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Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.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


Must the DOE return a vindicated teacher to her original school after all disciplinary charges were dismissed?

Yes. Judith Merenstein, a tenured elementary school teacher for almost 20 years was served with charges that included a U-rated observation by the LIS. The arbitrator who heard the case found the LIS and others not credible and part of a campaign to discredit and terminate Merenstein. All charges were dismissed.

Subscribing to the theory that no good deed goes unpunished the DOE reinstated her to a different school. She promptly filed a proceeding in Court claiming that the State Education Law provided that she was to return to her original school and limited the power of the DOE to reassign her. The DOE moved to dismiss Merenstein’s petition and Justice Lucy Billings denied the motion and ordered the DOE to respond to her petition.

Billings found that the DOE had the right to reassign Merenstein to a different workplace (the rubber room) while charges were pending but State Law was clear that she had to be reinstated to the same school if charges were dismissed.

Observation: The decision does not deal with the impact of the CBA and exhaustion of the grievance procedure.

In the Matter of the Application of JUDITH MERENSTEIN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents, Index No. 111208/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2012 N.Y. Misc. LEXIS 5468; 2012 NY Slip Op 32844U October 18, 2012, Decided. November 13, 2012, Filed.

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.”


Will a termination after a 3020-a hearing, based on a finding of probable cause by a principal, be sustained?

Yes. Malcolm Menchin, a tenured teacher at Performance Conservatory High School in the Bronx, was terminated, after a 3020-a hearing by arbitrator Patricia A. Cullen. On appeal Menchin did not argue the merits of Cullen’s decision but instead relied upon the argument that the probable cause determination was flawed since it was made by his principal and not the Chancellor. Menchin argued that the delegation of determining probable cause was improperly delegated to the principal thus rendering all proceedings made in furtherance thereof invalid.

Justice Linda S. Jamieson of Rockland Supreme Court took little time dismissing this argument. Jamieson found that Chancellor Joel I. Klein had authority to issue the August 16, 2007 Delegation of power to the principals of high schools in District 75 and 79. (Menchin’s school is in District 79). The Delegation states, in relevant part, that the Chancellor delegates to “each high school, District 75 and 79 principal the power to” “Initiate and resolve disciplinary charges against teaching and supervisory staff members in your school. . . .”

Jamieson further found that Section 2590-h(38) does not have a limiting provision and denied Menchin’s appeal.

Malcolm Menchin, Petitioner, for a Judgment under Article 75 of the Civil Practice Law and Rules against New York City Department of Education, Performance Conservatory High School, Respondents. 2250/2011, SUPREME COURT OF NEW YORK, ROCKLAND COUNTY, 2011 NY Slip Op 51344U; 2011 N.Y. Misc. LEXIS 3520, July 13, 2011, Decided

Can a teacher with an intern certificate earn Jarema credit while employed in a substitute position?

No. Under the Jarema law, so-called due to the law’s co-sponsor, a three year period of probationary service can be shortened to one year when “credit” is given for prior probationary service given as a regular substitute on an annual salary. The law was passed to prevent inequities in the length of probation for teachers who had been teaching in unappointed positions in the same license they sought tenure.

State certification requirements have radically changed since the passage of Jarema.

Jesus Berios first started working for the Yonkers School District under an intern certificate; a credential that entitled him to work under the supervision of a fully certified teacher. An intern certificate is “the certificate issued a student in a registered or approved graduate program of teacher education which includes an internship experience(s) and who has completed at least one-half of the semester hour requirement for the program” (8 NYCRR 80-1.1(b) [24])

After one full year teaching under the intern certificate he was appointed with an initial certificate to a regular teaching position in the same subject area for two full school years when he was dismissed, without a hearing.

Berios brought a proceeding in Westchester Supreme Court arguing that he obtained tenure by estoppel, a court determined grant of tenure after finding that he had completed three years of satisfactory service.

Both the Supreme Court and the Appellate Division disagreed. Berios’ service under the intern certificate did not qualify as regular substitute service required under Jarema since he did not have the qualifications to teach without supervision. The Court held, “Allowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher’s certificate.”

In the Matter of Jesus Berrios, appellant, v Board of Education of Yonkers City School District, et al., respondents. (Index No. 23910/09), 2010-02768, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2011 NY Slip Op 5804; 2011 N.Y. App. Div. LEXIS 5663, July 5, 2011, Decided

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