Will a U-rating be sustained where the failure to follow the UFT contract for observation practices was never raised at the U-rating appeal?

Yes. Petitioner, a middle school tenured teacher in the Bronx, received a U-rating after an interim principal was appointed in his school. While he was able to transfer to another school he sought to reverse the U-rating and appealed the matter. At the U-rating appeal neither petitioner nor his UFT representative raised the issue that he was observed only once during the rating period.

On appeal to the Supreme Court Justice Doris Ling-Cohan annulled the U-rating and ordered that it be replace with an “S” rating. The City appealed and the Appellate Division, First Department reversed.

The Appellate Division wrote, “Petitioner failed to preserve the issue of whether the U-rating should have been annulled based on an alleged procedural deficiency or deviation from the collective bargaining agreement negotiated by his union regarding observation practices, since he never raised the issue at the administrative level.”

IN RE JEROME RAZOR, Petitioner-Respondent, v. CITY OF NEW YORK, ET AL., Respondents-Appellants. 3013, 101079/13.2017 NY Slip Op 00932 Appellate Division of the Supreme Court of New York, First Department. Decided February 7, 2017.

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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.

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.

Will a “U-rating” be reversed when the sole basis of the rating was the failure of a special education teacher to complete IEP’s for 5 students?

No. The Appellate Division, First Department found that the DOE’s affirmance of a U-rating was warranted since the special education teacher  failed to show that the U­rating was arbitrary and capricious, or made in bad faith. The evidence that petitioner failed to timely complete individualized education plans (IEPs) for at least five of her students, despite repeated warnings and offers of assistance from the IEP coordinator, provided a rational basis for the rating.

The Court went further to caution that it would not second guess the determination of the DOE.

MATTER OF VAN RABENSWAAY v. City of New York, 2016 NY Slip Op 5051 – NY_ Appellate Div., 1st Dept (June 23, 2016)

Will the failure to provide mandated pre-observation conferences require that a U-rating be reversed?

No. While there have been some lower courts which have held that the DOE’s own Manual of Pedagogical Observations acts as a rule or regulation which must be followed, the Appellate Division, First Department has held that observations, which normally require pre-observation conferences, are not required for a U-rating to be sustained.

In re Kameisa Richards

Does the DOE’s failure to follow its own handbook for rating teachers render a U-rating invalid?

Yes. Carmen Applewhite, a special education teacher sought to annul her 2007 to 2008 U rating which she claimed was based on six unsigned disciplinary letters to her file. The DOE, without following its own procedures, affirmed her U-rating and Applewhite appealed. Justice Joan B. Lobis of the New York County Supreme Court dismissed the petition finding that a violation of the Ratings Handbook was not the equivalent of a violation of an agency’s own rules. Applewhite appealed and the First Department reversed finding that the DOE’s determination to sustain Applewhite’s U-rating was not rationally based on administrative findings.

Matter of Applewhite v. Board of Education, 2014 NY Slip Op 01501, 1st Dept., March 6, 2014.

Must a teacher after receiving a U-rating exhaust the grievance procedure before commencing a proceeding in Court?

No. Corine Liverpool, a tenured middle school science teacher at J.H.S. 78 in Brooklyn was U-rated for the 2011-2012 academic year. Liverpool challenged the U-rating and was granted a hearing from which she appealed. Her appeal was denied.

Liverpool commenced an Article 78 proceeding in Supreme Court to challenge her U-rating and the DOE moved to dismiss because she did not utilize the grievance procedure as outlined in the Teachers’ Contract. Justice Doris Ling-Cohan of the New York County Supreme Court found that Article 8(J) of the Contract specifically permits a teacher to appeal a U-rating without filing a grievance and denied the DOE’s motion to dismiss. The DOE was ordered to answer the petition after which a decision on the merits of the petition will be made.

Corine Liverpool v. Board of Education, (Sup.Ct., Ling-Cohan, J.) March 6, 2014

Can a U-rating be reversed when a teacher is disciplined for protected activity?

Yes. The Public Employees’ Fair Employment Act codifies public employee labor relations in New York State. The statutory framework provides for a Board to oversee the public employee labor relations and has certain powers to protect public employees engaged in Union activity termed protected activity.

Rodriguez taught at P.S. 173 and for 32 years “had an unblemished record.” He was also the Chapter Leader at the school and had never filed a grievance on his behalf. In April 2010 he submitted a preference sheet and was not assigned his preference. He filed a grievance.

Rodriguez alleged that, as a result of his grievance, he was subjected to an excessive number of classroom visits and observations including 58 unannounced “pop-in” visits. After the filing of a second grievance regarding lesson plans Rodriguez was subjected to still further scrutiny.

Additional animus was evident from the filing of a disciplinary letter to Rodriguez file and rating him with a U-rating.

Rodriguez appealed to PERB where he demonstrated the anti-union activity bias. AlJ Elena Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.

Rodriguez v. DOE

Will the failure to note a previously observed deficiency in a subsequent observation annul a U-rating?

Yes. Aisha Brown, a long time paraprofessional turned teacher was still on probation when she received a U-rating for the 2009-2010 school year. While her petition for reinstatement was denied due to its being untimely the part of her petition seeking to annul her U-rating was timely.

The Appellate Division, First Department found that following Brown’s first year as a probationary special education teacher in 2008-09, she  received a satisfactory rating and also received a satisfactory review for her teaching during the summer 2009 session. Brown was not assigned a coach until the third month of the 2009-2010 school year, and the principal informally observed her teaching for the first time at the end of January 2010, the day after she had asked for help and complained that her literacy coach was ineffective. Pursuant to the principal’s January 28, 2010 observation of her literacy class, Brown received a written evaluation generally criticizing her for failing to have a daily lesson plan. The principal formally observed petitioner’s literacy lesson on March 2, 2010, and again rated it unsatisfactory, but, she was not provided with the post-observation written evaluation until June 7, 2010. The report listed a litany of criticisms, none of which centered on the deficiencies noted in the informal observation. Brown was again formally observed by the assistant principal on June 16, 2010, and the written evaluation, provided to her on June 24th, noted many of the same deficiencies indicated in the June 7th report.
The principal issued the 2009-10 annual professional performance review on June 22, 2010, rating petitioner unsatisfactory for the year, and recommending discontinuance of her probationary employment.

Brown’s initial application for reinstatement and reversal of her U-rating was denied by New York County Supreme Court Justice Alexander W. Hunter, Jr. The Appellate Division reversed her U-rating finding that Brown initial deficiencies were not noted in subsequent observations and her final observation was not received until more that 3 months had elapsed making “the deficiencies in the rating of petitioner were not merely technical, but undermined the integrity and fairness of the entire review process.”

In re Aisha Brown (11/7/2013)

Will a U-rating stand when one of three negative incidents is based on a finding determined to be arbitrary and capricous?

No. David Deutsch, a highly respected physics teacher at Manhattan Center for Science and Mathematics received a U-rating from his supervisor based on 3 separate incidents. Two of the incidents involved cursing and aggressive behavior and failure to follow a directive when asked to go to a department meeting. The incident involved an allegation that Deutsch failed to follow school protocol for notice in requesting a personal day off.

While the Chancellor’s representative, Shael Polakow-Suransky, affirmed the principal’s U-rating he wrote that Deutsch has failed to show professional growth.

Deutsch appealed. Justice Michael D. Stillman found that the first two incidents were valid but that the third incident must be dismissed because it was arbitrary and capricious that Deutsch was to follow a protocol in requesting a personal day when, in fact, such policy was not shown to exist. Additionally when Polakow-Suansky affirmed the U-rating there was nothing in the record to demonstrate any opportunity for Deutsch to show professional growth nor were any opportunities offered. The U-rating was annulled.

Deutsch v. NYCDOE (11/7/13)