Can the DOE consider a problem code in future hiring decisions which was placed in a teacher’s file from a prior probationary termination when the U-rating from that termination was reversed on appeal?

Yes. Petitioner, a probationary assistant principal,  received a U-rating after findings of misconduct were made against him. At the time a problem code was placed on his file. On appeal the misconduct findings were reversed and the Court, in 2011, ordered that U-rating and the problem code be removed from his file “to the extent that it was supported by the unsubstantiated conduct.”

In 2014 the petitioner brought a second proceeding challenging the DOE’s maintaining the problem code and claimed that it made him ineligible for promotion.

The DOE argued that the 2011 decision only removed the problem code in so far as it was based on the unsubstantiated misconduct but otherwise had a right to maintain the code.

The Appellate Division, First Department agreed with the DOE holding that petitioner’s discontinuance of probation, which was upheld in the prior proceeding, could be maintained in his file since it was not based on unsubstantiated conduct and was never challenged by petitioner after it was affirmed by the prior court.

The Court wrote, “Even if his job prospects are more limited, petitioner is not prohibited from seeking a position that does not require a certificate of eligibility, i.e., a non-supervisory position; nor is he prohibited from applying to employers outside respondent’s authority.”

IN RE MILCIADES PEPIN, Petitioner-Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Respondent. 3336, 100727/14. Appellate Division of the Supreme Court of New York, First Department. Decided March 7, 2017.

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