Matter of Pepin v New York City Dept. of Educ.

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Matter of Pepin v New York City Dept. of Educ. 2012 NY Slip Op 32900(U) October 5, 2012 Supreme Court, New York County Docket Number: 102044/2011 Judge: Lucy Billings 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. [* 1] I .. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ -X _ _ In the Matter of the Application of MILICIADES PEPIN, _ I _ _ _ _ _ Index No. 1 0 2 0 4 4 / 2 0 1 1 Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - against - DECISION AND ORDER NEW YORK CITY DEPARTMENT OF EDUCATION, ~e spondent APPEARANCES: For Petitioner Miliciades Pepin, Pro Se For Respondent Celine Chan, Assistant Corporation Counsel 100 Church Street, New York, NY 10007 LUCY BILLINGS, J.: I. BACKGROUND In this proceeding pursuant to C.P.L.R. Article 78, petitioner seeks a judgment annulling (I) respondent's discontinuance of petitioner's probationary employment as an assistant principal , affirmed by respondent s Chancellor; ( 2 ) petitioner's unsatisfactory rating (U-rating) for the 2009-2010 school year; and (3) his placement on respondent's Ineligible Inquiry list. C.P.L.R. § 7803(3). Respondent moves to.dismiss t h e petition on the ground that t h e petition fails to s t a t e a claim. pepin. 142 C.P.L.R. §§ 3211(a) (7), 7804(f). 1 [* 3] 11. THE TERMINATION OF PROBATIONARY EMPLOYMENT Applicable Standards A. Respondent, an entity controlled by the City of New York, may terminate petitioner's probationary employment as an assistant principal without any statement of reasons or hearing. N.Y. Educ. Law § 2573(1) (a); Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 471 (2012); Frasier v. Board of Educ. of City School Dist. of City of N.Y, 71 N.Y.2d 763, 765 (1988); Berrios v. Board of Educ. of Yonkers City School Uist., 87 A.D.3d 329, 331 (2d Dep't 2011); Johnson v. New York City Dept. of Educ., 73 A.D.3d 927 (2d Dep't 2010). See Talamo v. Murphy, 38 N.Y.2d 637, 639 (1976); Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321 (1st Dep't 2006); Garcia v. New York City Probation Dept., 208 A.D.2d 475, 476 (1st Dep't 1994); Nelson v. Abate, 205 A.D.2d 454, 455 (1st Dep't 1994). To sustain a claim for reversal of that decision and for reinstatement, petitioner, as a probationary city employee, must demonstrate that his termination was for a constitutionally impermissible reason, otherwise in violation of law, in bad faith, or arbitrary. Frasier v. Board of Educ. of City School Dist. of City-of N.Y., 71 N.Y.Zd at 7 6 5 ; Johnson v. Katz, 68 N.Y.2d 649, 650 (1986); Zarinfar v. Board of Educ. of City School Dist. of City of New York, 93 A.D.3d 466 (1st Dep't 2012); Curcio v. New York City Dept. of Educ., 55 A.D.3d 438, 439 (1st Dep't 2008). Absent such a showing, respondent may terminate petitioner's probationary employment for any other reason or for no reason at a l l . pepin. 142 2 Swindler v. Safir, 93 [* 4] N.Y.2d 758, 762-63 (1999); Che Lin Tsao v. Kelly, 28 A.D.3d at 321; Cipolla v. Kelly, 26 A.D.3d 171 (1st Dep t 2006). Petitioner bears the burden to present admissible evidence showing such a deprivation of his rights, bad faith, or arbitrary action. Johnson v. Katz, 68 N.Y.2d at 650; Che Lin Tsao v. Kelly, 28 A.D.3d at 321; Medina v. Sielaff, 182 A.D.2d 424, 427 (1st Dep t 1992); Green v. Board of Educ. of City Dist. of N.Y., 262 A.D.2d 4 1 1 (2d Dep t 1999). A conclusory allegation of bad f a i t h or speculation that respondent s underlying motivation was unlawful does not satisfy petitioner s burden. Kelly, 28 Che Lin Tsao v. A.D.3d at 321; Garcia v. New York City Probation Dept., 208 A.D.2d at 476; Medina v. Sielaff, 182 A.D.2d at 427-28; Green v. Board of Educ. of City Dist. of N.Y., 262 A.D.2d at 412. Satisfying his burden entitles him to a hearing on whether his termination was in fact in violation of his rights, in bad faith, or arbitrary, not to an automatic reversal of respondent s decision. Swindler v. Safir, 93 N.Y.2d at 763; Cipolla v. Kelly, 26 A.D.3d 171; Medina v. Sielaff, 182 A.D.2d at 427. E. Petitioner s Claims The verified petition alleges t h a t petitioner s immediate supervisors instigated charges against petitioner in retaliation for h i s refusal to conceal the supervisors own misconduct. Petitioner attests on personal knowledge to his supervisors demand f o r help covering up their wrongdoing. Petitioner does not, however, allege any bias or retaliatory motive by respondent s Superintendent or the Chancellor s p e p i n . 142 3 [* 5] a Committee who conducted petitioner s hearing and ultimately determined to discontinue petitioner s probationary employment. Nor does the determination rely only on evidence gathered from petitioner s allegedly retaliatory supervisors. To the contrary, the determination relies on petitioner s admitted use of respondent s email system to send a prank email to petitioner s supervisors, falsely alleging a love triangle. Because petitioner was a probationary employee whom respondent was permitted to terminate Lor any reason, the admitted prank email provides sufficient grounds by itself for discontinuance of petitioner s employment as an assistant principal. Brown v. Board of Educ. of City School Dist. of City of New York, 8 9 A.D.3d 486, 487 (1st Dep t 2011). The alleged bias of petitioner s immediate supervisors or their delay or procedural error in reporting petitioner s misconduct is therefore of no consequence. For these reasons, the court dismisses the petition insofar as it seeks reinstatement of petitioner s probationary employment as an assistant principal. C.P.L.R. § § 3211 (a)(7) 7804 (f). I 111. THE U-RATING The U-Rating of petitioner for the 2009-2010 year relies on the report of an investigation by the Special Commissioner of Investigation ( S C I ) . Nonetheless, the transcript presented by petitioner shows that.,during the hearing January 4, 2011, reviewing petitioner s discontinuance and U-Rating, the Chancellor s Committee refused to hear testimony that the SCI pepin. 1 4 2 4 [* 6] investigation relied on biased or unreliable witnesses. Petitioner thus presents evidence that the U-rating is Ilwithout sound basis in reason," "without regard to the facts," and therefore arbitrary. Pel1 v. Board of Educ., 34 N.Y.2d 222, 231 (1974). See Goodwin v. Perales, 88 N.Y.2d 383, 392 (1996); Soh0 Alliance v. New York State Liq. Auth., 32 A.D.3d 363 (1st Dep't 2006). Petitioner a l s o presents evidence that the U-rating violated lawful procedure. C.P.L.R. § 7 8 0 3 ( 3 ) . His evidence indicates that petitioner's rating officer may have breached a Memorandum of Agreement between respondent and the Council of Supervisors and Administrators, by failing to develop goals or objectives with petitioner or to conduct a mid-year review. IV. THE INELIGIBLE INQUIRY LIST In conjunction with discontinuing petitioner's probationary employment as an assistant principal, respondent placed petitioner<on respondent's Ineligible Inquiry list, prohibiting him from future employment with respondent in any capacity. No evidence in the record demonstrates any standards or procedures for determining when discontinuance of probationary employmerit results in placement on the Ineligible Inquiry l i s t . Absent such standards or procedures, petitioner lacked a meaningful opportunity to contest his placement on the Ineligible Inquiry list. Wolfe v. Kelly, 79 A.D.3d 406, 410 (1st Dep't 2010); Mayo v. Personnel Review Bd. of Health & Hosps. Corp., 6 5 A.D.3d 470, 472-73 (1st Dep't 2009). Nor does respondent's decision explain pepin. 142 5 [* 7] the reasoning even after the fact. Because the evidence currently shows respondent placed petitioner on the Ineligible Inquiry list without standards, procedures, or explanation, petitioner again states a claim that Ilbecause of the lack of guidelines'l respondent's determination is '!arbitrary and capricious as a matter of law." Nicholas v. Kahn, 47 N.Y.2d 24, 2 8 (1979). See B i q A ~ p l eFood Vendors' Assn. v. Street Vendor Review Panel, 90 N.Y.2d 402, 408 (1997); Goodwin v. Perales, 88 N.Y.2d at 392; Pell v. B o a l r d of Educ., 34 N.Y.2d at 231; Soh0 Alliance v. New York State Lis. Auth., 32 A.D.3d 363. Petitioner also states a claim that his placement on the Ineligible Inquiry list i s "without regard t o the facts," Pell v. Board of Educ., 34 N.Y.2d at 231, because he presents the hearing transcript showing the Chancellor's Committee refused to hear testimony that the SCI Report relied on biased or unreliable witnesses. V. CONCLUSIONS Consequently, the court grants respondent's motion to dismiss the petition insofar as it seeks the reinstatement of -c- -" . petitioner's probationary employment, but otherwise denies the motion. C.P.L.R. §§ 3211(a) ( 7 ) , 7804(f). Respondent shall serve and deliver to the court at 71 Thomas Street, Room 204, any answer to the petition within 30 days after entry of this order. See C.P.L.R. §§ 3012 (a), 3211 ( f ) , 7804 (c). Petitioner shall serve and likewise deliver any reply within 20 days after service of an answer. pepin. 142 C.P.L.R. §§ 3012(a), 7804(c) and (d). After 6 [* 8] expiration of the r e p l y period, the court will schedule a further hearing on the petition to determine the extent of relief to be granted. C.P.L.R. DATED: October §§ 7 8 0 3 ( 3 ) , 7806. 5 , 2012 L-y"J *P75 LUCY BILLINGS, J.S.C. pepin. 142 7

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