Matter of Devito v Department of Educ. of the City of N.Y.

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Matter of Devito v Department of Educ. of the City of N.Y. 2012 NY Slip Op 32073(U) July 31, 2012 Sup Ct, NY County Docket Number: 107636/2011 Judge: Michael D. Stallman 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 81712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice In the Matter of the Appllcatlon of INDEX NO. CAMILA ANN DEVITO, MOTION DATE 10763611I 3/14/12 Petitioner, -v- MOTION SEQ. NO. 001 THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK AND THE CITY OF NEW YORK, Respondents. The followlng papers, numbered I to Notice of Petltlon- 4 were read on this Artlcle 78 petition. Verified Petltlon - Exhlblt A Notlce Qf Cross Motion-Ammation - Exhibits 1-6 , Petltloner a Afflrmatlon in Oppoeltlon t o Croelr Motlon - Exhiblt 1 Verlfled Answer- Exhlblta 1-12 INo(s). 1No@). 1 No(@. INo(s). 1 2 3 4 Upon the foregoing papers, it is ADJUDGED that this Article 78 petition is decided in accordance with the annexed memorandum decision andjudgment Respondents cross motion was decided in a prior decision and order dated January 31,2012. UNFILED JUDGMENT This Judgmnt has not been entered by the County Clerk and notice of entry cannot be w e d based hereon. To W i n entry, counsel or authorized represehtim m b ~ t appear in person at the Judgment Clerk s Desk (Rnom ISiS), 3 1 . ................................................................ 1 CASE DISPOSED PETITION I S 0 GRANTED DENIED 3. Check If appropriate: ................................................ 0SETLEORDER 0DO NOT POST A 4 - n ,J.S.C. New York, New York I.Check one: I x Dated: 2. Check If approprlate: ............................ NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21 In the Matter of the Application CAMILA ANN DEVITO, Petitioner , For a Judgment p u r s u a n t to Artic-e 78, CPLR, Index No. : 107636/2011 -against- DECISION AND JUDGMENT Hon. MICHAEL D. STALLMAN, J. : Petitioner initially brought this Article 78 proceeding against respondents the Department of Education of the City of New York, the C i t y School District of the City of New Y o r k and the City of New York (collectively, DOE), seeking a judgment declaring that DOE'S actions in connection with h e r U rating, the discontinuing of h e r probationary status, and her subsequent termination, were arbitrary and capricious. Petitioner a l s o sought monetary and equitable relief for, among other things, alleged loss of wages and damage to h e r reputation, and sought to be reinstated as a tenured teacher. the petition. -1- DOE cross-moved to dismiss [* 3] In a decision a n d order dated January 31, 2012, this court held that petitioner had failed to exhaust her administrative remedies in connection with her U rating, and that portion of the petition challenging the U rating was dismissed. However, petitioner's challenge to her notice of termination was found to have been presented within the statute of limitations, given that petitioner's time line was extended 30 days a f t e r having filed a notice of claim, according to binding appellate c a s e law in other departments. This court found that the C i t y of New York was not a proper party and dismissed it from t h e action. This court also directed the DOE to answer the remaining portion of the petition. At issue here is whether or not t h e DOE'S discontinuation o f petitioner's probationary status and her subsequent termihation was arbitrary and capricious. BACKGROUND AND FACTUAL ALLEGATIONS The facts were previously set forth in the court's order and decision dated January 31, 2011. The following background relates to the matter currently before the court. Petitioner was employed as of August 27, 2007 by the DOE as a probationary ESL teacher at a school in the Bronx. She received satisfactory ratings on her annual professional performance reviews for the 2007-2008 and 2008-2009 school years. However, on her 2009-2010 review, dated June 2010, she received an overall U rating. Despite the U rating, petitioner's -2- [* 4] probation status was extended by agreement. On her review dated December 13, 2010, petitioner received an overall U rating. On the review, every category had a U rating and b o t h the principal and Superintendent Elena Papaliberios, the Superintendent of the Bronx High Schools (Superintendent), recommended the "denial of certification of completion of probation." Respondents' Exhibit 6, at 2. The review, along w i t h supporting documentation, s u c h as letters to petitioner's file, was forwarded to the Superintendent's Office. On December 30, 2010, petitioner mailed respondents a letter The letter states, in pertinent part: of resignation. . * I, G . a u l a Ann Devito, hereby resign from The Felisa Rincon De Gautier Institute of Law and Public Policy ( X 5 1 9 ) located on 1440 Story Avenue in the Bronx borough of New Y o r k as of Thursday, December 30, 2010 due to a reckless and unfit building administration. Please accept this letter of resignation as my given notice. My tenure at public high school X519 will come to a close on Friday January 14, 2011. Thank you for permitting me the oppo'rtunity to guide and celebrate the lives of the many students I have had the pleasure of educating in the past three and a half years. It is time now for me to move on in pursuit of new challenges and opportunities which await me. Petitioner's Exhibit A, at 1. On January 13, 2011, the day before the effective date on which petitioner's letter said the resignation would become effective, the Superintendent mailed petitioner a letter stating that, on February 1 4 , 2011, the Superintendent would be -3- [* 5] considering whether or not petitioner would be terminated. Based on the Superintendent s decision, the effective termination date was also to be as of February 14, 2011. Petitioner was advised that she could submit any evidence in opposition to the documentation attached to her review, and that this evidence had to be submitted no later than seven (7) days prior to the date of my consideration and final determination or [sic] your Discontinuance. Respondents Exhibit 9, at 1. On F e b r u a r y 14, 2011, the Superintendent mailed petitioner an official discontinuance of probation, which advised petitioner that, after an additional review, she was being terminated as of February 14, 2011. Respondents Exhibit 10. On May 9, 2011, petitioner filed a notice of claim with the Office of Corporation Counsel. On June 30, 2011, petitioner commenced the initial Article 78 proceeding. With respect to the notice of discontinuance, petitioner alleged that the DOE acted arbitrarily, capriciously and in bad f a i t h when it terminated her after she had already resigned as a teacher. Petitioner sought compensatory damages in the amount of $2 million, and requested that the U rating, and her termination of probation, be expunged from her record. As stated in the papers submitted with its cross motion to dismiss, DOE argues t h a t , because petitioner s alleged resignation letter was not irrevocable, DOE was allowed to -4- [* 6] proceed with her discontinuance. DOE contends that the language in petitioner's l e t t e r did not indicate t h a t it was not irrevocable. As such, according to DOE, the Regulation of the Chancellor would have allowed petitioner to withdraw her resignation, under certain circumstances, and possibly seek reappointment. Therefore, because the resignation was not final, the DOE was permitted to proceed with h e r discontinuance. Assuming, arguendo, that the DOE was permitted to proceed with its discontinuance despite petitioner's letter, in its answer DOE argues that its decision to deny petitioner certification of completion of her probation was not arbitrary and capricious. DOE contends that many letters were placed in petitioner's file, which substantiated allegations of verbal and corporal punishment, insubordination, professional misconduct and violation of school policy. DOE contends that petitioner received multiple U ratings on her review which demonstrated petitioner's poor performance. Specifically, DOE points to an incident which occurred on November 10, 2010 in petitioner's classroom. The incident, an "alleged corporal punishment and/or verbal abuse report of investigation", was confirmed by the Assistant Principal Aaron Schwartz (Schwartz), and was sent to the O f f i c e of Special Investigations. The incident is described as follows: [The student] went to the principal crying and told her that when she couldn't answer -5- [* 7] the \\DONow" Ms. D e v i t o told her that she had been in America f o r many y e a r s & should know english. Then Ms. Devito made her move her seat saying "move your f u c k i n g seat." DOE'S Exhibit 7, at 3. After interviewing the student involved and other witnesses, Schwartz found the allegation to be substantiated. Schwartz concluded, among other things, that petitioner had "created a climate of intimidation and disrespect by engaging in a pattern of inappropriate and punitive behaviors ... . " Id. Petitioner was informed about this investigation in a meeting with Schwartz and waived her rights to union representation. DOE's Exhibit 8, at 6.0-6.4. According to Schwartz, petitioner claimed that the students were lying, yet she did not provide a reason for why they would do so. She was informed, via a letter which was placed in her file, that she had committed a c t s of unacceptable teacher conduct. Petitioner argues that her notice of discontinuance was arbitrary and capricious, in t h a t DOE terminated her after she had already resigned from her position. She believes that DOE's allegations related to her conduct "merely attempt to show a basis for the 'U' rating." Petitioner's Memorandum of Law, at 6. As explained above, petitioner submitted her letter of resignation on December 30, 2010, informing DOE that her resignation would be effective as of January 14, 2011. to the Regulation of the Chancellor 205, -6- ¶ She cites 26, quoting the [* 8] following, in pertinent part, "[rlesignations shall be submitted in writing and, once submitted by an employee, shall be considered final . " However, the entire Regulation of the Chancellor 205, ¶ 26, reads as follows: Resignation - Except in the c a s e of resignation to return to a former position, the resignation by a member of the teaching and supervising staff shall be deemed to be a resignation from the pedagogical service of the public s c h o o l system. Thereafter, upon application, the resigned employee may be issued a certificate f o r substitute service so long as service is satisfactory and the holder indicates his or her availability for continuing service. Resignations shall be submitted in writing and, once submitted by an employee, shall.be considered final. However, if there has been no break in actual service, the appointing authority may, in its discretion, permit the employee to rescind the resignation before its effective date. Respondents' Cross Motion, Exhibit 6. Petitioner received the official notice that she was being terminated, and her probationary status was being discontinued, as of February 14, 2011. Nonetheless, petitioner maintains that she had resigned as of January 14, 2011, and that respondents effectively terminated her after her resignation from DOE, disparaging her reputation as a teacher. -7- [* 9] DISCUSSION Notice of Discontinuan C e In deciding an Article 78 proceeding, " a reviewing court is not entitled to interfere in the exercise of discretion by an administrative agency unless there is no rational basis for the exercise, or the action complained of is arbitrary and capricious." Auth., M a t t e s of Soh0 A l l i a n c e v New Y o r k S t a t e Liq. 32 A D 3 d 3 6 3 , 3 6 3 ( l S t Dept 2006), citing to M a t t e r of Pel1 v Board of E d u c . of U n i o n F r e e School D i s t . N o . 1 of T o w n s of S c a r s d a l e a n d M a m a r o n e c k , Westchester C o u n t y , 34 NY2d 222 (1974); see CPLR 7 8 0 3 (3). " T h e arbitrary and capricious standard asks whether the determination in question had a rational basis [internal quotation marks and citations omitted]." Matter of Mankarios v New Y o r k City T a x i and L i m o u s i n e C o m m n . , 4 9 A D 3 d 316, 317 ( l S t Dept 2008). However, with respect to the termination of a probationary employee, a public employer l i k e DOE is allowed to discharge a probationary employee like petitioner "for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law [internal quotation marks and citation omitted]." M a t t e r of Kolmel v City of New Y o r k , 8 8 AD3d 5 2 7 , 5 2 8 ( 1 3 t Dept 2011). For the reasons set forth below, the decision to terminate -8- [* 10] petitioner was permissible. The DOE was allowed to proceed with petitioner's discontinuance because petitioner's letter was not irrevocable, and she could have possibly withdrawn it and reapplied to be a teacher. In support of its view that DOE was allowed to proceed with petitioner's discontinuance despite her resignation letter, DOE relies on Matter of F o l t a v Sobol (210 A D 2 d 857 [3d Dept 19941). In Matter of Folta v S o b o l , s u p r a , the petitioner, a tenured teacher, was awaiting an Education Law § 3020-a hearing panel's determination to see whether or not charges would be upheld against him for alleged sexual harassment. While the outcome of the hearing was pending, the petitioner submitted a resignation letter. Despite petitioner's alleged resignation, the hearing panel proceeded to uphold the charges, and recommended that petitioner be dismissed. Petitioner then brought an Article 78 proceeding seeking to nullify the charges and his dismissal, based on the fact that he had already allegedly resigned. The Appellate Division, Third Department found that the petitioner Folta's resignation did not preclude the hearing panel from proceeding with the charges and ultimately terminating him. It further found that, absent an irrevocable resignation or a voluntary settlement, the school board was not obligated t o halt the administrative hearing and determination process. It held that because the petitioner's letter was not irrevocable, his -9- [* 11] resignation was tantamount to a waiver under Education Law 5 3020-a (2) and a school board may proceed accordingly. 858. Id. at The Appellate Division further explained that, under the Regulation of the Chancellor and the applicable bargaining agreement, because petitioner s letter was not irrevocable, petitioner could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment. 858-859. Id. at It concluded that such a possibility, provides a valid reason for allowing an Education Law 5 3020-a hearing to proceed and placing the Hearing Panel s decision in a teacher s personnel file, thereby foreclosing the potentiality that a Chancellor would unwittingly approve an unfit teacher s request f o r reemployment. Id. at 859. In a recent New York Department of Education Commissioner s decision, the Commissioner found that Matter of F o l t a v Sobol applied to petitioners therein who were probationary employees with the Board of Education. M a t t e r of Fine v B o a r d of E d u c . of Southampton Union F r e e School D i s t . , 2011 NY Educ Dept LEXIS 81, *5-6 ( J u l y 22, 2011, Decision No. 16,266). Although the petitioners in Mattes of Fine v B o a r d of E d u c . of Southampton Union F r e e School Dist. had submitted resignation letters, the Commissioner found that the Board of Education was permitted to go ahead with their terminations. The decision cited to Matter of F o l t a v S o b o l and held the following, in pertinent part: -10- [* 12] Petitioners' resignation letters were not irrevocable (the board had not accepted petitioners' resignations nor had the effective date occurred) and there was no settlement. Prior to June 30, 2010 - their respective effective dates - petitioners could have rescinded their resignations at any time. In light of the foregoing, I find that respondents were within their authority to act on June 17, 2010 and terminate petitioners' probationary appointments. Id. The reasoning of M a t t e r of F o l t a v Sobol a n d Matter of F i n e v B o a r d of Educ. of Southampton Union Free School D i s t . applies to the situation presented in the instant proceeding. The DOE Petitioner's resignation letter was not irrevocable. contacted petitioner before the alleged effective date of her termination and told h e r that it was proceeding to review whether or not she would be discontinued as a probationer. There had not been a break in service. Similar to Matter of Folta v S o b o l , because petitioner was not part of a voluntary settlement, a n d her letter was n o t irrevocable, she c o u l d have potentially rescinded her resignation, were she to have received permission, and reapplied for her position or for a substitute position. above, the Regulation of the Chancellor, C-205 As set f o r t h ¶ 26, provides the following, in pertinent part: Thereafter, upon application, the resigned employee may be issued a certificate f o r substitute service so long as service is satisfactory and the holder indicates his or -11- [* 13] her availability for continuing service. Resignations shall be submitted in writing and, once submitted by an employee, shall be considered final. However, if t h e r e has been no break in actual service, the appointing authority may, in its discretion, permit the employee to rescind the resignation b e f o r e its effective date. Petitioner argues that she would need permission to apply for substitute service or another teaching position. She also contends that her resignation was final and in accordance with the Regulation of the Chancellor. not synonymous with "irrevocable." In this context, "final" is As in Matter of F o l t a v Sobol, even the "possibility" that the teacher could withdraw the resignation, permits the DOE to disregard petitioner's resignation and proceed with the discontinuance. The DOE rationally would not want the Chancellor to be in a potential situation of "unwittingly" approving an unfit teacher who was applying f o r reemployment. I d , at 859. Moreover, the DOE notified petitioner of its intention to consider discontinuance of probation before the stated effective date for leaving DOE service contained in petitioner's purported resignation letter. Because petitioner's resignation letter was not irrevocable, it was permissibly disregarded by the DOE; contrary to petitioner's contentions, DOE still had the opportunity to terminate her. Accordingly, petitioner cannot now claim that she was impermissibly terminated after s h e had already resigned. Moreover, as discussed below, DOE'S decision to terminate -12- [* 14] petitioner was not unconstitutional or illegal or done in bad faith. In her original petition, petitioner asserts, without any proof, that she was retaliated against by the DOE f o r complaining about the number of students assigned to her class. She also alleges, again with o u t any evidence, that as a result of her complaints, she was given "untrue" performance evaluations. Petition, ¶ 10. However, these contentions are "speculative and insufficient to establish bad faith." Department of E d u c . of C i t y of N . Y . , M a t t e r of Murnane v 82 A D 3 d 576, 576 (lSt Dept 2011). Allegations of confirmed verbal a n d / o r corporal abuse were forwarded to the Office of Special Investigations and letters were placed in petitioner's file. Petitioner was also reprimanded by her school for violation of school policy, professional misconduct and insubordination. The record establishes that DOE'S decision to discontinue petitioner's probationary service was not in bad faith, illegal or unconstitutional. Even if the discontinuance were to be analyzed, as petitioner urges, under the general Article 78 standard of CPLR 7 8 0 3 ( 3 ) , it cannot be considered arbitrary and capricious. DOE had a rational basis. In response, as previously mentioned, petitioner does not dispute the DOE'S reasons, stated in its answer, for why she was -13- [* 15] terminated. Instead, she incorrectly claims that D O E ' s reasons f o r terminating her solely relate to the challenge of her U rating, which challenge was already dismissed. However, petitioner's evaluation clearly indicates that the letters to her file were being included as part of the documentation sent over to the Superintendent's o f f i c e for review of her potential denial of completion of probation. Petitioner has not provided any evidence demonstrating that DOE's termination of her probationary status on the merits, which was supported by a rational basis, was done "in bad faith, for a constitutionally impermissible purpose or in violation of law." In light of the court's analysis, petitioner has not . demonstrated entitlement to any damages or other relief. CONCLUSION AND JUDGMENT Accordingly, it is hereby A D J U D G E D that the petition is denied in i t s entirety and the proceeding is dismissed. Dated: J u l y 3 1 , 2012 ENTER New York, N Y UNFILED JUDGMENT This Judgmenthas not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain mtry. CoUIIseJ o authorized representattve must r appeer in perrron a the Jwmt Ckark's C h k (Room t 141B). -14- . 8 b.' ,,+> ,a *- ' ' q';?.J " I

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