Matter of Garvey v Board of Educ. of the City Sch. Dist. of the City of New York
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Matter of Garvey v Board of Educ. of the City Sch. Dist. of the City of New York
2014 NY Slip Op 51702(U)
Decided on December 3, 2014
Supreme Court, New York County
Stallman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on December 3, 2014
Supreme Court, New York County
In the Matter of the Application of Ann Garvey, Petitioner,
against
Board of Education of the City School District of the City of New York; and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents.
101504/2013
Appearances:
For petitioner:
Richard E. Casagrande, Esq.
52 Broadway, 9th Fl
New York, NY 10004
212-533-6300
For respondents:
Zachary Carter, Corporation Counsel of the City of New York
By: Steven A. Sutro, Of Counsel
New York City Law Department
100 Church St, Room 4-313
New York, NY 10007
212-356-2470
Michael D. Stallman, J.
In May 2013, via email, petitioner received an unsatisfactory year-end rating of U from her supervisor, Yvonne Rodriguez (Rodriguez). Included as an attachment to the email was "the U-rating cover sheet and a rating sheet containing 14 rating areas ( competencies')." Verified petition, ¶ 6. The rating areas included attention to detail, availability, professionalism, and teamwork, among others. Each area had the numbers 0-5 listed, with a 5 being the best possible score.
Petitioner received low level ratings in most of the areas on the rating sheet. For instance, in the "Attention to Detail" area, she received a 1. Underneath the circled standard number, there is a generic description of what the 1 means, in this case, "makes frequent errors in transcript evaluations; does not learn from errors." Verified petition, exhibit 1 at 3. There was no other documentation included with the rating sheet. In addition, neither an explanation, nor examples specific to petitioner, were given to describe the reasons for the low ratings in certain categories.
Petitioner maintains that she "did not receive any letters to file or have any conferences with her supervisor about her supposed unsatisfactory performance during the 2012-2013 rating period." Verified petition, ¶ 9. According to petitioner, prior to this rating, she had received only satisfactory ratings.
Pursuant to respondents' bylaws, petitioner appealed her U rating to the Chancellor's Committee (Committee). A hearing was held on June 10, 2013. Rodriguez was the only witness presented by respondents. She testified that petitioner had been working for the certification unit for twelve years. Rodriguez stated, without any explanation, that petitioner's "availability" was "minimum." Verified answer, exhibit c at 5. Rodriguez further testified, in pertinent part:
"I would like to make a final statement. Ms. Garvey's [sic] been working in this capacity for 12 years. A rubric of standards was created. We felt - - or I - - I - - I felt according to that rubric that she was not meeting the standards. And I stand on the record with the U rating."
Id. at 8.
Respondents' alleged supporting documentation was ruled inadmissible for various reasons and was not accepted into the record at the hearing. The transcript indicates that Rodriguez did not provide any examples of how petitioner's performance was unsatisfactory; neither did she explain what she meant by rubric of standards.
The Committee recommended to the Chancellor's designee that the U rating be sustained. Pursuant to a letter dated July 17, 2013, petitioner was informed that the U rating had been affirmed by the Chancellor's designee. The letter stated that petitioner's U rating is "sustained as a consequence of making frequent errors on transcript evaluations and failure to learn from those errors." Verified petition, exhibit 5.
Petitioner then commenced this Article 78 petition, seeking that the court direct respondents to reverse the denial of petitioner's appeal of the U rating. Petitioner argues that the affirmation of the U rating is arbitrary and capricious, as there is no rational basis for it in the record. The letter petitioner received states that the rating was sustained as a result of making frequent errors and the failure to learn from those errors. As mentioned in the petition, Rodriguez did not testify to any frequent errors or to petitioner's failure to learn from those [*3]errors. Furthermore, no documentation was admitted at the hearing which documented any purported propensity for errors.
In addition, petitioner alleges that respondents did not follow their own rules and procedures, such as Special Circular No. 45, when they issued and affirmed the U rating. Verified petition, ¶ 22. Petitioner states, among other things, that respondents' own rules and procedures require that she must be provided "with the requisite supporting documentation and notice of the basis for the U rating at the time that the rating is issued." Verified petition, ¶ 33.
In their answer, respondents refer the court to the U rating cover sheet and rating sheet. Respondents further provide two affidavits, including one from Rodriguez. In her affidavit to the court, Rodriguez, provides, among other things, examples of why she believes petitioner deserved a U rating. The other affidavit, from an executive director in the human resources department, is provided to the court to explain petitioner's job responsibilities and the type of personnel file she would have pursuant to her employee status. Among other information about the petitioner and her alleged unsatisfactory performance, respondents provide a table of petitioner's alleged available working days during the 2012-2013 year. Respondents argue that, in accordance with the evidence presented demonstrating poor performance and limited availability, the decision to uphold the U rating was not arbitrary and capricious.
In opposition, petitioner argues that the information provided in respondents' answer was not a part of the original record before the Committee. She maintains that, as a result, the court may not consider this information. Petitioner contends that the information provided to her and at her appeal hearing would not rationally sustain an unsatisfactory rating. Moreover, respondents allegedly did not follow their own rules and procedures when they did not properly document petitioner's supposed poor performance.
DISCUSSION
I. Petitioner's U Rating:
Judicial review of the U rating is limited to whether it lacked a rational basis or was arbitrary and capricious. See generally Matter of Hazeltine v City of New York, 89 AD3d 613, 614 (1st Dept 2011); Black v New York City Dept. of Educ., 62 AD3d 468 (1st Dept 2009); CPLR 7803 (3). An agency's decision is considered arbitrary if it is "without sound basis in reason and is generally taken without regard to the facts." Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974).Respondents sustained the U rating based on petitioner's alleged propensity for making errors and not being able to learn from her errors. However, the record before the Committee did not contain any supporting evidence for these conclusions. Although petitioner's supervisor provided testimony, she did not provide any relevant details to support petitioner's alleged unsatisfactory performance. No additional documentation was admitted into evidence. Other than the fact that the Chancellor's designee merely paraphrased a generic description from the rating sheet, the record is void of any support for respondents' allegations of unsatisfactory performance. As a result, the court can only conclude that the determination to affirm the U rating was "taken without regard to the facts," and is arbitrary. See e.g. Matter of Friedman v Board of Educ. of the City Sch. Dist. of the City of NY, 109 AD3d 413, 415 (1st Dept 2013) (Court held respondents' determination to sustain an unsatisfactory rating was not rationally based as "there remained no documentation in the record to support the unsatisfactory finding").
In their answer, respondents do attempt to support their rationale for giving petitioner an unsatisfactory rating. Curiously, one of the affidavits attached is from Rodriguez, where she provides alleged examples of petitioner's incompetence. However, if Rodriguez had specific examples to support the rating she gave petitioner, she should have provided them to the Committee, either in testimony or through proper documentation. As the affidavit from Rodriguez, as well as the other new information provided to the court in respondents' answer, was not provided to the Committee, it cannot be considered at this time. It is well settled that, "[c]ritically, we may only consider evidence that was before the administrative agency and we can only review the grounds presented by the agency at the time of its determination." Matter of [*4]Weill v New York City Dept. of Educ., 61 AD3d 407, 408 (1st Dept 2009) (internal citations omitted).
Under the circumstances presented, the U rating was arbitrary and must be be annulled. Although petitioner requests that her U rating be changed to a satisfactory one, the record does not present a legal or factual basis for this Court to do so at this time. As a result of this decision, petitioner's allegations that respondents did not follow their own rules and regulations need not be addressed.
CONCLUSION AND JUDGMENT
Accordingly, it is herebyADJUDGED that the petition is granted to the extent that the 2012-2013 U rating is vacated and annulled.
Dated: December 3, 2014New York, New York
ENTER:
/s/
J.S.C. Footnotes
Footnote 1: Respondents had previously cross-moved to dismiss the petition; however this court denied the motion, and directed respondents to answer.
Decided on December 3, 2014
Supreme Court, New York County
In the Matter of the Application of Ann Garvey, Petitioner,
against
Board of Education of the City School District of the City of New York; and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents.
101504/2013
Appearances:
For petitioner:
Richard E. Casagrande, Esq.
52 Broadway, 9th Fl
New York, NY 10004
212-533-6300
For respondents:
Zachary Carter, Corporation Counsel of the City of New York
By: Steven A. Sutro, Of Counsel
New York City Law Department
100 Church St, Room 4-313
New York, NY 10007
212-356-2470
Michael D. Stallman, J.
In this Article 78 proceeding, petitioner Ann Garvey seeks a judgment declaring that the action of the Board of Education of the City School District of the City of New York, and Dennis M. Walcott, in his official capacity as Chancellor of the City School District of the City of New York (collectively, respondents), giving her an unsatisfactory (U) rating, was arbitrary and capricious, or was made in bad faith and in violation of lawful procedure. Petitioner requests that [*2]her 2012-2013 U rating be reversed and changed to a satisfactory rating. Respondents answer and oppose the petition.[FN1]
BACKGROUND AND FACTUAL ALLEGATIONS
Petitioner is a retired teacher who was previously employed by respondents as a Human Resources Assistant. Her most recent position was located at the certification unit in respondents' human resources department.
In May 2013, via email, petitioner received an unsatisfactory year-end rating of U from her supervisor, Yvonne Rodriguez (Rodriguez). Included as an attachment to the email was "the U-rating cover sheet and a rating sheet containing 14 rating areas ( competencies')." Verified petition, ¶ 6. The rating areas included attention to detail, availability, professionalism, and teamwork, among others. Each area had the numbers 0-5 listed, with a 5 being the best possible score.
Petitioner received low level ratings in most of the areas on the rating sheet. For instance, in the "Attention to Detail" area, she received a 1. Underneath the circled standard number, there is a generic description of what the 1 means, in this case, "makes frequent errors in transcript evaluations; does not learn from errors." Verified petition, exhibit 1 at 3. There was no other documentation included with the rating sheet. In addition, neither an explanation, nor examples specific to petitioner, were given to describe the reasons for the low ratings in certain categories.
Petitioner maintains that she "did not receive any letters to file or have any conferences with her supervisor about her supposed unsatisfactory performance during the 2012-2013 rating period." Verified petition, ¶ 9. According to petitioner, prior to this rating, she had received only satisfactory ratings.
Pursuant to respondents' bylaws, petitioner appealed her U rating to the Chancellor's Committee (Committee). A hearing was held on June 10, 2013. Rodriguez was the only witness presented by respondents. She testified that petitioner had been working for the certification unit for twelve years. Rodriguez stated, without any explanation, that petitioner's "availability" was "minimum." Verified answer, exhibit c at 5. Rodriguez further testified, in pertinent part:
"I would like to make a final statement. Ms. Garvey's [sic] been working in this capacity for 12 years. A rubric of standards was created. We felt - - or I - - I - - I felt according to that rubric that she was not meeting the standards. And I stand on the record with the U rating."
Id. at 8.
Respondents' alleged supporting documentation was ruled inadmissible for various reasons and was not accepted into the record at the hearing. The transcript indicates that Rodriguez did not provide any examples of how petitioner's performance was unsatisfactory; neither did she explain what she meant by rubric of standards.
The Committee recommended to the Chancellor's designee that the U rating be sustained. Pursuant to a letter dated July 17, 2013, petitioner was informed that the U rating had been affirmed by the Chancellor's designee. The letter stated that petitioner's U rating is "sustained as a consequence of making frequent errors on transcript evaluations and failure to learn from those errors." Verified petition, exhibit 5.
Petitioner then commenced this Article 78 petition, seeking that the court direct respondents to reverse the denial of petitioner's appeal of the U rating. Petitioner argues that the affirmation of the U rating is arbitrary and capricious, as there is no rational basis for it in the record. The letter petitioner received states that the rating was sustained as a result of making frequent errors and the failure to learn from those errors. As mentioned in the petition, Rodriguez did not testify to any frequent errors or to petitioner's failure to learn from those [*3]errors. Furthermore, no documentation was admitted at the hearing which documented any purported propensity for errors.
In addition, petitioner alleges that respondents did not follow their own rules and procedures, such as Special Circular No. 45, when they issued and affirmed the U rating. Verified petition, ¶ 22. Petitioner states, among other things, that respondents' own rules and procedures require that she must be provided "with the requisite supporting documentation and notice of the basis for the U rating at the time that the rating is issued." Verified petition, ¶ 33.
In their answer, respondents refer the court to the U rating cover sheet and rating sheet. Respondents further provide two affidavits, including one from Rodriguez. In her affidavit to the court, Rodriguez, provides, among other things, examples of why she believes petitioner deserved a U rating. The other affidavit, from an executive director in the human resources department, is provided to the court to explain petitioner's job responsibilities and the type of personnel file she would have pursuant to her employee status. Among other information about the petitioner and her alleged unsatisfactory performance, respondents provide a table of petitioner's alleged available working days during the 2012-2013 year. Respondents argue that, in accordance with the evidence presented demonstrating poor performance and limited availability, the decision to uphold the U rating was not arbitrary and capricious.
In opposition, petitioner argues that the information provided in respondents' answer was not a part of the original record before the Committee. She maintains that, as a result, the court may not consider this information. Petitioner contends that the information provided to her and at her appeal hearing would not rationally sustain an unsatisfactory rating. Moreover, respondents allegedly did not follow their own rules and procedures when they did not properly document petitioner's supposed poor performance.
DISCUSSION
I. Petitioner's U Rating:
Judicial review of the U rating is limited to whether it lacked a rational basis or was arbitrary and capricious. See generally Matter of Hazeltine v City of New York, 89 AD3d 613, 614 (1st Dept 2011); Black v New York City Dept. of Educ., 62 AD3d 468 (1st Dept 2009); CPLR 7803 (3). An agency's decision is considered arbitrary if it is "without sound basis in reason and is generally taken without regard to the facts." Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974).Respondents sustained the U rating based on petitioner's alleged propensity for making errors and not being able to learn from her errors. However, the record before the Committee did not contain any supporting evidence for these conclusions. Although petitioner's supervisor provided testimony, she did not provide any relevant details to support petitioner's alleged unsatisfactory performance. No additional documentation was admitted into evidence. Other than the fact that the Chancellor's designee merely paraphrased a generic description from the rating sheet, the record is void of any support for respondents' allegations of unsatisfactory performance. As a result, the court can only conclude that the determination to affirm the U rating was "taken without regard to the facts," and is arbitrary. See e.g. Matter of Friedman v Board of Educ. of the City Sch. Dist. of the City of NY, 109 AD3d 413, 415 (1st Dept 2013) (Court held respondents' determination to sustain an unsatisfactory rating was not rationally based as "there remained no documentation in the record to support the unsatisfactory finding").
In their answer, respondents do attempt to support their rationale for giving petitioner an unsatisfactory rating. Curiously, one of the affidavits attached is from Rodriguez, where she provides alleged examples of petitioner's incompetence. However, if Rodriguez had specific examples to support the rating she gave petitioner, she should have provided them to the Committee, either in testimony or through proper documentation. As the affidavit from Rodriguez, as well as the other new information provided to the court in respondents' answer, was not provided to the Committee, it cannot be considered at this time. It is well settled that, "[c]ritically, we may only consider evidence that was before the administrative agency and we can only review the grounds presented by the agency at the time of its determination." Matter of [*4]Weill v New York City Dept. of Educ., 61 AD3d 407, 408 (1st Dept 2009) (internal citations omitted).
Under the circumstances presented, the U rating was arbitrary and must be be annulled. Although petitioner requests that her U rating be changed to a satisfactory one, the record does not present a legal or factual basis for this Court to do so at this time. As a result of this decision, petitioner's allegations that respondents did not follow their own rules and regulations need not be addressed.
CONCLUSION AND JUDGMENT
Accordingly, it is herebyADJUDGED that the petition is granted to the extent that the 2012-2013 U rating is vacated and annulled.
Dated: December 3, 2014New York, New York
ENTER:
/s/
J.S.C. Footnotes
Footnote 1: Respondents had previously cross-moved to dismiss the petition; however this court denied the motion, and directed respondents to answer.
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