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

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[*1] Matter of Possner v New York City Dept. of Educ. 2016 NY Slip Op 51401(U) Decided on September 1, 2016 Supreme Court, New York County Freed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2016
Supreme Court, New York County

Application of David Possner, Petitioner, For a Judgment Pursuant to CPLR Article 78


New York City Department of Education, Respondent.


Roger Bennet Adler, Esq.

Attorney for Petitioner

233 Broadway, Suite 1800

New York, NY 10279

(212) 406-0181

Assistant Corporation Counsel Brian Polivy, Esq.

Office of the Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

(212) 356-1000
Kathryn E. Freed, J.







In this Article 78 proceeding, petitioner David Possner seeks a judgment annulling the unsatisfactory performance rating that he received for the 2014-2015 school year from his employer, the New York City Department of Education (DOE).[FN1] The DOE answers and opposes the petition.


Since 2006, petitioner has been working for the DOE as an Assistant Principal at Virgil Grissom Junior High School (JHS 226) in Queens, New York. According to the DOE, for the 2009-2010, 2010-2011 and 2011-2012 school years, JHS 226 did not demonstrate yearly progress in mathematics. As it was found to be in need of improvement, JHS 226 was identified as a "focus school" by the New York State Education Department.

During the 2014-2015 school year, petitioner was assigned to the math and science departments of the school. Petitioner's specific assignments included the following: "The Visionaries Academy for Science and Technology, Math, Science, Math Intervention, 3rd Floor Supervision, Observations, Frequent Cycles of Observations, Graduation, Senior Activities, COSA, Town Hall Academy Assemblies, Yearbook, OSHA, Blood borne pathogens, Chemical Inventory, Staff Development, Book Inventory, Bulletin Boards, Immunization, Trips, Liaison, Busing/Transportation Coordinator, A-501 Promotion, Recycling Coordinator, Data Management, Compliance Deadlines, Coverages, Technology."

Petitioner's exhibit A at 1.

Assistant principals are evaluated based on four goals that they identify, in conjunction with principal Rushell White (White), at the beginning of the school year. White states that, in evaluating these assistant principals, she considers "whether there have been letters documenting issues including poor performance and/or insubordination." White aff, ¶ 4. At the start of the 2014-2015 school year, petitioner and White set four goals for petitioner to achieve by the end of the year.

In Goal A, improving instructional and school programs, in pertinent part, petitioner stated that his expectations are for the students to make an "overall performance increase on the New York State Mathematics Assessment by 3 to 5%, and to capitalize on the 3% gains we made in mathematics from the previous school year according to the data results from NYSED. We are at 16% for our level 3 and level 4s." Petitioner's exhibit A at 1. In Goal B, achieving effectiveness in administration functioning, 40% of the ineffective and developing science and math teachers would "move up 1 HEDI rating." Id.

Goal C, initiating and strengthening activities, included completing observational data and using the "feedback to provide appropriate professional development to teachers in need of development in Danielson's 8 competencies." Id. In Goal D, improving relationships with staff, students, parents and community, the objectives were that, "85% of our parents and guardians agree, or strongly agree that the school communicates how to prepare their children for being career and college ready, according to the school environment survey. By June 2015, I expect that number to be 88 to 90%." Id. at 2.

Petitioner states that he was also responsible for creating all of the PowerPoint presentations for the school video screens and posters for the school hallways.

On February 9, 2015, petitioner received a letter to file summarizing his mid-year evaluation. The letter advised petitioner that he had not been meeting his Goal A, as the "information supplied is inaccurate." DOE's exhibit 2 at 1. The letter continued that petitioner, for his next step, should "[a]nalyze the data to get true numbers[,] devise an action plan that you will implement to help attain your goal for A." Id. The letter continued that petitioner had not been meeting Goal B and instructed him to provide professional learning opportunities for the teachers.

The mid-year evaluation further informed petitioner that he had been meeting the standards for Goal C. For Goal D, the letter states that petitioner had not been meeting the standard. Goal D was reiterated as "increas[ing] parent response to Learning Environmental Survey questions that school communicated with children." Id. at 2. It further stated that the goal "is not being monitored." Id. Petitioner was told that he should "review and monitor [*2]attendance and PTA meetings to determine whether they are receiving communication from the school. Assistant principal will create a survey and survey parents." Id.

The letter concluded by stating the following:

"Please ensure that you monitor the progress of your goals. It is imperative that you implement next steps and modify action plans to meet and exceed your goals. Please note that not meeting standards in any goal may lead to an unsatisfactory rating at the end of the school year and or [sic] charges leading to the termination of your services."


On June 26, 2015, Petitioner received a U rating for his performance during the 2014-2015 school year. Prior to this year, petitioner states that he received eight satisfactory ratings. The U rating advises petitioner that he failed to provide evidence that he met "several" of his goals. Specifically, although petitioner had now met expectations for Goals B and C, White did not believe that Goals A and D were met. She stated that, for Goal A, "you provided the number of students who met or did not meet promotional criteria, which is different from your goal to increase the number of students earning level 3s and 4s." DOE's exhibit 1 at 2.

With respect to Goal D, White noted that there was a "huge decline" in parent attendance at PTA meetings, which "was one of your goals." White stated that petitioner did not provide any evidence that he developed an action plan to address this decline. White continued that petitioner had not met Goal D "which is dependent on Learning Environment Surveys . . . you did not implement my recommendation." Id.

In addition, the U rating stated that petitioner had missed deadlines and that he did not provide leadership or monitor the staff and students under his domain. White continued that she would be closely monitoring petitioner the following year to gauge his progress.

Several letters were attached to the U rating, including letters reporting missed deadlines. For instance, on December 9, 2014, petitioner received a notice that he still owed outstanding observation reports and other assessments. There was one "walk-through" conducted on January 21, 2015, where the teachers in petitioner's academy were assessed by White. The walk-through noted some issues with the teachers and White indicated that she would return to do another assessment in two weeks.

Petitioner appealed this U rating to the DOE's Office of Appeals and Review (OAR) and his appeal was heard before a designated hearing officer on October 1, 2015.

Petitioner's Testimony

Petitioner advised the hearing officer that he received his U rating on the last day of school and the hearing officer agreed that the rating was not given within the required time period.

Petitioner believed that the U rating was pretextual, and noted that "95% of those things that I do every day, they're never recognized. The 5% that I don't do are, and those things were put in the letter." Petitioner's exhibit B at 15. He further claimed that White would criticize him for litter on the floor or a torn bulletin board while he was moving 450 students from class to class, rather than assist him.

Petitioner refuted the contentions of unsatisfactory performance. With respect to Goal A, for example, he stated that, while citywide, math scores went up by only 1%, his students' test scores reflected a score increase of 2%. He acknowledged that, even though he did fall short in Goal A, he was above the citywide average. With respect to Goal D, petitioner testified that he maintained the school website, which listed the dates and times of PTA meetings and that he set up the phone messages notifying parents of events. Counsel further noted that improving parent attendance at the PTA meetings was not specified as one of the categories in Goal D.

Petitioner's counsel noted that White is required to provide a minimum of two follow-up conferences, including the initial goal setting conference, but there is no record that petitioner received two conferences. During the hearing it was noted that, during her walk-through, White observed four teachers in 30 minutes. And, although White wrote that she would return in two [*3]weeks, this did not occur. In addition, the end-of-the-year review should have included some of petitioner's strongest assets, of which none were noted.

White's Testimony:

During the hearing, White testified that she did not originally intend for the letters regarding missed deadlines to be a part of the file, as she wanted to give the assistant principals the opportunity to correct the behavior.

During the hearing, White testified that petitioner had met Goals B and C, but had not met Goals A and D. In reference to Goal D, White testified that petitioner's goal was to have 85% of the parents state that they were satisfied with the level of communication from the school. White responded that petitioner did not provide her with the information on how he would meet Goal D.

White conceded that, with respect to any requests for outstanding documents, petitioner did submit the documents to her. White explained that she still believes that this is considered a dereliction of duties, even though petitioner did comply and it was not a willful refusal to follow through on an assignment.

White concluded by stating that she stands by the U rating. "[Petitioner] contributed in no way to the progress of this school, and therefore, he should be rated unsatisfactorily, he was, and this rating should be sustained." Petitioner's exhibit B at 17.

Pursuant to a letter dated March 15, 2016, petitioner was notified by the Chancellor's designee that the appeal of his U rating was denied and "the said rating is sustained as a consequence of poor performance." DOE's exhibit 11.

Petitioner then commenced this article 78 proceeding.[FN2]

Petitioner argues that basing a U rating on Goal A, which was improving standardized math test scores, is arbitrary and capricious. First, the results of the scores were not known until six weeks after White gave the U rating, so it would be impossible for White to find out whether petitioner had or had not been meeting his goals for improving test scores. Second, according to petitioner, in December 2015, the State Board of Regents adopted a four-year moratorium barring the use of common core test results in teachers' performance ratings. Petitioner's exhibit I. Petitioner claims that his U rating, "which penalized him for Common Core test results, is contrary to the Regents' ban, and violates Petitioner's rights." Adler amended affirmation, ¶ 15.Petitioner contends that his U rating was arbitrary, as White "cherry picked" a number of criteria to form her opinion and that petitioner's performance of multiple daily tasks was not mentioned in the evaluation. Moreover, according to petitioner, performance reviews should list both positive and negative assets. White's evaluation contained no positive feedback, leading petitioner to believe that it was pretextual and subjective. Petitioner claims that he had received eight satisfactory ratings prior to this U rating and that he should have also received a satisfactory rating for 2014-2015.

Petitioner further argues that the U rating should be annulled because there were procedural deficiencies with the rating process. For example, contrary to the rules set forth in petitioner's handbook, petitioner was given the U rating on the last day of the school year. In addition, the letters to file, allegedly demonstrating petitioner's failure to comply with deadlines, did not meet the criteria for letters to file. As a result, according to petitioner, these letters should not have been included in his personnel file or been provided at the hearing.

Petitioner alleges that, between the mid-year review and the final U rating, he was not informed of any continued deficiencies or provided with any appropriate professional [*4]development to remedy these deficiencies. According to petitioner, White did not provide him with any negative or positive feedback during this time.

The DOE does not address many of petitioner's contentions.[FN3] In support of its answer, the DOE provides an affidavit from White. White states that, "[i]n addition to not meeting two of his four goals, Petitioner failed to meet several key deadlines that he was responsible for, was at times insubordinate, had to constantly be reminded to perform job duties, and in general repeatedly performed tasks hastily and displayed an apathetic attitude as to whether my directives were carried out." White aff, ¶ 16.

White then provides examples of petitioner's deficiencies, including, among others, failing to properly monitor hallways between class periods and ensure that they were clean and failing to make sure bulletin boards had student work posted. She states, "[w]hile I only drafted a few disciplinary letters, I kept copious contemporaneous notes on which this affidavit is based." Id.

White further claims that she met with petitioner 18 times and, during these meetings, provided him with professional development.

The DOE alleges that, in sum, petitioner met Goals B and C, but failed to meet Goals A and D. In addition, petitioner repeatedly failed to meet deadlines and follow through on directives.

The DOE contends that the petition fails to state a cause of action because petitioner "concedes that he failed to follow directives and meet deadlines, but purports that they were unreasonable." DOE's memo of law at 1. For instance, the DOE argues that, even assuming Goal A was impossible to meet because it was based on test scores that came out after the evaluation period was over, it was petitioner who created that goal at the beginning of the year. Therefore, according to the DOE, "if petitioner created a goal which was incapable of being completed, such failure is self-inflicted." Id. at 5.


Consistent with judicial reviews of administrative agency determinations, judicial review of the U rating questions whether the U rating was "arbitrary and capricious or made in bad faith." Matter of Gutman v City of New York, 134 AD3d 547, 547 (1st Dept 2015); see also Matter of Rieser v New York City Dept. of Educ., 133 AD3d 465, 466 (1st Dept 2015) (Petitioner failed to show his U rating was arbitrary and capricious); 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). Once a court finds a rational basis for the agency's determination, its review ends. Matter of Hughes v Doherty, 5 NY3d 100, 107 (2005).

According to the DOE, the U rating is rational because petitioner failed to meet two of his four goals, he failed to complete tasks in a timely manner and he had other documented failures. In Goal A, improving test performance, petitioner was rated as not meeting the standard, even though the test results were not available until after the rating was given. The DOE blames petitioner for setting goals that could not be attained during the year. Nonetheless, the court finds that there is no rational basis for White to issue a U rating based on data that was not yet available.

Goal D, as explained in the facts, related to communications between parents and the school. Petitioner claims that he was supposed to increase communication with the parents and also monitor attendance at the PTA meetings. The parties disagree on petitioner's responsibilities with respect to Goal D and creating an actual survey for the parents. In any event, petitioner was faulted in his end-of-the-year evaluation for the decline in attendance at PTA meetings.

As parental compliance in attending PTA meetings was outside the scope of petitioner's goals, it was not rational for White to include this in the evaluation. Moreover, it is unreasonable to fault petitioner for something that is out of his control.

In addition to not meeting two of his goals, the DOE maintains that petitioner's U rating is supported by documented failures. White states that, for example, petitioner did not ensure that the hallways were properly monitored between class periods. White claims that, although she did not draft any disciplinary letters, she took copious notes, on which she based her affidavit. These incidents, as well as the others provided, are not a part of the record in support of the U rating that was presented to petitioner or the hearing officer. It is well settled that "[j]udicial review of administrative determinations is confined to the facts and record adduced before the agency [internal quotation marks and citation omitted]." Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110 (2005). As a result, the court will not consider any allegations by White or the DOE that were not a part of the U rating and record in front of the OAR hearing officer.

As set forth below, inconsistencies in the way petitioner was rated also contribute to the arbitrariness and capriciousness of the rating. At the beginning of the school year, during performance planning, petitioner created four goals to achieve during the year. During the mid-year review, these goals were addressed in relation to petitioner's performance and possible U rating with respect to not meeting these goals. However, at the end of the year, in support of the U rating, among other things, White presented four letters regarding missed deadlines or not following directives. Then, during the hearing, she added an additional criterion that, as petitioner in no way contributed to the progress of the school, he should be rated unsatisfactorily. Finally, in support of the answer, the DOE attempts to justify the U rating based on events not in the record. See e.g. Matter of Beriguete v New York Dept. of Educ., 2016 WL 3963259, *6-*7, 2016 NY Misc LEXIS 2708, *20-21, 2016 NY Slip Op 26229 (Sup Ct, NY County 2016) ("All told, [White's] conduct brings into question the objectivity of [her] ratings and evaluations of petitioner and whether [she] attempted in good faith to put petitioner on notice of his deficiencies and give him a chance to address them").

"It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion [internal quotation marks and citations omitted]." Matter of Arrocha v Board of Educ. of City of NY, 93 NY2d 361, 363 (1999). Applying the law to the facts of this case, as explained above, the DOE's decision to sustain a U rating based on the record as presented lacks a rational basis and should be annulled.

Although the U rating can be annulled for lacking a rational basis, there are actually additional procedural deficiencies, as explained below. Petitioner claims that he was not provided with any positive or negative feedback between his mid-year and final evaluation. White testified that she gave petitioner regular feedback during meetings throughout the school year. The DOE argues that these alleged meetings provided petitioner with strategies on how to improve his performance, yet petitioner did not implement these strategies.

The record does not support the DOE's contentions. There is no indication that petitioner received formal meetings with White, professional development to address deficiencies, or that she provided written evaluations discussing petitioner's performance. For instance, although petitioner was advised that White would be returning in two weeks from the date of her walk- through to complete another assessment, there is no indication that this was ever done or that he received professional support.

Accordingly, the U rating can also be annulled on the basis that petitioner was not aware that he was in danger of receiving a U rating and that he was not given adequate professional development. As in Matter of Taylor v City of New York (139 AD3d 430, 433 [1st Dept 2016]), "[t]he record demonstrates deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-rating) for the [2014-2015] school year that were not merely technical but undermined the integrity and fairness of the process." The Court in Matter of Taylor found that the U rating should be annulled because there was a lack of remediation after February and a long delay in providing feedback. The Court held, among other things, that the petitioner was "not given an opportunity to remedy the alleged defects and implement the multiple recommendations." Id. at 434; see also Matter of Murray v Board of Educ. of the City Sch. Dist. of the City of NY, 131 AD3d 861, 865 (1st Dept 2015) (U rating annulled when, among other things, there was "no evidence that petitioner was notified before the end of the school year in June 2011 that her work was considered unsatisfactory").

Petitioner alleges that the letters regarding missed deadlines were incorrectly placed in his file, contrary to DOE policy. In addition, petitioner received the U rating outside the time-frame provided in his handbook. A procedural deficiency is not trivial and may render a U rating arbitrary and capricious. Despite this, the DOE fails to address these claimed irregularities. See e.g. Matter of Applewhite v Board of Educ. of the City Sch. Dist. of the City of NY, 115 AD3d 427, 427 (1st Dept 2014) (Court annulled a U rating when respondents violated their own rules, procedures and guidelines by placing certain disciplinary letters in petitioner's file).


Accordingly, it is hereby

ORDERED and ADJUDGED that the petition is granted and David Possner's 2014-2015 end-of-year U rating is vacated and annulled; and it is further

ORDERED that the matter is remitted to the New York City Department of Education for further proceedings not inconsistent with this decision.

Dated: September 1, 2016



KATHRYN E. FREED, J.S.C. Footnotes

Footnote 1: Formally, the Board of Education of the City School District of the City of New York.

Footnote 2: Petitioner originally filed this article 78 after the appeal hearing had been held, but prior to the outcome. The DOE cross-moved to dismiss, based on failure to exhaust administrative remedies. After the outcome of the administrative appeal, the parties stipulated that petitioner had exhausted his administrative remedies and he then filed an amended petition, which is the subject of these proceedings.

Footnote 3: For example, the DOE does not dispute that petitioner received his U rating on June 26, 2015 nor does it address whether or not the letters complied with the criteria set forth in the collective bargaining agreement.

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