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

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Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.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)

Will the failure to appear at a U rating appeals proceeding, without explanation, of an immediate supervisor, defeat the DOE’s motion to dismiss a petition to reverse a U rating?

Yes. Paul Bridgwood, a 34 year veteran mathematics teacher with the GED PLUS program at the Jamaica Learning Center site in Queens, New York, brought a petition to reverse a U-rating for the 2010-2011 school year.

During this school year he was assigned to teaching for which he had no certification. He was observed by Assistant Principal Dannette Miller and was given 4 observations, each rated unsatisfactory. Bridgwood was also provided with a professional development plan which included inter-classroom visitation, regular meetings with the Assistant Principal, and a coach.

At the end of the school year Bridgwood was rated unsatisfactory and he appealed. At the hearing the Assistant Principal did not appear. Principal Robert Zweig appeared and testified about Bridgwood’s performance but could not testify to any personal knowledge he had about the observations.

Justice Donna M. Mills found that while the DOE’s by-laws provide for the summoning of witnesses to the hearing and for the hearing to proceed without such witness, if necessary, no explanation was given as to why  Miller did not appear. Mills wrote that it was too early to determine if Miller’s testimony was required and ordered the DOE to answer Bridgwood’s petition.

BRIDGWOOD

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

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

Can the DOE withhold legal representation in a civil suit brought against a teacher while a disciplinary proceeding is pending?

Yes. While fortunately not a frequent occurrence, our students and others do sue teachers and other school staff members for injuries allegedly caused by school staff during the course of their employment. General Municipal Law Section 50-k and Education Law 3028 provide that city employees have the right to have the Corporation Counsel represent them and the city pick up any resulting judgment if the employee was acting within the “scope of his employment.”

The critical issue is what was in this “scope” as an employee, for example committing a criminal assault on student would not be covered under this law.

Kevin Martin is a tenured teacher and was assigned to Aspire Preparatory School, MS 322X. While teaching Martin tried to stop a student from disrupting the class. After each request by Martin to the student to stop disrupting the class the student verbally responded with profanity. Martin told the student to go the dean.

According to Martin’s petition, “As a disciplinary measure and the course and scope of Martin’s employment, Martin then removed the aforementioned student chair from beneath the feat of student S[…], whereupon Martin lost control of the chair which fell to the floor at student S[…]’s feet.”

The student and his mother started a civil suit against Martin and Martin requested legal representation which was denied due, in part to an OSI report which found Martin had thrown the chair.

Justice Alice Schlesinger of New York Supreme Court had no problem finding that Martin’s action was within the scope of his employment as disciplinary actions against students are clearly envisioned in the statute. The Court nonetheless after determining that the timeline was suspect (the incident occurred in 2008, the civil suit filed in 2009 and the OSI investigation and charges against Martin were done in 2010) found that there was nothing arbitrary or capricious in the denial of legal representation during the course of the disciplinary proceedings. The Court advised that Martin could commence his own civil action for attorney fees and resulting judgment in the future, if the facts warrant.

In the Matter of KEVIN MARTIN, Petitioner, -against- BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, JOEL J. KLEIN, as Chancellor of the City School District of the City of New York, and the CITY OF NEW York, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 30983U; 2011 N.Y. Misc. LEXIS 1795, April 12, 2011

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