Matter of Mastronardi v City of New York

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Matter of Mastronardi v City of New York 2013 NY Slip Op 31750(U) August 1, 2013 Supreme Court, New York County Docket Number: 100557/13 Judge: Cynthia S. Kern 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] SCANNED ON 81212013 SUPREME COURT OF THE STATE OF NEW YORK ORK COUNTY Index Number: 100557/2013 MASTRONARDI, MARIE PART vs CITY OF NEW YORK INDEX NO. Sequence Number : 001 MOTION DATE ARTICLE 78 MOTION SEQ.NO. The following papers, numbered 1 to , were read on this motion to/for Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IW s ) . IN W . IW s ) . - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is is decided in accordance with the annexed decision. ILED t I i -. .... AU6 02 2013 j NEW YORK COUNTY CLERK'S OFFICE ., # Dated: ..................................................................... CASE DISPOSED 0DENIED CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER I CHECK ONE: . 2. 3. 0DO NOT POST J.S.C. NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 In the Matter of the Application of MARIE MASTRONARDI, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 100557/13 DECISION/ORDER -againstCITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, DENNIS Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for Papers Notice of Motion and Affidavits Annexed.................................... Notice of Cross Motion and Answering Affidavits ....................... Replying Affidavits.. .................................................................... Exhibits...................................................................................... Numbered 1 2 3 4 Petitioner Marie Mastronardi brings the instant petition pursuant to Article 78 of the Civil Practice Law and Rules ( CPLR ) challenging respondent the New York City Department of Education s (the DOE ) determination sustaining her Unsatisfactory end-of-year rating (, Urating ) for the 201 1-2012 school year as a middle school English and special education teacher and seeks a reversal of that rating to Satisfactory. For the reasons set forth below, the petition is denied. The relevant facts are as follows. Petitioner is currently employed by the DOE as a teacher [* 3] I of English and Language Arts at Jonas Bronck Academy ( JBA ), M.S. 228 in the Bronx, New York and was in such employ during the 20 1 1-2012 school year. On or about September 19,2011, Principal Donalda Chumney ( Principal Chumney ) conducted an informal, walk-through visit of a morning advisory group that petitioner was supervising. During her visit, Principal Chumney observed that petitioner had tasked the eighth-grade students she was advising with coloring and decorating a graphic logo but were not otherwise engaged. Principal Chumney provided petitioner with comments and recommendations for a more academically-focused advisory group. On or about November 15,2011, Principal Chumney e-mailed petitioner to document her concerns with a vocabulary quiz that petitioner had left to be administered to her students on November 10,201 1. In the letter, Principal Chumney stated that the quiz contained numerous grammatical errors which were confusing to both the students and the faculty. Principal Chumney further remarked that the language used in the quiz was abusive and not acceptable. Petitioner was directed to reply to Principal Chumney s e-mail outlining her plan to respond to her concerns and to submit her next vocabulary quiz for review. On or about December 7,20 1 1, Principal Chumney and Assistant Principal Giselle ForticheOcampo ( AP Fortiche-Ocampo ) formally observed petitioner s classroom instruction. The administrators reported that during the observation, petitioner was unable to execute her lesson according to plans she previously submitted and that there was a disparity between petitioner s lesson objectives as she described them and the lesson as finally presented to the students. Additionally, Principal Chumney and AP Fortiche-Ocampo noted that petitioner failed to address individual students level of performance, skill and needs during the lesson and that petitioner failed to collect student homework that had been assigned the previous day and only did so after being reminded by one of her students. In light of their observations, the administrators rated petitioner s 2 [* 4] 5 3 lesson Unsatisfactory and reported that they met with petitioner in a post-observation conference on December 8,201 1 to discuss the observations and written recommendations for improvement. On April 19 and 20,20 12, AP Fortiche-Ocampo conducted a formal observation and examination of petitioner s student instructional portfolios and noted that they failed to meet expectations in nearly every category. AP Fortiche-Ocampo noted that she did not see evidence of petitioner s students playing an active role in the compilation, management and organization of their portfolios as required. Additionally, any feedback given to the students in their portfolios was primarily numeric with few instances of written recommendations and commendations as required by school policy. AP Fortiche-Ocampo followed up on her previous observation of petitioner s students portfolios by conducting a formal observation on May 14,2012. AP Fortiche-Ocampo noted that the portfolios still failed to meet expectations in three categories despite the feedback and recommendations that had been articulated in her earlier memorandum as there was still no indication that students have any role in the compilation, management and organization of their own work. Thus, AP Fortiche-Ocampo rated her formal observation of petitioner s classroom management as Unsatisfactory in light of her findings that petitioner failed to implement the recommendations and feedback from the previous formal observation. On or about May 1 1,2012, Principal Chumney sent a letter to petitioner documenting an act of professional misconduct that occurred on April 2,2012 when petitioner sent an e-mail to fourteen teachers and administrators at 9:20 pm advising its recipients that thirty-six of her seventy-two students would be re-taking an assessment test in lieu of their regularly scheduled advisory at 8:25 am during the following two mornings. At no time prior to sending the e-mail did petitioner confer with AP Fortiche-Ocampo who lead her team or any other administrator to obtain permission to change the schedule of a sizeable portion of JBA s eighth grade students the next morning. 3 [* 5] Principal Chumney reported that such behavior reflected poorly on petitioner s classroom management that she found herself in a situation where 50% of all of the students [she is] assigned to teach, must be offered the opportunity to retake a 45-minute-long reading assessment that they should have been able to perform, with integrity, in the English Language Arts class that [petitioner is] responsible [for] plan[ning], manag[ing], and instruct[ing]. On or about June 12,2012, AP Fortiche-Ocampo met with petitioner to discuss the fourth marking period grades that petitioner had submitted for her students on June 8,2012 as she was worried that twelve of the seventy-two students petitioner was assigned to teach had received grade point averages below the lowest passing mark and were in danger of not being promoted beyond eighth grade. AP Fortiche-Ocampo accessed petitioner s records at Skedula.com, the JBA s mandatory online grading system, and observed that the grade records for each of petitioner s students demonstrated, on average, eight to ten ungraded items, marked with a - in the online grading records. Petitioner responded that those markings indicate work that had not been submitted by the student but that she would update her records in the online grading system with a score of 50 in its place. However, when AP Fortiche-Ocampo revisited petitioner s online grading records, she observed many inconsistencies, notably that some students had been assigned a score of 100 for work that had previously been marked LL-, while others received a score of 50. When questioned about these inconsistencies, petitioner replied that she had awarded scores of 1 00 for initially missing work that had been subsequently turned in but that she was unable to verify that such work had actually been turned in because she had returned the work to the students that morning. In light of their concerns, AP Fortiche-Ocampo and Principal Chumney conducted an investigation into the accuracy of the grades petitioner had submitted for the fourth marking period, 4 [* 6] \ , I which included a review of (1) the final grades petitioner submitted to the main office on June 8, 2012; (2) the students individual grade reports as documented on the online grading system, accessed on June 1 1,2012 at 12:OO pm; (3) the students individual grade reports as documented on the online grading system, accessed on June 11,2012 at 2:30 pm; (4) individual grade reports for specific students; and (5) student work that had been returned to those students. At the conclusion of the investigation, the administrators found that petitioner had misrepresented the truth in her answers to questions regarding her grading practices. Comparing the student work that petitioner had advised she had returned to those students, AP Fortiche-Ocampo was unable to verify that those assignments represented the pieces of missing work for which those students had received marks of 1 00. Accordingly, AP Fortiche-Ocampo concluded that petitioner failed to score student work that [had been] turned in to [her], failed to record student assignment scores accurately and fiuther failed to submit accurate grades for the 72 students [she had been] assigned to teach [that] school year. At the end of the 20 11-2012 school year, in light of the performance problems that she had observed, Principal Chumney rated petitioner s performance as overall Unsatisfactory and rated petitioner Unsatisfactory in all categories assessed. Petitioner then appealed her U-rating to the DOE SOffice of Appeals and Reviews (the OAR ). On October 10,20 12, a review was conducted before a Chancellor s Committee to consider petitioner s appeal at which petitioner was represented by her union representative and Principal Chumney and AP Fortiche-Ocampo were present as witnesses. At the conclusion of the review, the Committee recommended that the appeal be denied and the Unsatisfactory rating be sustained, finding that The Rating Officer s documentation is comprehensive and substantial ...The Rating [Olfficer was precise in outlining her observations without making judgment. She identified exactly what she observed and offered specific recommendations for improvement. 5 [* 7] The documentation substantiates that these suggestions were not heeded nor implemented. Consequently, [Principal Chumney] rated [petitioner] Unsatisfactory. By letter dated December 6,201 2, petitioner was advised that her appeal of the 201 1-2012 Urating had been denied and that such rating was sustained as a consequence of [petitioner s] failure to incorporate supervisory suggestions for improvement which negatively impacted her pedagogical performance. Petitioner then commenced the instant Article 78 proceeding seeking to challenge the U-rating for the 20 1 1-2012 school year and a reversal of that rating to Satisfactory. As an initial matter, the City of New York must be dismissed from this case as it is an improper party. It is well-settled that [the DOE] is not a department of the [Clity of New York but rather a separate and distinct entity. Ragsdale v. Board of Education, 282 N.Y.323 (1940), citing Divisich v. Marshall, 281 N.Y.1 70 (1939); see also Perez v. City ofNew York, 41 A.D.3d 378 (1 Dept 2007)(holding that the City and the [DOE] remain separate legal entities. ) As the City of New York did not make the determination petitioner seeks to challenge and is a separate entity from the DOE, it must be dismissed. On review of an Article 78 petition, [tlhe law is well settled that the courts may not overturn the decision of an administrative agency which has a rational basis and was not arbitrary and capricious. Goldstein v Lewis, 90 A.D.2d 748,749 (1 St Dep t 1982). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. PZ v. Board o eZ f Education, 34 N.Y.2d 222,23 1 (1974). In order to challenge a rating issued by the DOE, it is petitioner s burden to show that such rating was in bad faith, for a constitutionally impermissible purpose or in violation of law. Smith v. NYC Dept. ufCurrectiun, 292 A.D.2d 198, 199 (1 Dept 2002). 6 [* 8] In the instant action, the petition must be dismissed as the U-rating assigned to petitioner for the 201 1-2012 school year was not arbitrary and capricious or given without regard to the facts. To the contrary, the reasons for the U-rating are well-documented. Respondent submitted voluminous records in support of the U-rating such as the Unsatisfactory formal observation report, two Unsatisfactory observations of petitioner s classroom management as well as multiple letters documenting petitioner s repeated performance problems and misconduct including falsifying student grades and evaluations. Petitioner s assertion that the U-rating should be annulled because the JBA administrators treated her in a hostile and unfair manner is without merit as all that is required for a determination to withstand Article 78 review is that it have some rational basis. Here, it was entirely rational for respondents to sustain the U-rating petitioner received for her performance during the 20 1 1-2012 school year based on the thorough, well-documented evidence presented before the Committee during the review. Petitioner s assertion that the U-rating must be annulled because the DOE violated its own regulations and procedures when making its determination is also without merit. Specifically, petitioner alleges that she was not observed in her classroom, either formally or informally, after the December 201 1 observation and that she did not receive a C-30management plan from school administration or any timely warning that she was in danger of an overall U-rating as is required by the DOE Chancellor s regulations in Chief Executive Memorandum No. 80 ( Memo No. SO ). In response, respondents point to the fact that petitioner s classroom management w s formally a observed in an evaluation of her student portfolios on April 19 and 20,20 12 and on May 14,2012 and that petitioner was aware of her Unsatisfactory ratings after each observation and meeting. Additionally, even if petitioner can point to certain policies in Memo No. 80 that were not strictly adhered to, courts have routinely rejected imperfect technical compliance with an internal policy as 7 [* 9] a basis to find bad faith, provided respondents still satisfy the policy s purpose. See Kolmel v. City o New York,88 A.D.3d 527 (lstDept 201 1); see also Matter o Davids v. City o New York,72 f f f A.D.3d 557 (1 Dept 201 O)(finding that although respondent technically failed to follow the procedures for conducting and preparing petitioner s performance evaluations, such failure did not evince bad faith as the purpose of the policy respondent was attempted to enforce was still satisfied.) The purpose of Memo No. 80 was to ( 1) encourage ongoing professional growth, and (2) take into account various levels of experience and/or expertise that teachers bring to their classrooms. Where appropriate, the performance review must include clear and specific recommendations for professional growth. KoZmel v. City ofNew York,2010 NY Slip Op 3 1350 at *14 (Sup. Ct. N.Y. Cty. 2010), citing Memo. No. 80, p. 2, rev d. 88 A.D.3d 527 (lstDept 201 1). Here, Principal Chumney and AP Fortiche-Ocampo formally observed petitioner numerous times, met with her to provide suggestions and instruction and followed up with her to monitor any progress she made. Petitioner was provided with highly detailed written feedback, clearly delineating areas that needed improvement and recommendations for how those areas could be improved. The record before the Committee clearly suggested that petitioner was provided with opportunities to remedy observed deficiencies, as recommended by Memo No. 80. Therefore, any failure to adhere to Memo No. 80 does not establish bad faith as the policies underlying Memo No. 80 were still satisfied. Accordingly, petitioner s request for relief under Article 78 of the CPLR is denied. The petition is hereby dismissed in its entirety. This constitutes the decision and order of the court. Enter: Dated: J.S.C. FILED AUG 02 2013 NEWYORK 8 COUNTY CLERK S OFFICE

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