Will the failure of an adminstrator to observe procedures designed to ensure the fairness and integrity of the rating system deprive a tenured teacher of the opportunity to improve his performance before receiving two years of ineffective ratings cause the reversal of his termination?

Yes. Petitioner, a teacher at a Bronx transfer school with 11 years of satisfactory ratings, was rated ineffective for two consecutive years which was confirmed by a validator was terminated after a 3020-a hearing. The record revealed that the single administrator who rated him failed, on numerous occasions to provide timely observation reports thus depriving him of an opportunity to improve his performance.

Upon appeal to New York County Supreme Court, Justice Barbara Jaffe found that “Petitioner was not provided with copies of most of his reports in time for him to work on the alleged insufficiencies and improve his skills before the next observation or the end of the year. Instead, petitioner received, without explanation, four of the 2015 reports on June 9, 2015, within weeks of the end of the school year, and weeks, and in some cases, months, after the observations. Despite DOE rules requiring that observations be completed by the end of May, two of petitioner’s 2015 observations were conducted in June.”

Justice Jaffee also found that the alleged improvement plan was not communicated to petitioner until well after it was to be acted upon. This included demonstration lessons by the rating officer and weekly meetings.

McSorley also observed petitioner several times in 2015 but did not give him a copy of the reports until June 2015, sometimes months after the observation, without explaining the delay, and he did not ensure that petitioner received a copy of the 2014 formal observation report.

Justice Jaffee further noted that the refusal by the arbitrator to take the rating officer’s attitude and conduct as relevant to the proceeding was arbitrary and capricious. The judge also noted that petitioner’s MOSL scores were satisfactory, a point the arbitrator found irrelevant.

The Court reversed the order of termination and restored the petitioner to his previous position.

IN THE MATTER OF THE APPLICATION OF FELIX BERIGUETE, Petitioner,
FOR AN ORDER VACATING A DECISION OF A HEARING OFFICER PURSUANT TO SECTION 3020-A(5) OF THE EDUCATION LAW and ARTICLE 75 OF THE CPLR,
v. THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. 654272/15.
Supreme Court, New York County. 2016 NY Slip Op 26229, Decided July 14, 2016.

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