Carmen Applewhite Wins Her U-Rating Appeal in the Appellate Division First Department

When the UFT decides to fight a violation of the Collective Bargaining Agreement (CBA), policy or procedure concerning observations and rights, they can and do win.

Great job, Lori!!!

Betsy Combier

Matter of Applewhite v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2014 NY Slip Op 01501

Decided on March 6, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 6, 2014 
Friedman, J.P., Renwick, Freedman, Feinman, JJ.

11191 113474/11 

[*1]In re Carmen Applewhite, Petitioner-Appellant, 

v

Board of Education of the City School District of the City of New York, et al., Respondents-Respondents.

Richard E. Casagrande, New York (Lori M. Smith of counsel), 
for appellant. 
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng 
of counsel), for respondents. 

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered on or about August 10, 2012, which, to the extent appealed from, granted respondents' cross motion to deny the petition to annul petitioner teacher's unsatisfactory annual performance rating (U-rating) for the 2007-2008 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the cross motion denied, the petition granted, and the unsatisfactory rating annulled.

Respondents' determination to sustain petitioner's unsatisfactory performance rating was not rationally based on administrative findings that petitioner acted in an insubordinate manner and refused to adhere to the directives of the principal during the 2007-2008 school year (see 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]). Petitioner established that respondents violated their own rules, procedures and guidelines contained in their human resources handbook "Rating Pedagogical Staff Members" by placing certain disciplinary letters in petitioner's personnel file which neither contained her signature acknowledging receipt of the letters nor a witness' statement attesting to her refusal to sign (see Matter of Kolmel v City of New York, 88 AD3d 527 [1st Dept 2011]; and see Matter of Friedman v Board of Educ. of the City Sch. Dist. of the City of N.Y., 109 AD3d 413 [1st Dept 2013]; compare Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y., 102 AD3d 586, 587 [1st Dept 2013]). We note that neither the principal who made the allegations nor any other witness testified at the hearing.

Under the circumstances presented here, remittitur to Supreme Court for service of an answer is not warranted, as the facts have been fully presented in the parties' papers and no [*2]
factual dispute remains (see Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. Of Nassau County, 63 NY2d 100, 102 [1984]; Matter of Camacho v Kelly, 57 AD3d 297, 298-299 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER 
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 6, 2014

CLERK

In the case below, the U-rating was sustained:

Matter of Cohn v Board of Educ. of the City Sch. Dist. of the City of N.Y.

2013 NY Slip Op 00418 [102 AD3d 586]

January 29, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 27, 2013

In the Matter of Mitchell Cohn, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.

—[*1] Richard E. Casagrande, New York (Ariana A. Gambella of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered October 27, 2011, which denied the petition seeking, inter alia, to annul the determination of respondents denying petitioner's appeal of an unsatisfactory rating (U-rating) for the 2006-2007 school year and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner has failed to show that the U-rating was arbitrary and capricious, or made in bad faith. The detailed observations in reports prepared by the principal and two assistant principals, describing petitioner's poor performance in class management, engagement of students, and lesson planning, provided a rational basis for the rating (see Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [1st Dept 2011]; Batyreva v New York City Dept. of Educ., 50 AD3d 283 [1st Dept 2008]). While petitioner complains that he did not receive pre-observation conferences prior to every classroom observation, he has not demonstrated that the U-rating was made in violation of lawful procedure or any substantial right (see Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 AD3d 486 [1st Dept 2011]; Matter of Munoz v Vega, 303 AD2d 253, 254 [1st Dept 2003]; compare Matter of Kolmel v City of New York, 88 AD3d 527 [1st Dept 2011]). To the contrary, the record demonstrates that, after petitioner received a U-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 school year and, throughout the year, received professional support and had a [*2]series of classroom observations by the principal and two assistant principals, each one documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies. Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.