Join the GOOGLE +Rubber Room Community

Wednesday, September 30, 2015

Bari Brower Wins Her Article 78, Vacating Her U-Rating For The 2006-2007 School Year

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

Matter of Brower v New York City Dept. of Educ. 2015 NY Slip Op 04764 Decided on June 9, 2015 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 June 9, 2015
Acosta, J.P., Saxe, Moskowitz, Richter, Feinman, JJ.
14835 113843/10 100594/13

[*1] In re Bari A. Brower, Petitioner-Appellant,


New York City Department of Education, Respondent-Respondent. 
Noah A. Kinigstein, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered January 21, 2014, denying the petition to annul respondent's determination, dated December 20, 2012, which sustained the issuance of an unsatisfactory rating (U-rating) of petitioner's performance as a teacher for the 2006-2007 school year, and dismissing the proceeding, unanimously reversed, on the law, without costs, the petition granted, petitioner's U-rating for the 2006-2007 school year vacated, and the matter remanded to respondent for further proceedings consistent herewith.

Petitioner was certified by the State of New York as a public school teacher for grades 1 through 6 in September 2006. On August 31, 2006, she was appointed as a probationary kindergarten teacher with the Department of Education (DOE), and was assigned to P.S. 1 in the Bronx. She received a satisfactory rating in her first formal observation, on November 21, 2006. However, she received an unsatisfactory rating after an "informal observation" on January 10, 2007.

Later in January 2007, the principal discovered that petitioner, who was only licensed to teach grades 1-6, was teaching out of license at the kindergarten level, and reassigned her to a first-grade class. Although respondent asserts that the transfer occurred in January, petitioner states that it occurred in March, seven months into the school year. In any event, it was a mid-year transfer into what petitioner describes as a "very difficult class." She alleges, inter alia, that five teachers had been assigned to the class in 2006-2007 and all had been reassigned or resigned; that many of the children in the class had severe behavior problems; and that the class was in effect "an unspecified special education' class."

On April 17, 2007, shortly after petitioner had been transferred to the new class, an assistant principal conducted a formal observation of petitioner's first-grade class, and rated petitioner unsatisfactory. The observation report found, inter alia, that during the lesson, two students were running around the room, and one ran out of the classroom; that petitioner did not "address the needs" of two named students; and that petitioner "did not bring the lesson to summation" when the period ended.

A third and final formal observation for the 2006-2007 school year was scheduled for June 12, 2007, but never occurred. In a June 14, 2007 letter to petitioner, the principal related [*2]the relevant events and concluded that petitioner "impeded [the observation] process from taking place" by twice rescheduling and postponing the dates set for her pre-observation conference, as well as for the formal observation, claiming illness and failing to follow the proper procedure for absences.

On June 15, 2007, petitioner received and signed her annual review for the 2006-2007 school year, which rated her unsatisfactory in 17 of the 23 categories listed on the rating sheet. The review further showed that petitioner was absent from school 11 times during the school year.

By letter dated June 15, 2007, the Community Superintendent for District 7 informed petitioner that her file would be reviewed for a determination of whether her services as a probationary teacher would be discontinued and whether her teaching license would be terminated as of the close of business on July 15, 2007. The letter stated:

"The consideration of your discontinuance is based on professional attitude and professional growth; attention to records and reports; unsatisfactory classroom performance; poor planning and preparation; skill in adapting instruction to the individual needs of the students; evidence of pupil growth in knowledge and skills."

This letter constituted the charging document that was the basis of the ensuing hearing. Notably missing from the charging document was any mention of excessive absences.

By letter dated July 16, 2007, the Community Superintendent for District 7 informed petitioner of the "reaffirm[ance of her] Discontinuance of Probationary Service and Termination." On November 20, 2007, an officially designated Chancellor's Committee, composed of three members, conducted a review of the decisions to issue petitioner a U-rating for the 2006-2007 school year, to discontinue her probationary service, and to revoke her New York City teaching certificate.

After considering the documents and testimony presented at the review, the majority of the Chancellor's Committee concurred as to the recommendation to discontinue petitioner's probationary service. However, "[r]ecognizing that [petitioner] is young and inexperienced and that she had to take over a new class, which may have been more of a challenge than she could handle," the Committee "reached unanimous[] non-concurrence on the recommendation to terminate all license(s)/certificate(s) held by [petitioner]."

Approximately 2 ½ years later, by letter dated June 22, 2010, the Chancellor's designee informed petitioner that he had "reviewed the report of my Committee concerning the recommendation that all your teaching certificate(s)/licenses be terminated . . . and that your probationary service as a Teacher of Common Branches be discontinued," and had determined to sustain the recommendation. Accordingly, all of petitioner's licences/certificates to teach in New York City were terminated effective July 16, 2007. As petitioner notes, this determination was made notwithstanding the unanimous view of the Chancellor's Committee that the recommendation to terminate all her licenses/certificates held by petitioner should not be adopted.

This is petitioner's second CPLR article 78 proceeding. In the prior proceeding, the court concluded that the petition to review the termination of petitioner's probationary employment was time-barred, but granted the proceeding to the extent of annulling the unsatisfactory rating and revocation of petitioner's teaching license and remanding the matter for a new hearing on [*3]petitioner's unsatisfactory rating and the imposition of a penalty (see Matter of Brower v New York City Dept. of Educ., 38 Misc 3d 291 [Sup Ct, NY County 2012]).

In the prior proceeding, the court also found, inter alia, that respondent failed to give petitioner adequate notice that absenteeism was a basis for its considering adverse action against her and thus that its reliance on petitioner's attendance record violated due process. Nevertheless, on remand, respondent again relied on evidence of absenteeism, as did the court in upholding petitioner's U-rating in the instant proceeding.

We find that respondent acted in a manner that was arbitrary and capricious. While the evidence of pedagogical deficiency — apart from the evidence of absenteeism — might, by itself, be sufficient to warrant the U-rating, that is for respondent to decide.

If, on remand, respondent declines to sustain petitioner's unsatisfactory rating, respondent is free to reconsider the termination of her probationary employment (see Matter of Brower v New York City Dept. of Educ., 38 Misc 3d 291). If, on the other hand, respondent sustains the unsatisfactory rating, it is precluded from imposing the penalty of revocation of her teaching license because the judgment in the first article 78 proceeding directed that the penalty, if any, should be something less than revocation of petitioner's license, and respondent did not appeal from that judgment.

Petitioner here presents a much stronger case than that of the petitioner in Matter ofBrown v Board of Educ. Of the City School Dist. of the City of N.Y. (89 AD3d 486 [1st Dept 2011]), which involved a single improperly considered document that ostensibly related to the same issue — i.e., pedagogical quality — the evidence of which we ultimately found adequate. Here, the disputed evidence relates to a different issue. Further, it is notable that both the post-hearing report of the ALJ on remand and the decision in the second article 78 proceeding paid considerable attention to the question of absenteeism. It is also noteworthy that, as the article 78 court in the first proceeding noted, the U-rating was based in large part on one formal evaluation during petitioner's short time as a first grade teacher. While there was certainly evidence supporting the U-rating, it should be noted that petitioner was transferred from the class that she had been teaching since the start of the school year to a new class sometime between January and March. Finally, it is significant that the wrongful admission of evidence in this case occurred after a specific direction from the court that evidence of absenteeism was not authorized, based on the charges.

Accordingly, we remand the matter to respondent for reconsideration of petitioner's performance rating for the 2006-2007 school year based solely on the evidence related to the charges of which petitioner received proper notice.



5846, 113658/08

89 A.D.3d 486 (2011)
932 N.Y.S.2d 64
2011 NY Slip Op 7908


Appellate Division of the Supreme Court of New York, First Department.

Decided November 10, 2011.


Petitioner was a probationary teacher in the New York City school system for three years. He was terminated at the end of his third year in 2008. Pursuant to a review procedure set forth in the parties' collective bargaining agreement, petitioner appealed to the Department of Education's Office of Appeals and Reviews.

At a hearing, petitioner's supervisors, Principal Weissbrot and Assistant Principal Bausch, were called as witnesses by the Department of Education (DOE). They both similarly testified about petitioner's poor performance in class management and engagement of students. DOE also presented petitioner's Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee (APPR) for the period of August 30, 2007 to June 2008. The APPR, which was signed by Principal Weissbrot, reflected a "U-rating" in that calendar year for petitioner. Besides cross-examining DOE's witnesses, petitioner pointed out that the APPR was deficient in several respects, namely that no documentation was annexed to the APPR as required by the rating handbook promulgated by the Chancellor, and that sections of the report were left blank.

The Chancellor's Committee Report issued in September 2009 unanimously agreed with the principal's recommendation to deny petitioner his Certification of Completion of Probation effective August 28, 2008. In this article 78 proceeding brought by petitioner, Supreme Court found that the determination to discontinue petitioner's employment was rationally based. Nevertheless, the court granted the petition on the ground that the APPR was not in strict compliance with the procedures set forth in the rating handbook promulgated by the Chancellor. We now reverse.

Petitioner has failed to demonstrate that his termination of employment as a probationary teacher was arbitrary and capricious or in bad faith. Indeed, petitioner does not dispute that the evidence adduced at the hearing from the principal and assistant principal provided ample ground for his discontinuance. The principal and the assistant principal described petitioner's poor performance in class management and engagement of students. Significantly, their individual assessments were based on their personal classroom observations. Under these circumstances,
[89 A.D.3d 488]

any deficiencies in the APPR do not render the determination to discontinue his employment arbitrary and capricious since the hearing testimony provided ample grounds for his termination (see Matter of Sorell v Board of Educ. of City School Dist. of City of N.Y., 168 A.D.2d 453 [1990]).


A Look Back to March 2015, When Bill de Blasio Said That Teacher Accountability= Admitting You Are a Subpar Teacher (ATR), and You Should Leave the DOE

Most ATR teachers who left system since new contract took buyouts, retired

By Geoff Decker and Sarah Darville
Steps of Tweed, DOE Headquarters, 52 Chambers Street in Manhattan

In his fight to fend off the education policy proposals being pushed by Gov. Andrew Cuomo, Mayor Bill de Blasio has said his administration is already cracking down on subpar teachers.
In particular, he has pointed to 290 or so teachers who have left the school system entirely between April 2014 and this February. They left the costly and controversial absent teacher reserve pool, and represent as many exits as the Bloomberg administration saw during the previous two years combined, city officials said.
“My administration is serious about teacher accountability,” de Blasio told state lawmakers last month while defending his plan for struggling schools. “We have moved 289 teachers out of the Absent Teacher Reserve – and out of the system – since April.”
New figures released Friday, along with documents obtained by Chalkbeat, offer new insight into why those teachers departed. They show that disciplinary processes, including new ones created by last year’s teacher contract, played a fairly small role, with only 21 of the teachers terminated after missing job interviews or for other reasons.
De Blasio has said recently that his administration prefers different strategies. Nearly 200 of those 289 teachers — who lost their permanent positions and couldn’t find new ones, but remained on the city’s payroll as substitutes — took buyouts last summer or retired this school year. Another 18 resigned, and 53 agreed to leave while facing charges of misconduct or incompetence.
In addition, no teachers had faced charges under a new, expedited termination process as of December 2014, according to a department document obtained by Chalkbeat. (That process requires a teacher to have logged formal complaints from two separate principals, something that could be unlikely to happen in the first months of the school year.)
The new figures brought renewed calls from advocates of Cuomo’s plans to change to state law that sets out the procedures for teacher termination.
“Instead of being part of the solution, this administration has thrown its hands up and resigned itself to working around a broken system,” said Jenny Sedlis, executive director of StudentsFirstNY.
But the absent teacher reserve has shrunk under de Blasio, in part because he did not close any schools last year. Under former Mayor Michael Bloomberg, the pool ballooned with teachers excessed from closing schools, costing the city an estimated $105 million in 2013.
City officials says the pool had about 1,000 teachers this February. More than 500 teachers were hired for full-time positions in the fall, according to the department document, and the pool had 280 fewer members at the start of this school year than last.
Now, the de Blasio administration is facing the same complicated process of removing the pool’s longtime members that has frustrated city leaders for years.
Testimony given in 2013 by Lawrence Becker, the department’s CEO of human resources, illustrates some the challenges. More than 300 teachers in the pool then had incompetence or misconduct charges against them substantiated, but were not allowed to be terminated. More than 200 had recently received an unsatisfactory rating, and more than 150 were licensed to teach “esoteric” subjects, making them difficult to place in schools. Formal disciplinary proceedings can last months and sometimes years.
On Thursday, de Blasio said that the best way to get around those problems is by avoiding formal procedures altogether. Instead, principals and department officials should focus on counseling subpar teachers to leave on their own, a strategy that Chancellor Carmen FariƱa told Capital gives them an “opportunity to leave gracefully.” Some of the recent retirements and resignations were likely the result of that kind of strategic pressure, officials said.
“If you can counsel someone out voluntarily, skip all that process — ‘You don’t belong here anymore, you’re a good human being but you don’t belong here anymore, you’re not into it, you’re burned out, you can’t do what we need you to do in this day and age,’ whatever it is — if that person goes along willingly, that is the most efficient way to resolve the problem,” de Blasio said.
United Federation of Teachers President Michael Mulgrew, a close ally of de Blasio’s, has also acknowledged that the process for matching excessed teachers to schools that need them still needs work.
“The entire ATR process was so mismanaged by the Bloomberg administration that it will take years to sort out,” Mulgrew said.