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 (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
publication.

LINK 

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

 

SUPREME COURT, APPELLATE DIVISION

FIRST DEPARTMENT

NOVEMBER 29, 2011

THE COURT ANNOUNCES THE FOLLOWING DECISIONS:

Gonzalez, P.J., Sweeny, Moskowitz, Acosta, Manzanet-Daniels, JJ.

4915 In re Christopher Hazeltine, Index 115412/09

Petitioner-Appellant,

-against

City of New York, et al.,

Respondents-Respondents.

_________________________

Glass Krakower LLP, New York (Bryan D. Glass of counsel), for

appellant.

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

termination.

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

determination. 

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED:  NOVEMBER 29, 2011

_______________________

CLERK