Will a court overturn two U-ratings of a 33 year veteran teacher who claims the ratings were a pretext and part of continuing harassment?

No. Margaret Poplinger was a 33 year veteran special education teacher when the administration of her school changed. Despite 33 years of satisfactory ratings and numerous complementary letters in her personnel file the new principal began to closely observe her. In a series of observations, both formal and informal, Poplinger was rated unsatisfactorily. After two years of what she claimed was consistent harassment and poor treatment due to her allegiance to the prior administration Poplinger retired and sought to have the ratings reversed by the court.

Justice Donna M. Mills found that although she sympathized with Poplinger great deference was required to be accorded the DOE. Mills wrote, “Petitioner has failed to show that the U-Ratings were arbitrary and capricious or made in bad faith. The detailed observation reports by the principal and assistant principals, describing petitioner’s poor performance in areas of lesson planning and classroom instruction, provided a rational basis for the ratings. Petitioner’s contention that the principal harassed her and was biased against her is speculative and insufficient to establish bad faith (see Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 812 N.Y.S.2d 522 [2006] ).

N.B. No mention in the moving papers or the decision of any action by the Rating Appeals Board.

In the Matter of the Application of MARGARET POPLINGER, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, – against – NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent. INDEX NO. 102542/12, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 111; 2013 NY Slip Op 30049(U), January 10, 2013

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Is there a remedy for a teacher who obtained a reversal of a U rating to have all back pay restored and references erased from his personnel file?

Yes. Glenn Storman started this proceeding in 2006. Storman, a teacher at the DOE for approximately 30 years, challenged an unsatisfactory rating he received resulting from allegations of sexual misconduct and corporal punishment made in retaliation for his verbally reprimanding a student in 2004. Storman’s teaching career has been seriously impacted by these false allegations. In an Order dated October 26, 2007, Justice Marcy Friedman granted the petition and remanded the case to DOE for further findings of fact. After a second hearing, in a letter dated June 10, 2008, DOE upheld Storman’s unsatisfactory rating. Storman then commenced a second Article 78 proceeding challenging the result of the second hearing. In an Order dated May 11, 2009, the Court granted Storman’s petition because “it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment” and “the penalty imposed was excessive and shocking to the conscience.” This Court ordered that the unsatisfactory rating be annulled and that “this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court’s decision.”

The purpose of remitting the case to DOE was for the DOE and the UFT, to take the appropriate steps to remedy the consequences of the underlying false allegations so that Storman would be properly compensated and his employment status restored. Upon remittal, the unsatisfactory rating was annulled, but no further steps were taken to compensate Storman or to remedy his employment situation. As a result, Storman moved to hold DOE in contempt. In an Order dated November 19, 2010, this Court held DOE in contempt for its willful and contumacious failure to comply with the Judgment.

The City appealed and in an Order dated May 31, 2012, the Appellate Division vacated the Contempt Order on the ground that the Judgment did not contain a “clear and unequivocal mandate.” See Storman v NYC Dep’t of Educ., 95 AD3d 776, 777, 945 N.Y.S.2d 281 (1st Dept 2012). Nevertheless, the Appellate Division granted Storman leave to clarify the Judgment to allow the Supreme Court the opportunity to clarify its order.

Justice Shirley Werner Kornreich, in a rare display of judicial anger, ruled that “By April 5, 2013, DOE shall do the following, pursuant to Article 21H of the CBA: (1) remove all references to the underlying false accusations from Storman’s personnel file; and (2) restore back pay, with interest, that Storman did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits. If a dispute arises between the parties before such date, the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to Storman, Storman is granted leave to move to have such calculation referred to a Special Referee to hear and report. Finally, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with Storman about back pay, Storman has leave to move for contempt, as DOE can no longer maintain that its mandate is not clear and unequivocal.”

In the Matter of Glenn Storman, Petitioner, against New York City Department of Education, Respondent. 113652/2008, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2013 N.Y. Misc. LEXIS 12; 2013 NY Slip Op 50007U, January 3, 2013, Decided

Will the Court uphold a U-rating even though no formal observations were in the file and no opportunity for a pre-observation conference was ever offered?

Yes. Mitchell Cohn appealed from the denial of his U-rating appeal on the basis that the 3 U rated lessons were insufficient to support the unsatisfactory rating. Cohn argued that the observations were not formal and were in effect unannounced walk-throughs for which he was never offered a chance for a pre-observation conference, something he alleged was guaranteed to him under both the UFT contract and the Ratings Manual for Pedagogues.

The Supreme Court disagreed. Justice Alice Schlesinger ruled that the technical violation did not support the Court’s involvement in reversing a matter better left to the discretion of the Department of Education. The Appellate Division affirmed the decision and wrote, “While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or any substantial right.”

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y. 2013 NY Slip Op 00418 Decided on January 29, 2013 Appellate Division, First Department.

MITCHELL COHN, Petitioner, Index No. 110409/10 -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; and District of the City of New York, JOEL I, KLEIN as Chancellor of the City School, Respondents,

Does a six-month suspension, without pay, coupled with DOE paid for classroom management classes warrant a 3020-a award be remanded?

No. Jane Lewinter, a tenured science teacher taught for three years at East Bronx Academy. During her first year she was rated satisfactory. During her second year she suffered from intestinal problems as was absent from work for 2 separate 5 week periods and underwent surgery.

Starting with her return from her first Lewinter’s principal began frequent classroom observations accompanied by a large number of letters to her file. She was given an unsatisfactory rating.

The third year she received numerous observations and at least 73 letters to her file. She was charged with 12 charges which dealt with various classroom management and teaching effectiveness allegations. The matter was brought before Arbitrator Stephen m Bluth who found that half of the charges were either not actionable against Lewinter or lacked sufficient evidence to support.

In fashioning an award Bluth rejected DOE’s dismissal request and suspended Lewinter for six months without pay. Additionally he ordered that the DOE pay for classroom management classes on behalf of Lewinter and required that she attend.

Lewinter appealed to the New York State Supreme Court, Justice Judith J. Gische. Justice Gische found Bluth’s decision and award to be “Solomon-like.” She found that Lewinter’s satisfactorily rated first year at East Bronx Academy irrelevant and that Bluth’s award did not shock the conscience. The award was upheld.

Jane LEWINTER, Petitioner for an Order pursuant to Article 75 of the Civil Practice Laws and Rules, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent., 36 Misc.3d 1213(A), 2012 WL 2877619 (N.Y.Sup.), 2012 N.Y. Slip Op. 51264(U), No. 100029/11. Supreme Court, New York County, New York. July 11, 2012.

Is a probationary teacher who received a U-rating required to exhaust all administrative remedies before appealing to Court?

Yes. Leonette Belfield worked for over 10 years as a paraprofessional when she entered the DOE’s program, “Pathways to Teaching,” to become a teacher in 2006. She received 3 consecutive S-ratings and was given a U-rating for the 2009 to 2010 school year and terminated. (It is not clear why Belfield was still on probation during her fourth year teaching).

Deciding not to wait until her U-rating appeal was decided by the Chancellor, Belfield commenced a proceeding seeking reversal of her U-rating and reinstatement. It was undisputed that Belfield did not exhaust her administrative remedies.

Without deciding on the merits Justice Barbara Jaffee dismissed her application relying on Belfield’s failure to wait for the Chancellor’s decision in her U-rating appeal.

In the Matter of the Application of: LEONETTE BELFIELD, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 114094/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31862U; 2011 N.Y. Misc. LEXIS 3389, July 1, 2011, Decided

Observation: The decision and supporting documents do not reveal answers to some important questions about the case. Although the Court wrote, in its decision, that Belfield had requested reinstatement, this was not requested in her petition. It is not clear when Belfield was terminated but generally a proceeding to challenge a probationary termination has a four month statute of limitations measured from the effective date of termination. To challenge the U-rating and the subsequent placement on the DOE’s ineligible list requires filing the proceeding in Court within four months of the Chancellor’s decision in the U-rating appeal which did not occur at the time of the filing of Belfield’s petition.


Will a U-rating be upheld if the reviewing administrator violates a non-substantial right of a teacher when rating the teacher?

Yes. Mitchel Cohn is a tenured  teacher at Williamsburg Middle School Academy (MS 50K). In June 2006 he received a  U-rating. He received another U-rating in June 2007. The second U-rating was based, according to his rating sheet, on 5 informal observations taken place in March and May of 2007. Cohn appealed the rating and despite his argument that he was never given pre or post observation conferences required by the UFT contract his appeal was denied.

Cohn also argued that the failure to provide formal observations, since he was a previously designated U-rated teacher, required formal observations and these rights were outlined in the DOE’s rating manual and Special Circular 45.

On appeal to State Supreme Court Justice Alice Schlesinger held that only “substantial rights” violations would cause the Court to overrule the Chancellor’s final determination of a U-rating. While Justice Schlesinger noted that an Appellate Court had held that “the standard of review in such cases required reversal of an agency’s decision when the relevant agency does not comply with either a mandatory provision or one thas was :intended to be strictly enforced.”  Blaize v Klein, 68 AD3d 759, 761, 889 N.Y.S.2d 665 (2nd Dept., 2009).

So what constitutes a substantial right? Schlesinger held that “The review process that petitioner claims was violated is not found in a statute or regulation, but rather in the CBA and various handbooks. The document where the review process first appears is entitled “Guidelines” and reads as such. Further, that the pre-observation aspect of the Formal Observation model is described slightly differently in the various documents further reinforces the fact that the APPR is intended to act as a set of somewhat flexible guidelines rather than as a directive that must be strictly enforced and that guarantees a substantial right.”

To show a pre-observation conference was a mandatory provision Cohn would have had to show how those conferences deprived him of substantial rights, which the Court found he had not.

In the Matter of the Application of Mitchell Cohn, Petitioner, against Board of Education of the City School District of the City of New York; and JOEL I. KLEIN as Chancellor of the City School District of the City of New York, Respondents. 110409/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 51070U; 2011 N.Y. Misc. LEXIS 2829, June 7, 2011, Decided

Will a “u”-rating be upheld when the rated teacher claims that her rating was based on retaliation for her grievance about an OEO finding against her?

Yes. In 1991 Tracey Elcock began working for the DOE as a para and was appointed as a special education teacher in 2001. From her appointment until an allegation about her uttering a racial slur and reported by a guidance counselor she received satisfactory ratings.

After an investigation the OEO found that Elcock had violated the Chancellor’s Regulations and recommended that a letter be placed in her personnel file.

Elcock grieved the letter and at the end of the school year received a “u”-rating. She claimed that her rating was in retaliation for her grievance.

The DOE argued that the rating was based on attendance and on a incident in which she allegedly belittled her special education students.

Justice Joan Lobis found that Elcock had not met her burden of demonstrating that the principal’s action was either arbitrary or capricious despite the fact that only two students complained about her alleged statements and that their statements were inconsistent. Justice Lobis observed that it was not the Court’s function to determine credibility.

In the Matter of an Article 78 Proceeding TRACEY ELCOCK, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YON, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. Index No., SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30537U; 2011 N.Y. Misc. LEXIS 950, February 18, 2011