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Saturday, September 1, 2012

Probationary Teachers and Getting Their Jobs Back: Matter of Brown, Hazeltine

A more recent case than that of Golomb, however Aisha Brown was not successful at overturning her discontinuance either. Perhaps someone out there might want to read the decision and opinion of NYS Supreme Court Judge Alexander Hunter, who in my opinion has no time for tenured teachers.

Brown v City of New York
2012 NY Slip Op 31472(U)
June 1, 2012
Sup Ct, New York County
Docket Number: 114039/11
Judge: Alexander W. Hunter Jr

Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts ( for
any additional information on this case.
This opinion is uncorrected and not selected for official

But then there was the case of Chris Hazeltine, who won his Article 78:

NOVEMBER 29, 2011
Gonzalez, P.J., Sweeny, Moskowitz, Acosta, Manzanet-Daniels, JJ.
4915 In re Christopher Hazeltine, Index 115412/09
City of New York, et al.,
Glass Krakower LLP, New York (Bryan D. Glass of counsel), for
Michael A. Cardozo, Corporation Counsel, New York (Susan B.
Eisner of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York
County (Michael D. Stallman, J.), entered March 2, 2010, which
granted respondents’ cross motion to dismiss the petition
seeking, inter alia, to annul respondents’ determination
terminating petitioner’s probationary employment and the
underlying 2006-07 “unsatisfactory” rating (U-rating) and to
direct respondents to reinstate him to his former teaching
position with back pay, and dismissed the proceeding brought
pursuant to CPLR article 78, unanimously modified, on the law, to
the extent of granting the petition with respect to petitioner’s
2006-07 U-rating, and otherwise affirmed, without costs.

Petitioner’s probationary employment was terminated based on
an “unsatisfactory” rating on his year-end performance review of
his third year of probationary teaching.  To the extent that
petitioner challenges the termination, this claim is time-barred.

A petition to challenge the termination of probationary
employment must be brought within four months of the effective
date of termination.  Further, the time to commence a proceeding
challenging the termination of probationary employment is not
extended by the petitioner’s pursuit of administrative remedies
(see CPLR 217[1]; Matter of Frasier v Board of Educ. of City
School Dist. of City of N.Y., 71 NY2d 763, 767 [1988]; Matter of
Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv
denied 14 NY3d 704 [2010]).  Here, the effective date of
petitioner’s termination was August 24, 2007, the date his name
was placed on the invalid/inquiry list, and his petition was not
filed until November 2, 2009, more than two years after his

However, and as conceded by respondents, the petition is not
time-barred to the extent that it seeks review of petitioner’s U-rating.  
 The determination that petitioner’s teaching performance
was unsatisfactory did not become final and binding until the
Chancellor denied his appeal sustaining the rating (see Matter of
Johnson v Board of Educ. of City of N.Y., 291 AD2d 450 [2002]).

We hold that the determination of the Chancellor that
petitioner merited a U-rating, based on two incidents taking
place in March and May 2007, lacked a rational basis and was
arbitrary and capricious.  During the March 2007 incident,
petitioner allegedly verbally berated a student and pulled her
chair while she was seated in it. 

 However, the school’s parent advocate, who witnessed the incident, 
testified at the hearing that the student was pushing her chair towards the 
door when petitioner asked her to leave the classroom.  When the student
reached the doorway, it appeared that she would tip over the door
saddle, whereupon petitioner grabbed the chair.  The parent
advocate further described the student and her mother as
“confrontational.”  The parent advocate testified that the
principal never asked her account of what transpired.  The
The U-rating was also allegedly based on a classroom
observation made on June 14, 2007.  However, petitioner denies
that any such evaluation took place and no documentation of the
evaluation was produced at the administrative hearing or in the
article 78 proceeding, and none appears in the record.  The only
observation report in the record is a satisfactory rating, dated
February 8, 2007, by the assistant principal, who testified on
petitioner’s behalf at the hearing.

The principal also refused to hear the accounts of other students
concerning the incident, contrary to the Chancellor’s regulations
and school procedure, which require interviews with and written
statements from all victims and witnesses as soon as practicable.
Despite petitioner’s concerns about this particular student, the
principal nonetheless asked, on a subsequent occasion, that
petitioner “cover” a class which included the student.  The
assistant principal, who witnessed the conversation between
petitioner and the principal, testified that the principal
refused to remove the student from the classroom, despite
petitioner’s concerns that she might make other accusations
against him.  The principal told the assistant principal that
“[h]e had nothing to worry about.”

The procedural irregularities in this case are troublesome.
The signed but undated report of investigation does not appear to
have been sent to the Office of Special Investigation until May
20, 2007, nearly two months after the incident.  Lines where the
preparer was to indicate the date the Office of Appeal and Review
was contacted, the termination date and the date the report was
prepared were left blank.

During the May 2007 incident, petitioner was allegedly
unable to control a class that he escorted to the cafeteria.
4However, the assistant principal, who shared lunchroom duties
with petitioner that day and was his direct supervisor, testified
that she too could not control the students at the time of the
incident and that she specifically directed petitioner to seek
assistance from the principal for the safety of the children.
She described petitioner as “very effective” in his role as
lunchroom monitor.  Since the determination that petitioner’s
performance merited a U-rating lacked a rational basis, we hereby
grant the petition to the extent it seeks to annul that


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