Matter of Gumbs v Board of Educ. NYC Sch. Dist.

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Matter of Gumbs v Board of Educ. NYC Sch. Dist. 2013 NY Slip Op 31132(U) May 15, 2013 Sup Ct, New York County Docket Number: 104277/12 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 512312013 [* 1] . SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 3.3 PART Justice - Index Number: 104277/2012 - GUMBS, DARLENE INDEX NO. VS. MOTION DATE NYC BOARD OF EDUCATION SEQUENCE NUMBER : 001 ARTICLE 78 The following papers, numbered 1 to 2fi;,were read on this motion to/for Notice of Motion/Order to Show Cause Answering Affidavits MOTION SEQ. NO. - Affidavits - Exhibits (No(s). I @ 21 INo(s). 22 33 , 2s INo(s). 2$-2 7 - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is &&d k acta/c$me mkk ~ ~ I I M W & flMmayt \ UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be sewed has& hereon. TO uhtajn e m,GQ.W&I (MT .zdihma rqresentativa must o , qppaar i p m m a the Judgment C W s Desk (RXtlll t 11) 4B. I * * C Y 91 1 ,J.S.C. ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: .............. MOTION I: r]GRANTED S DENIED 3. CHECK IF APPROPRIATE: ................................................ uSETTLE ORDER 1. CHECK ONE: 0DO NOT POST NON-FINAL DISPOSITION GRANTED IN PART 0OTHER aSUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Petitioner, Decision and Judgnient For a Judgment Pursuaiit to Article 78 of the Civil I ractice Law and Kules, UNFED JUDGMENT -against- This judgment has not been entered by the Countv Clerk and notice of entry cannot be served based hen&. To 13oard of Education of thc City School obtain entry, counsel or authorized representative must 13istrict ofthc City ol-New York, and Dennis M. Walcott, in his ofiicial capacity appear in person at the Judgment Clerk s Desk (ROOm as Chancellor of the City School District of the City of New York, 1418). Kcspondents. The application by petitioncr for an order pursuant to Article 78 ofthe CPLR, declaring that pctitioner s unsatisfactory rating for the 201 1-2012 school ycar and termination was arbitrary and capricious and in violation of-respondents established policies, procedures, law, and regulalions regarding the rating of pedagogical employees and in breach of contract; reversing petitioner s unsatisiktory rating and changing it to satisfactory, reinstating petitioner retroactively to the datc of her termination with full back pay, benefits, seniority, and all other benefits and emoluments of employment, and awarding tenure to petitioncr as a guidance counselor, is denied. Respondents cross-motion to dismiss for failure to state a cause of action pursuant to CPLR 7804 (f) and 32 11 (a) (7) is granted with costs and disbursements to respondents. Petitioner is employed by respondcnt I3oarcl o r Education of the City School District ol the City ofNew York ( BOK ) as a tenured teacher of physical education. Effective January 3, 201 1, petitioner accepted an appointment to a probationary guidance counselor position at thc I ligh School for Global CitiLenship in Urooklyn, New Y ork. Petitioner s probationary period would have expircd on January 3,2013, but her appointment as a guidance counselor was discontinued on luly 27, 20 12. Petitioner received a satisiactory rating on her Annual Professional Performance Review ( APPR ) f or thc 2010-201 1 school year, howcvcr issues emerged the following school year. During the course of the 20 I 1-2012 school ycar, petitioner rcccived an official parcntal complaint and numerous emajls from parents and school administrators notifying hcr of the various issucs. Hy letter dated June 18,2012, petitioner was notified that a mceting had been scheduled with the principal to discuss multiple issues that might lead to disciplinary action. . . . . [* 3] Petitioncr had not previously been callcd to a disciplinary meeting during her probationary term. I n addition, petitioner did not reccivc any formal or inlormal observation during thc 201 0-201 1 or 20 1 1-201 2 school years. On Julie 20, 20 12, with a union representative present, petitioner met with the principal to discuss allegations of parental complaints, lack of record keeping, attendance issues, and college applicationslShT participation rates issues. About half an hour after the meeting, petitioner rcceived four Icttcrs, all dated June 20,2012, which forinally laid out each area of these allegations (the disciplinary letters ). Petitioner also received hcr APPR for thc 201 1-2012 school year, which rated her unsatisfactory and included recommendations by thc principal and supcri ntcndcnt for discontinuance of pctitioncr s probationary s e n ice. Section 4 oftlic APPK listed the disciplinary letters as documentation in support ol the rating. Ry letter dated June 20,20 12, which was annexed to petitioner s APPR, petitioner was informed that tlic superintendent would review and consider whether her services as a probationer should be discontinued as of the close o r business July 27, 201 2. The letter stated that pctitioiier could submit a written rcsponse for consideration. Petitioner did submit a wri ttcn responsc addressing the allegations in each of the disciplinary letters (the response ). By lctter dated July 27, 2012, upon rcview o C all appropriate docunicntation, the supcrintendent alXrmed petitioner s discontinuance of probationary service effkctive imrnediatcly (tlic discontinucmce letter ). Petitioner did not receive a copy of the discontinuance lctter until shc returned to school on September 4, 2012. Petitioner was returned to a tenured teaching position following her discontinuance as a probationary guidance counselor. A probationary employee is entitled to have a discontinuance andor unsatislactory rating reviewed by a committee at a licaring pursuant to the Regulation of the Chanccllor C-31, the Bylaws of the Panel for Educational I- olicyof thc New York City Department of Education, and thc colicctivc bargaining agreement between the I Jnitcd Federation of I eachers and respondents. On July 9, 20 12, petitioner rcquested an appeal for her discontinuance and unsatisfactory rating. On Septembur 21,2012, a Chancellor s Conimittce meeting was held to review the reconiniendation or discontinuancc of petitioner s probationary scrvicc as a guidance counselor. Hy letter dated November 5 , 201 2, thc superintendent reallhied petitioner s discontinuance in accordance with the rccommendation by the Chancellor's Committee report. First, petitioner s unsatisfactory rating was rational and did not violate respondents established policies, procedures, law, and regulations regarding tlic rating of pedagogical employccs or constitute a breach of contract. While the fact that petitioner never rcccivcd formal or informal observations of her work as a guidancc counselor may have contravened thc procedures utilized h r thc rating of pedagogical staff mcm bcrs as detailed in a handbook cntitlcd New York City Public Schools, Kating Pedagogical Staff Mcmbcrs (the Handbook ), this does not give petitioner an eiititlcnicnt to judicial relief. 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 Pcll v. Ed. of Educ. of Union Frcc School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222,231 (1974). Even though thc court might have decided dil fkrently were it in the agency s position, the court may not upset the agency s determination in 2 [* 4] the absence or ; finding, not supportcd by this record, that the determination had no rational I basis. Matter of Mid-Stale Mgt. Corp. v. New York City Conciliation & Appeals Ed., 112 AD2d 72, 76 (1 st Dept 1985). Therefore, the proper standard is whether the administrative detcrniinatioii was rationally based i n tlic rocord. Matter of Storman v. New York City Dcpt. of Educ., 95 AD3d 776,2012 NY Slip Op 04217 (1st Dept 2012); Katyreva v. New York City Depl. of Educ., S ADSd 283,2008 NY Slip Op 02902 (1st Dept 2008). O An APPK rating is arbitrary and capricious when it is made in violation of lawful procedure or a substantial right. & Mattcr of Cohn v. Hoard of Educ. of the City Sch. nist. of the City of NY, 102 AD3d 586,2013 NY Slip Op 0041831 (1st Dept 2013), affg Mise 3d 1241(A), 2011 NY Slip Op 51070(U) (Sup Ct, N Y County 2011). Judicial reiicf is available to compel an administrative body or of ficer to comply with its own internal rules and regulations. -Tedeschi v. Wagner Coll., 49 NY2d 652 (1980). This court follows the general rulc that See judicial reliel is not available to compel the ROE to comply with the Handbook bccausc it only provides a guideline, and not a rule or regulation guaranteeing a substantial right. Applewhite v. NYC Ed. of Educ., 2012 NY Slip Op 32182(U), 8 (Sup Ct, NY County 2012, Lobis, ,J.); -Mattcr of Cohn, 102 AD3d 586; Brown v. City of New York, 2012 NY Slip Op 31472(1J) see (Sup Clt, N Y County 2012); Richards v. Board of Educ. of the City School Dist. of the City of NY, 2012 NY Slip Op 31539(1J) (Sup Ct, NY County 2012); Matter of Rodriguez v. Board o f JCduc. of the City School Dist. of the City of NY, Sup Ct, NY County, Jan. 11, 2013, Hunter, .J., index No. 103037/12; contra Matter of Gehlaut v. Board of Educ. of the City Sch. Dist. of the City of NY, 2013 NY Slip Op 30339(U) (Sup Ct, NY County 2013, Lobis, -1.). In Matter of Gehlaut, Justicc ],obis dcclincd to follow licr holding in Applewhite, finding instead that Gehlaut had established that the Handbook must be equated with administrative rilles and regulations that al l ect a subslantial right o l the Petitioner. Justice Lobis distinguished Matter of Gchlaut from Applewhite and the First Department s recent decision in Matter of Cohn by pointing to the hct that in those cases petitioners ratings were supported by documentation whereas section 4 of Gchlaut s APPR, which lists supporting docurnentation, was lcft blank. Similarly, i n tlic instant proceeding, petitioner s APPR was supported by documentation. However, this court declines to Collow Justice I ,obis in reversing itsclf to the extent that Mattcr of Gchlaut cstablislies the broader holding that thc Handbook, in certain fact specific circumstances, providcs rules that the court can compel the HOE to follow. lliis court nccd not dctcrmiinc whether an APPR must be supported by documentation, as petitioner raiscs only tlic niore narrow issue of whcther such docunientatiori must include obscrvations. Spcaking to that issue, the Haiidbook does not clearly mandate observations of high school teachers, let alone guidance counselors. While this court appreciates the importance of pcdagogical obscrvations, thc 1 fandbook uscs conditionrtl language (i.e. sh~uld ~) rather than mandatory language @e. shall ) throughout in relerence to observations. In addition, the Handbook makes a distinction betwcen schools and between non-supervisory staff, other than classroom teachers, and teachers. The 1landbook recommends a minimum number of required classroom observations for teachers under the jurisdiction of the Community School Districts, the Cliancellor s District, and the Division of Special Education; a minimum number of classroom observations for teachers under the jurisdiction of the high schools; and hrmal 3 [* 5] observalions, where q p o p T i L i / e , for probationary non-supervi sory staff, other than classroom teachers (emphasis added). (Pctitioncr s cxhibit D at 7-8). I ti the instant proceeding, petitioner s unsatisfactory rating was based on thc disciplinary letlers. Petitioner s subslantial rights were not violated by any possiblc deviation from the guidelines laid out in the Handbook. Petitioner was afforded due process through the opportunity to respond in written forni to the disciplinary lctters and an appeal of her unsatisfactory rating. Here, peti tioner tellingly does not dispute the circunistances detailed in the disciplinary lcttcrs which led to her unsatisfactory rating. An overview of pctitioner s written response to the disciplinary lcttcrs indicates that she only offcrcd superficial explanations, shifted the blame to the administration, and at no point took any responsibility for her actions. Accordingly, this court iinds that petitioner s unsatisfactory rating was rational because it was not made in violation of lawfiil procedure or a substantial right. Second, contrary to petitioner s assertion, shc did not acquire tenure by estoppel as a guidancc counselor. Tenure by estoppel rcsults when a school board fails to take the action required by law to grant or deny tcnurc and, with full knowledge and consent, permits a teachcr to continue to teach bcyoiid the cxpiration of the probationary tcrin (internal quotation marks omittcd). Matter of Guuld v. Board o f Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446,451 (1993); see Matter o f Andrcws v Board of Educ. o f the Citv School Dist. of the Citv of N.Y., 92 AIMd 465,2012 NY Slip Op 00845 ( I st Dept 2012). The probationary pcriod shall not exceed two ycars for a pedagogue who has already secured anothcr tcnurcd appointnient. A probationary crnployce niay be termiiiatcd at any time during her probationary pcriod on the recommendation of thc superintendent by a majority vote of tlic HOE. A probationary employee who will not be recommended for tenure shall be so notified in writing by the superintendent no later than sixty days immediately preceding the expiration of licr probationary period. & Education Law $8 2509 (1) (a), 2573 ( I ) (a), 3012 (1) (a), and 3014 (1). While petitioner alleges that shc actually began working as a guidance counselor on or around July 8, 2010, there is no evidcncc or even an aflidavit by pctitioner to support that assertion. The parties do not disputc that petitioner was appointed as a probationary guidancc counselor on January 3, 201 I , rcceived notice in writing from thc superintendent that shc would not bc recommended lor tenure on Juiic 20,201 2, was duly terminated on July 27,2012, received notice of her termination on September 4,20 12, and had hcr termination r e a f h n e d after a hearing on November 5,2012. Petitioner was notificd approximately six months in advance of the date her probationary period would have expired that she would not be recommended for tenure as a guidnncc counselor. Petitioner fell several nionths short of compleling her Iwo year probationary pcrjod even when ihis court views the circumstances leading to her termination in the most favorablc light. b inally, the discontinuance of petitioner s probationary service as a guidancc counselor was not in bad faith. A probationary teachcr does not have a property riglit in his or her position. Kahn v. New York Citv 13ept. of Educ., 18 NY3d 457,522-523,2012 NY Slip Op 01098 (1st Dept 2010). The B0E has the right to terminate the employment o f a probationary tcachcr at any time and lor any reason, unless the teacher establishes that the termination was [or 4 [* 6] a constitutionally impermissible purpose, violative of a statute, or done in bad faith. Mattcr of Frasier v. Roard of Educ. of City School Dist. of City of NY, 71 NY2d 763,765 (1988). Moreover, thc burden o f raising and proving such bad faith is on the cmployee and the mere assertion of bad Faith without the prescntation of evidencc demonstrating it does not satisfy the employee s burden (internal quotation marks omitted). Mattcr of Witherspoon v. Horn, 19 AD3d 250,251,2005 NY Slip Op OS381 (1st Dept 2005). A determination terminating petitioncr s probationary cniployment will bc sustained whcre petitioiicr fails to establisli that the termination was done in bad faith. Matter of Leo v. New York City Dept. of Ecluc., 100 AD3d 536,2012 NY Slip Op 07888 (1st Dcpt 2012). While the fact that pctitioner was given the disciplinary lctters on the same day that shc mct with thc principal raises a concern of bad faith, she was aware of the circumstances giving rise to the disciplinary lctters long before thcy were fornially laid out in the disciplinary letters. Petitioner received an official parental cornplaint and nuiiieroiis emails notifying her of the various issues which prccipitated her termination. In tlic instant proceeding, petitioner does not disputc that her performance as a probationary guidancc counselor was unsatisfactory, rather h a t her discontinuance was procedurally dcfcctive. This court h d s that petitioner has not satisfied her burden orproving that she was tcrminated in bad faith. As a sidc note, parties must be careful not to confusc the distinct standards applicablc to challenging an APPR rating vcrsus that for challenging a tcrinination of probationary employnient. Thc former is an arbitrary and capricious standard while the lattcr is a bad faith standard. Thercforc, respondents cross-motion to dismiss for failure lo state a cause of action is properly grantcd where the record evidence establ islies that thc administrative decision to uphold petitioncr s unsatisfactory rcview was not arbitrary or capricious and the discontinuancc of petitioner s probationary employment was not in bad faith. The partics remaining contcntions are witliout merit. Accordingly, it is hereby, ADJUDGED that the petition is denied and tht: proceeding is dismissed, with costs and di sbursements to rcspondcnts. Dated: May 15, 2013 ENTER: UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be sewed based hereon. To obtain entry, counsel or authorized representative must appear in prson at the Judgment Clerk s Desk (Room 141B). 5

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