Brown v City of New York

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Brown v City of New York 2012 NY Slip Op 31472(U) June 1, 2012 Sup Ct, New York County Docket Number: 114039/11 Judge: Alexander W. Hunter Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 61512012 [* 1] c * , SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: A N R W, H PLT WE D u m PART 33 Justice ~ , , Index Number : 114039/2011 BROWN, AISHA vs. CITY OF NEW YORK SEQUENCE NUMBER : 001 INDEX NO. MOTION DAW MOTION SEQ. NO. - ARTICLE 78 Thr following papen, numbered 1 to 2 , h i d on thlr mptlon toffor were Notlce of MotlonlOrdor to Show C i u r e -AAtndrvlk Aniwerlng Affldrvlta - ExhlblG - Exhlblk (No(8). !- , 7 IWs). lNo(a). RoplylnuAtlldavlG R- L - ? *3n-3 I, Upon the foregoing papem, It I ordemd that thh motion Is s ..................................................................... 2. CHECK AS APPROPRIATE: .............. MOTION IS: 3. C W P K IF APPROPRIAW: ................................................ I.CHECK ONE! ALEXANDER W. M m nP 6 0 NONPINAL DlSPOSlTlON CASE DISPOSED OMN76D ~ SElTLE ORDER 0DO NOT POST I E D GMMTED IN PART oOTHER 0SUBMIT ORDER .nFIDUCIARY APPOINTMENT 0REFERENCE [* 2] f Index No.: 114039/11 Petitioner, Decision and Judgment For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -againstCity of New York, New York City Department of Education, Dennis Walcott, Chancellor of New York City Department of Education, The application by petitioner for an order pursuant to C.P.L.R. Article 78, compelling respondent New York City Department of Education ( DOE ) to issue a final determination regarding her appeal and declaring respondents determination to terminate her employment as a probationary teacher as arbitrary and capricious, an abuse of discretion, and in bad faith, is denied and the proceeding is dismissed, without costs and disbursements to either party. Petitioner is a former probationary Special Education Teacher at P.S. 723X in the Bronx from September 15, 2008 to July 3 1,201 0. She received satisfactory ratings for the 2008-09 school year and the summer of 2009. On January 28,2010, Principal Christine Walsh performed an informal observation. Principal Walsh noted in a letter dated February 1 1,20 10 that petitioner failed to engage all of the students in the lesson and petitioner could not produce a lesson plan. On March 2,2010, Principal Walsh conducted a formal observation. This lesson was deemed Unsatisfactory. On June 16, 201 0, Assistant Principal Ron Rodkin formally observed petitioner. This lesson was also rated IJnsatisfactory. Petitioner was discontinued at the end of the 2009-10 school year after receiving an Unsatisfactory rating ( U-rating ) for the year. By letter dated July 23, 20 10, Superintendent Bonnie Brown informed petitioner of her discontinuance, effective July 31, 2010. On or about June 25,2010, petitioner requested a hearing through the DOE Office of Appeals and Reviews ( OAR ), The hearing was scheduled before a 3-mcmbcr OAR panel on November 15, 2010. At the hearing, the panel reviewed petitioner s U-rating and discontinuance. On November 15, 2010, the Chancellor s Committee met to review petitioner s U-rating and discontinuance. On January 27,2012, Superintendent Gary ¬lecht reaffirmed petitioner s 2009-1 0 U-rating and discontinuance. [* 3] During the pendency of this action, respondent DOE issued its final determination as to petitioner s appeal. Therefore, petitioner s first cause of action to compel respondents to render a final determination as to her appeal of her discontinuance and U-rating is hereby deemed moot. Petitioner asserts that her U-rating for the 2009-10 school year, denial of completion of probation, and subsequcnt discontinuance should be annulled as arbitrary and capricious, in bad faith, and in violation of lawful procedure. Petitioner argues that Principal Walsh failed to adhere to the procedures rcquired by the DOE in Chief Executive s Memorandum No.80 ( Memorandum 80 ) and the Rating Pedagogical Staff Member handbook by failing to timely observe and rate her performance and by not following the procedures regarding teachers who are in danger of rccciving a U-rating. Petitioner also seeks respondents to turn over the Chancellor Committee s report following her hearing. Respondents assert that the petition is barred by the four month statute of limitations. Respondents further argue that its determination was a proper exercise of discretion and consistent with DOE procedures and regulations. Respondents maintain that petitioner failed to develop professioiially and performed poorly as a Special Education teacher, as evidenced in her pre-observation conferences, observations, and post-observation conferences. Respondents also assert that the City of New York is not a proper party to the instant petition and should be dismissed from the proceeding. In reply, petitioner maintains that she learned for the first time in respondents answering papers that the Chancellor s Committee unanimously recommended that shc be restored to her probationary teaching position, have her U-rating reversed, and that there was no justifiable reason for her discontinuance. Despite the Chancellor s Committee s recommendation for reversal, Superintendent Hecht nonetheless rejected the recommendation and affirmed petitioner s U-rating and termination without explanation. The Superintendent s refusal to adopt the Chancellor s Committee s recornmendation without explanation is another grounds to reverse respondents dcterniination. Petitioner contends that she was mistreated and wrongfully removed from her position. The claims against respondent City of New York are hereby dismissed. Respondent City ofNew York was not petitioner s employer and thcrefore is not a proper party to the instant Dept. 2007); Matter of Leiva v. action. &, Perez v. City of New York, 41 A.D.3d 378 (lEt Department of Educ. of the Citv of N.Y,, 201 1 NY Slip Op 32165(U). Pursuant to C.P.L.R. 217( 1) a proceeding against a body or officer must be commenced within four months after the determination becomes final and binding upon the petitioner. An administrative determination becomes final and binding when the petitioner seeking review is In the M u h . ranco, 95 N.Y.2d 342,346 (2000). In cases aggrieved by it. 2 of termination of a probationary employee, the statute of limitations begins to run from the effective datc of thc termination. Moreover, the time to commence the action is not tolled by the petitioner s pursuit of administrative remedies. See, Matter of Murnaane y . Department of 2 [* 4] Educ. of the Citv of N.Y,, 82 A.D.3d 576 (lEt Dept. 201 1); Kahn v. New York City Dent. of Educ,, 79 A.D.3d 521 (lMt Dept. 2010). Petitioner was notified that she was to be terminated effective July 3 1,201 0. She did not commence the instant proceeding until December 12,201 1, more than twelve months later. Therefore, petitioner s application to challenge the termination of her probationary employment is time-barred and must be dismissed. However, petitioner s application to review respondent s determination to reaffirm her Urating is not time-barred. Pursuant to Article 4,Section 4.3.2C of the Bylaws of the Department of Eiducation, petitioner had a right to an administrative appeal and a hearing before the Chancellor s Committee. Respondent s determination reaffirming the U-rating did not become final until the Superintendent issued a decision on January 27, 201 2. It is well settled that a determination is arbitrary and capricious when it is made without sound basis in reason and is generally taken without regard to the facts. See Matter of Pel1 v. Bd. of Educ, Q f Unios Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222,231 (1974). Even though the court might have decided differently were it in the agency s position, the court may not upset the agency s determination in the absence of a finding, not supported by this record, that the determination had no rational .. . basis. Matter of Mid-fitate . Corm v, New York Citv Conciliation aaij ppaals Bd., 112 A.D.2d 72,76 (lst Dept. 1985). Therefore, this court s role is limited to whether or not respondents final determination was made without a rational basis. [Aln agcncy s rules and regulations promulgated pursuant to statutory authority are biding upon it as well as the individuals affected by the rule or disposition. Matter of Lehman v. Board of Educ. of City Schoo1 Dist, of Citv of N,U,, A.D.2d 832,824 (2 dDept. 1981). 82 However, where the failure to adhere to a procedural requirement is merely technical, such a deficiency does not rise to the level of bad faith. &, Matter of Kolmel v. Citv of New Yo& 9 88 A.D.3d 527 (lst Dept. 2011). Petitioner asserts that respondents failure to timely observe and rate her performance and its failure to follow the procedures rcquired for teachers in danger of receiving a U-rating amounts to bad faith. Petitioner cites to Memorandum 80 and the Rating Pedagogical Staff Member Handbook ( Handbook ), however she has failed to specify which DOE rule or regulation that respondents violated. The Handbook is a guide, not a binding regulation or DOE policy. Ratings Officers are to coiisult the Handbook to assist in the rating of pedagogical staff members. Memorandum 80 provides that pre-conferences can take place in one-to-one conferences, in small groups, or by written notification outlining the areas to be evaluated. It further provides that teachers in danger of receiving a U-rating should have a one-to-one preconference. However, Memorandum 80 does not provide any guidance as to when a teacher is in danger of receiving a U-rating. Here, petitioner has failed to establish that respondents failure to follow Memorandum 80 and the Handbook supports a finding of bad faith. 3 [* 5] Petitioner s argument concerning Superintendent Hecht s decision to reaffirm her Urati,ng in spite of the Chanccllor s Committee s recommendation is without merit. The Chancellor s Coinmittee is an advisory panel which provides its recommendation regarding an affected teacher s appeal. The Chancellor is free to accept or reject the Committee s recommendation, with or without an explanation as to the final determination. See, Matter of McAulav v. Board of Educ. of City of N.Y,, 61 A.D.2d 1048 (2 d Dept. 1978); Matter of Golomb v. Board of Educ. of Citv School Dist., 106 Misc.2d 264 (1980). Respondents determination to sustain petitioner s U-rating is rationally supported by multiple observation reports and petitioner s failure to irnprovc professionally despite the assistance of a literary coach and a math coach. Accordingly, ADJlJDGED that thc petition is denied and the proceeding is dismissed, without costs and disbursements to either party. Dated: June 1,2012 ENTER: J.S.C. B1_EXANDEW W. HUNTER 4

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