (2) “[s he] failed to provide opportunities for [her] students to discuss their mathematical thinking with each other”; and (3) the questions that she posed “[did] not serve to develop children’s conceptual understanding of mathematics, which should be our goal.” The report advised petitioner that “[a]s a result of this lesson, we will continue to implement a log of assistance in order to support you in our mutual goal of attaining a satisfactory rating.”

Petitioner submitted a rebuttal stating that “[t]he fact that m y [special education] students were able to solve the word problem s with algorithmic solution was a huge accomplishment for my students who entered the fourth grade far below grade level” and that “Mr. Wolfson wanted to concentrate on the fact [that] the students struggled with conceptualizing their understanding of mathematics , which was not the goal for my lesson plan for that day.” Petitioner added that “Mr. Wolfson and I also planned my lesson together two days before and [he] never mentioned that he wanted to observe how the students conceptualize math.”

Meanwhile, on April 10, 2013, petitioner received a “Summons to Disciplinary Conference” from Principal Jones ­Rogers . On April 18, 2013, after a conference was held, the principal and the AP issued a letter advising petitioner that: (1) “[s he] failed to suggest appropriate modifications to [her] students ‘IEP’s to support their academic needs “; (2) “[i]n the case of [E.G.], [she] failed to provide [E’s ] parents with a promotion in doubt letter”; and (3) “[she was ] negligent in [her] attention to the records and reports required of [her] in [her] capacity as special education teacher.”

On April 22, 2013, petitioner received an overall U­ Rating for the 2012-­2013 school year, even though her performance was rated satisfactory in 14 of the 22 categories considered. The rating form contained a signature by the principal, dated January 19, 2013, recommending “[petitioner’s ] dis continuance of probationary service.” It also contained a signature by the district superintendent, dated January 22, 2013, adopting the recommendation. On April 24, 2013, petitioner received a revised U­ Rating that changed the date of the principal’s and district superintendent’s signatures to April 22, 2013.

The Department of Education discontinued petitioner’s probationary employment as of May 29, 2013, a month before the school year ended. In June 2013, petitioner sought to review her personnel file and discovered that all of her satisfactory written formal and informal observations from the 2010-­11 and 2011-­12 school years were missing. On October 8, 2013, Principal Jones ­ Rogers resigned.

The Appellate Division, First Department found petitioner’s termination and U-rating highly suspicious. The assertion that, after the first observation, the petitioner and the principal discussed the petitioner’s IEP opinion was not refuted at the review hearing. Additionally, petitioner was given no time to “improve her performance” after a long delay in receiving feedback about her performance.

The Appellate Division also noted, in a footnote that “Two months before her resignation, parents, teachers, students and a state senator had held a rally to protest Principal Jones-Rogers’ policies, which allegedly included retaliating against teachers who disagreed with her and cramming students into special education classes without parental consent”

The petition was granted and the matter sent back to the DOE for further proceedings.

2016 NY Slip Op 03454. IN RE LESLIE TAYLOR, Petitioner-Appellant, v. CITY OF NEW YORK, ET AL., Respondents-Respondents. 718, 100383/14. Appellate Division of the Supreme Court of New York, First Department. Decided May 3, 2016.

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