Cummins v New York City Dept. of Educ.

[*1] Cummins v New York City Dept. of Educ. 2010 NY Slip Op 50203(U) [26 Misc 3d 1221(A)] Decided on January 3, 2010 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 18, 2010; it will not be published in the printed Official Reports.

Decided on January 3, 2010
Supreme Court, New York County

Kevin Cummins, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

New York City Department of Education, Respondent.



117096/2008



For the Petitioner:

Wolf & Wolf, LLP

By: Edward H. Wolf, Esq.

910 Grand Concourse, 1F

Bronx, NY 10451

(718) 410-0653

For the Respondent:

Michael A. Cardozo, Esq.

Corporation Counsel of the City of New York

By: Jane E. Andersen, Esq.

100 Church Street, Room 2-315

New York, NY 10007

(212) 788-0870

Paul G. Feinman, J.

Petitioner challenges his termination as a teacher as having been arbitrary and capricious and made in violation of his right to due process. Originally, petitioner also claimed that he was improperly treated as a non-tenured teacher because the respondent failed to give him full Jarema credit.[FN1] However, this latter claim need not be addressed as petitioner withdrew it at oral argument in light of the documentary evidence proffered in respondent's answer (see Transcript of Oral Argument, 10/7/09, Court Reporter Deborah Rothrock). For the reasons which follow, the petition is dismissed.

Factual and Procedural Background

Petitioner was employed since 2000 by respondent Department of Education as a non-tenured teacher (Am. Pet. ¶¶ 1, 8). For five of those years, he worked as a substitute teacher [*2](Am. Pet. ¶ 4). He was then hired as a provisional sixth-grade math teacher and received satisfactory ratings for the next three years (Am. Pet. ¶¶ 5-6). However, in March 2008 he was accused of corporal punishment, a charge which was later dropped, and sent to a reassignment center (Am. Pet. ¶ 7). By letter dated June 20, 2008, petitioner was notified that he was being denied his Certification of Completion of Probation, and that it was being recommended that his license be terminated (Ver. Pet. Ex. 10). The letter informed him of his right to appeal the termination to the Office of Appeals and Reviews, which petitioner did (Ver. Pet. Ex. 15). He was terminated from his position on August 25, 2008 (Am. Pet. ¶ 8).

Respondent alleges that petitioner's termination was based on two unsatisfactory informal classroom observations, two allegations of verbal and corporal abuse, and a history of lateness (Ver. Pet. Ex. 11 - 14). By notice dated January 13, 2009, petitioner was informed that the Chancellor's hearing was scheduled for February 24, 2009, and that if he planned to call any witnesses, he must notify the office in advance of the hearing (Ver. Pet. Ex. 16). According to respondent, the Office of Appeals and Reviews did not receive a request from petitioner or his representative to present a witness on his behalf (Resp. Ver. Ans. to Pet. Am. Ver. Pet. ¶ 59).

Pursuant to Chancellor's Regulation C-31, as a non-tenured teacher, he was entitled to a hearing on his termination, which occurred on February 24, 2009 (Am. Pet. ¶ 8).At the hearing, certain proffered evidence was removed due to procedural objections, including the letter detailing allegations of verbal abuse, and one of the informal classroom observations, the letter detailing 14 days of unexcused lateness, and the 2007-2008 school year report rating petitioner "Unsatisfactory" (Resp. Ver. Ans. to Pet. Am. Ver. Pet. ¶ 63; Ex. 18, 19). Testimony was presented by the principal and assistant principal. Petitioner's union advisor presented evidence and arguments against respondent's version (Ver. Ans. Ex. 17).

According to the Chancellor's Committee's recommendation of February 24, 2009, two of the three committee members found that petitioner's work should be rated unsatisfactory and that he be denied certification (Ver. Pet. Ex. 17). The dissenting member disagreed based on there being only informal observations, rather than formal observations, and that there was no documentation of petitioner's lateness, other than the letter (Id.).

Petitioner was informed by letter dated March 18, 2009, that the Chancellor's Committee upheld the recommendation to deny certification of completion of probationary service, based on petitioner's being found to be "late an inordinate number of times," and that the DOE Superintendent, Ainslie Cumberbatch, reaffirmed the action (Am. Pet. Ex. A, March 18, 2009 letter, and attached Feb. 24, 209, Review by Chancellor's Committee). Petitioner thereafter commenced this instant proceeding, seeking to annul the determination based on the failure of the DOE to produce records of his lateness, and its denial of his right to call a witness to testify on his behalf. His other argument, that he was entitled to tenure by estoppel under Education Law § 2509 (1) (a) and to a tenured teacher discharge hearing pursuant to Education Law § 3020 — were withdrawn at oral argument.

Analysis

Under CPLR 7803 (3), an Article 78 proceeding to review examines whether the agency's determination was "made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion." The court may only consider the evidence that was before the agency (Matter of Tilles v Williams, 119 AD2d 233 [2d Dept 1986]).

Education Law § 2573 (1) (a) requires that teachers complete a probationary period of [*3]three years before achieving tenure. A probationary teacher can be terminated at any time during the probationary period, for any reason and without a hearing, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (Frasier v Board of Educ., 71 NY2d 763, 765 [1988]; Education Law § 3014 [1]). Given the overwhelming documentary evidence showing that petitioner was not entitled to Jarema credit, his challenge to his treatment as a non-tenured teacher has been withdrawn.[FN2]

Petitioner, as a non-tenured teacher, received a hearing pursuant to Chancellor's Regulation C-31. He argues that the determination to terminate his employment should be annulled because he was not permitted to call witnesses. Chancellor's Regulation C-31 provides that the employee is entitled to "be represented by an advocate selected by the Union; present all relevant evidence; call witness in his/her behalf; cross-examine witness and make an oral presentation."[FN3] When, as here, petitioner's objection was not raised at the time of the hearing, it may not now be considered for the first time in reviewing the administrative proceeding (Fanelli v New York City Conciliation & App. Bd., 90 AD2d 758 [1st Dept. 1982], affd 58 NY2d 952 [1983]). Even assuming the challenge was preserved, petitioner has not submitted any evidence to establish his claim that he attempted to call a witness or what testimony the particular witness would have provided. Thus, there is no way to evaluate his claim that such unidentified witnesses, had they been heard, would have resulted in the charges being dismissed. Absent sufficient proof of a written request and a denial by the Office of Appeals and Reviews, the court will not grant the branch of the petition seeking to annul the C-31 hearing determination on due process grounds.

Petitioner, a probationary employee, has also not established that respondent's actions or determination were arbitrary and capricious, or in error of law, or an abuse of discretion. The petition is denied and the proceeding is dismissed. It is

ADJUDGED and ORDERED that the petition is denied and the proceeding is dismissed.

This constitutes the decision, judgment, and order of the court.

ENTER

Dated:_______________________________

New York, New YorkJ.S.C.

Footnotes

Footnote 1: Jarema credit under Education Law § 2509 (1) (a) provides that in the case of a teacher who has "rendered satisfactory service as a regular substitute [teacher] for a period of two years . . . the probationary period shall be limited to one year" rather than the usual three years. Various rules for its calculation and application have developed which the court need not address in light of the petitioner's withdrawal of this branch of his petition.

Footnote 2: According to respondent's verified answer, petitioner never served 80 school days or more in any 90 consecutive school days in the same school prior to his probationary appointment on September 6, 2005 (Resp. Ver. Ans. to Pet. Am. Ver. Pet. ¶ 45). Respondent submits copies of petitioner's timekeeping history from DOE's per diem system for the 2000-2005 school years (Ver. Ans. Ex. 2-5). The timekeeping exhibits show that petitioner was assigned to a number of different schools throughout the years and there is no evidence that he worked 80 or more days of service in any 90 consecutive school days in the same school, thus providing sufficient evidence to support the DOE determination that petitioner was not tenured at the time of his termination on August 25, 2008.

Footnote 3: See Amended Petition, Ex. B (Chancellor's Regulation C-31).