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Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.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 a teacher who maintains that her probationary period begins upon her appointment and not the date she receives her professional license prevail?

Yes. Carolina Castro began her appointment to teach science at DeWitt Clinton High School on September 3, 2003. From 2003 until 2009 she received satisfactory reviews and obtained her professional certification on September 1, 2009.

The DOE maintained that her probation began in 2009 and she received tenure effective September 1, 2013. Castro maintained that her seniority rights would be affected if the later date was used for her tenure date and she filed an Article 78 in Supreme Court.

The DOE moved to dismiss as the issue was moot since she had obtained tenure.

Justice Eileen A. Rakower granted the petition finding that the DOE action had no rational basis. Rakower did not deal with the mootness issue even though it does not appear that tenure is in any way affected by seniority.

Castro v. DOE (Decided 9/11/13)

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 an allegation that the PIP+ program always leads to teacher termination sufficient for a judge to hear an appeal on the merits of a 3020-a hearing?

No. The PIP+ program, a creature of the UFT last collective bargaining agreement, provides allegedly incompetent teachers with a way to deal with these allegations. While designed to help teachers the program, as charged by Christopher Lobo, a twenty year tenured Earth Science teacher from Forest Hills High School, was a sham resulting in an almost certain termination recommendation.

PIP+, purportedly patterned after the union’s peer intervention program, provides for non-DOE evaluators to give assistance to allegedly incompetent teachers. A major difference between the union peer intervention program and PIP+ is that the PIP+ lacks confidentiality. All aspects of the allegedly incompetent teacher’s participation or lack thereof is admissible in a subsequent 3020-a hearing.

Lobo went through the PIP+ program but claimed it was rigged against him and asserted that no one had successfully completed the program. He also claimed that the DOE offered him no help and the observations that supported his U-ratings were flawed because they were completed by supervisors who were not familiar with his subject area.

Arbitrator Lawrence Henderson, in a 103 page decision, found that the observations were proper and he was provided support during the PIP+ period when “in addition [to] having access to staff development days, petitioner was provided with assistance before and after each of Principal Gootnick’s and A.P. Hoffman’s observations, and peer review by RMC Research Corporation, “a private vendor selected by the Department and the UFT” from April 2, 2009 to June 2, 2009. “

Upon appeal to State Supreme Court Justice Joan B. Lobis granted the City’s motion to dismiss finding that Lobo’s claims were insufficient to reverse Henderson’s termination finding.

Lobis wrote, “In light of Hearing Officer Henderson’s findings that petitioner was underperforming as an educator for two straight years, even after being offered resources to improve, petitioner cannot argue that the penalty of termination was unwarranted.”

CHRISTOPHER LOBO, Petitioner, -against- CITY OF NEW YORK; and NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, Index No. 116548/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31902U; 2011 N.Y. Misc. LEXIS 3426, July 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