In the Matter of Gehlaut, New York State Supreme Court Judge Joan Lobis wrote in her decision to deny the NYC DOE their Motion To Dismiss:
"The petition alleges in pertinent part that the Respondents violated lawful procedures in rating Petitioner's performance as Unsatisfactory and upholding that rating on appeal......In this instance, this Court finds that Petitioner has stated a cause of action because the procedures cited are lawful procedures to which Respondents may be held bound. The language of the relevant provisions are not precatory but rather mandate that Respondents must document an adverse rating, which petitioner plainly alleges was not done in this case. Moreover, to sustain an appeal of an adverse rating the reviewing body must have shown before it all elements of the basis for which to support that rating. Again Petitioner has plainly alleged that essential elements of supporting documents have not been admitted in this case either on appeal or in Petitioner's personnel file.
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MATTER
OF GEHLAUT v. BOARD OF EDUC. OF THE CITY SCH. DIST. OF THE CITY OF N.Y.
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Docket No. 103366/2012, Sequence No. 001.
2013 NY Slip Op
30339(U)
IN THE MATTER OF THE APPLICATION OF DHARMVIR GEHLAUT, Petitioner,
v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and
DENNIS M. WALCOTT, as Chancellor of the City School District of the City of New
York, Respondents.
Supreme Court, New
York County.
February 13, 2013.
Filed February 15,
2013.
Decision and Order
JOAN B. LOBIS, Judge.
Dharmvir Gehlaut petitions under Article 78 of the Civil
Practice Law and Rules for an order nullifying Gehlaut's teaching evaluation
rating as affirmed on administrative appeal and directing Respondents Board of
Education of the City School District of the City of New York and Dennis M.
Walcott (collectively "BOE") to issue a different rating. Respondents
cross-move under C.P.L.R. Rule 3211(a)(7) to dismiss the petition on the
grounds that it fails to state a cause of action. For the following reasons,
the cross-motion to dismiss is denied.
The facts set forth are gleaned from the papers filed in this
action and construed in the light most favorable to Petitioner as non-moving
party to Respondents' cross-motion to dismiss. Petitioner Dharmvir Gehlaut has
been employed by Respondents since 2005. In 2010, he was a tenured teacher of
math at Emma Lazarus High School for English Language Scholars here in New York
City. On June 28, 2011, the school's Principal, Melody Kellogg, signed a
teaching evaluation that rated Gehlaut as Unsatisfactory for the 2010-2011
school year. Gehlaut signed the evaluation on September 1, 2011. Section 4 of
the evaluation, which lists supporting documentation, is blank.
Petitioner grieved the rating and a hearing was conducted on the
appeal on January 27, 2012. Gehlaut was represented by his union
representative. At that hearing Respondents attempted to introduce into
evidence three observation reports, two prepared by the school's assistant
principal, and one by the principal, and a letter dated March 28, 2011, from
Principal Kellogg to Gehlaut. Each proffered document contained an
acknowledgment stating "I have received a copy of this letter and
understand a copy will be placed in my file." There was a signature line
and date. None of the acknowledgments had been executed. The hearing officer
sustained objections to these items' admissibility. Respondents submitted
testimony of one witness, Principal Kellogg, who participated by telephone.
On March 28, 2012, Respondents denied Gehlaut's appeal. Gehlaut
filed a notice of claim on June 25, 2012, and now brings this petition. Gehlaut
claims that the BOE's determinations issuing him a rating of Unsatisfactory
without appropriate supporting documentation and affirming that determination
on appeal violated lawful procedures, were affected by error of law, and were
arbitrary and capricious or an abuse of discretion. He asks this Court as
relief to change his rating to Satisfactory.
Respondents cross-move claiming that Gehlaut has failed to state
a cause of action. In their memorandum of law they minimize the import of the
documents' preclusion as having been made "for technical reasons." Memorandum of Law at 13.
Respondents appeal to "common sense" in urging this Court to overlook
those reasons. Id. While Respondents admit that the BOE did not
"fully and strictly comply[] with every scintilla" of its evaluation
procedures, Respondents aver that Petitioner's challenge is "repeatedly
made by teachers seeking to evade the consequences of their own poor
performance." Id. at 16. Respondents deny that Gehlaut has been
deprived of any substantial right in the affirmance of the rating, and contend
that this Court cannot "second guess" the decision of the
Chancellor's Committee. Id.
A motion to dismiss under C.P.L.R. Rule 3211(a)(7) will fail if
within the four corners of the pleading there are discernable facts that show a
cause of action. E.g., Guggenheimer v. Ginzburg, 43
N.Y.2d 268, 275 (1977). The Court must accept as true the facts
alleged in the pleading and those in the non-moving party's submission opposing
the motion to dismiss, and accord the plaintiff all favorable inferences. E.g., ABN
AMRO Bank, N.V. v. MBIA Inc., 17
N.Y.3d 208, 227 (2011).
This Court finds Respondents' cross-motion to be unpersuasive.
Section 7803 of the Civil Practice Law and Rules provides in pertinent part
that this Court may consider "whether the body or officer failed to perform a duty enjoined upon it by
law;" whether "a determination was made in violation of lawful
procedure, was affected by an error of law or was arbitrary and capricious or
an abuse of discretion." Id. § 7803(1); 7803(3). The Court may
grant a petitioner relief to which he is entitled including among others
annulment of the determination in whole or in part and may direct specified
action by the respondent. Id. § 7806.
The petition alleges in pertinent part that the Respondents
violated lawful procedures in rating Petitioner's performance as Unsatisfactory
and upholding that rating on appeal. Petitioner attaches at Exhibit G the
Chancellor's Special Circular No. 45 and the current version of the ratings handbook promulgated pursuant to that Circular.
The Circular, dated April 10, 1988, provides notice that the New York State
Commissioner of Education's Regulation 100.2(o) requires that beginning in
September 1987 all school districts must adopt "formal procedures"
for annual reviews. Those "formal review procedures," moreover, must
be placed on file in the district office and be available for review "by
any individual." The BOE's Office of Appeals and Reviews publishes and
addresses inquiries relating to the procedures issued in handbook form. The
handbooks in their current form are entitled "Rating Pedagogical Staff Members,"
which also appears at Exhibit G of the petition, and appends Circular No. 45 at
Appendix I, (Ratings Handbook) and "The Appeal Process," which
appears at Exhibit I of the petition (Appeals Handbook).
Petitioner alleges that Respondents violated several specific
formal review procedures in the Ratings Handbook. At page 3 of the Ratings
Handbook, Part II addresses evaluations and ratings of personnel. Section A of
that Part is entitled "Mandate and Timing." It incorporates in
pertinent part Section 89, Subdivision 7 of the New York State Commissioner of
Education's Regulations that mandated the timing and evaluation of employees.
Quoting that Regulation, the Ratings Handbook states as follows: "`Within
the last ten school days of each school year ... the principal ... shall give
to each member of . . . staff a signed statement characterizing ... work as
Satisfactory or Unsatisfactory....'" The quoted Regulation specifically
required documentation: "`A Certification of Unsatisfactory ... shall be
accompanied by appropriate supporting data.'" Gehlaut's rating sheet,
which mimics the form provided in the handbook, does not list any documents in
the section for documentation. Petitioner's Exh. A, at page 2 of 2.
Respondents recognize the need to document evaluations. The Ratings
Handbook Foreword devotes two of its four paragraphs to that need:
"concise documentation is fundamental to the process. Due to the serious
implications of adverse ratings ... the need to document the evaluation of an
employee's performance is essential." The Foreword also expressly
addresses the importance of documentation for appellate review: "The
admissibility of documents and written criticism has been defined by
contractual language, grievance/arbitration decisions and rulings adjudicated
by both the legal system and the State Commissioner of Education. Hence, the
principal must be aware of the type and nature of documents which are germane
to the evaluation of staff and the need for clear, objectively written
statements."
Respondents also recognize the substantial right implicated by
the procedures set forth in the Ratings Handbook. Section G of Part II is
entitled, "Implications of an Adverse Rating." That section expressly
acknowledges that "[r]eceipt of an Unsatisfactory rating has serious implications." Id. at
9. These can include "filing of charges against tenured employees"
and may impact "an employee's ability to obtain additional licenses." Id.
At Section I, entitled Analyzing Documents and Records, the
Ratings Handbook provides that evaluator must review the documents in the file.
Those documents include observation reports and letters like those attempted to
be introduced at the hearing in Petitioner's case. Material to be placed in a
staff member's file, however, "must note that it is being placed in the
official file and a signature line must be provided for the recipient of the
letter; a date line should also be provided." Id. Part
II.I(2)(a) at 10. See also Appendix F of the Ratings Handbook (Sample
Observation Report #1). If an employee refuses to sign a document for the file
"a witness should sign a dated statement on the document attesting to this
refusal." It is uncontroverted that no attestation was done in this case.
These unsigned documents are expressly acknowledged as inadmissible at reviews
and appeals. Id. Part II.I(6)(a) at 11. The inadmissible records may,
however, be used to refresh recollections in cross-examination. Id.
The right to appeal an adverse rating appears in the BOE's
by-laws at Section 4.3.1, which by-laws Petitioner appends at Exh. H. Moreover,
those by-laws contemplate the formal procedures promulgated pursuant to the
Chancellor's Special Circular No. 45: "Any person ... in respect to an
appeal from a rating of an other than a satisfactory rating ... shall be
afforded the opportunity for review in the manner set forth herein and in
procedures established by the Chancellor." The Circular expressly instructs
"formal procedures" be developed to include "[t]he procedures
for appeal from an adverse rating." Exh. G, Ratings Handbook, Apx. I, p.
1.
The Appeals Handbook, also prepared by the Office of Hearings
and Review, and attached as Exhibit I of the Petition, methodically sets out
the appellate procedures. The Foreword references the by-laws and the BOE's
"guiding principles of fairness and impartiality regarding a pedagogical
employee's rights to appeal an adverse rating." Procedural steps regarding
... documentation ... are listed and documented."
Section I the Appeals Handbook applies to all pedagogical
employees and specifies the right to appeal and the review. The rating officer
is required to furnish appellant "with a complete set of the documentation
used by the Rating Officer to support the reasons(s) for the adverse
rating." Appeals Handbook, Sec. (I)(A)(2). Appellant is then provided an
opportunity to respond to documentation. Id. § (1)(A)(3). Appellant
is not permitted to be represented by an attorney. Id. § (I)(B). The
rating officer may stand on the written record or make oral statements
"with respect to... the supporting documents previously submitted . .
." Id. § (I)(B)(2)(e). After the review, the Chancellor's
Committee meets to deliberate and writes a confidential report containing
findings and the rationale for the recommendation. If the appeal is granted,
the adverse rating is reversed "on all school, district and central
headquarters' records." Id. § (I)(B)(3). Furthermore, the rating
officer is required to issue a new overall evaluation. Id.
In this instance, this Court finds that Petitioner has stated a
cause of action because the procedures cited are lawful procedures to which
Respondents may be held bound. The language of the relevant provisions are not
precatory but rather mandate that Respondents must document an adverse rating,
which petitioner plainly alleges was not done in this case. Moreover, to
sustain an appeal of an adverse rating the reviewing body must have shown
before it all elements of the basis for which to support that rating. Again
Petitioner has plainly alleged that essential elements of supporting documents
have not been admitted in this case either on appeal or in Petitioner's
personnel file.
A court may compel an administrative body or officer to comply
with its own rules and regulations. Frick v. Bahou, 56
N.Y.2d 777 (1982). The appellate division has long held that
by-laws of the Board of Education are binding upon it. Lehman v. Board of
Educ., 82 A.D.2d 832, 833 (2d Dep't 1981). The Lehman Court
further held that the same principles apply to regulations promulgated by the
Chancellor. Id. By corollary the court further held that rules of
administrative agency that regulate procedure affecting substantial rights of
individuals may not be waived by the agency. Id. at 834. In In
re Blaize v. Klein, 68
A.D.3d 759 (2d Dep't 2009), the appellate division reversed the
agency's determination upholding the rating officer's determination of
unsatisfactory. The court referred to procedural errors made, including the
respondents' failure to provide petitioner with the complete set of documents
on which the determination was based within three weeks of her challenge to the
determination. In that case, the court cited to then extant by-law § 5.3.4A.
Notably today the by-laws merely authorize the Chancellor to "establish
and publish appropriate rules for the processing of appeals." Section 5.1,
p. 14 at Petitioner's Exh. H. Regardless, however, those rules promulgated by
delegation are similarly binding. Lehman, 82 A.D.2d at 834; see also
Kolmel v. City of New York, 88
A.D.3d 527, 528 (1st Dep't 2011) (failure to observe adversely rated
teacher violated DOE's rating rules). In this case procedural errors are
alleged. As discussed above, there is no doubt that an adverse rating affects
Petitioner's substantial rights. Kolmel, 88 A.D.3d at 529 (deficiencies in
the review process leading to adverse employment consequences "are not
merely technical, but undermine[] the integrity and fairness of the
process"). Accordingly Petitioner's allegations that the BOE failed to
follow its own procedures relating to documentation supporting Gehlaut's
adverse rating and its affirmance on appeal states a cause of action.
Respondents urge this Court to follow its holding in Applewhite
v. Board of Educ., 2012 N.Y. Misc. LEXIS 3995 (Aug. 10, 2012), and reject any
procedural requirement outlined in the Ratings Handbook. They refer to this
Court's statement in Applewhite that "[v]iolations of the Rating
Handbook do not equate to violations of rules or regulations guaranteeing a
substantial right, and, therefore, cannot serve as a basis for a finding that
the decision to deny petitioner's appeal was made in violation of lawful
procedures." After consideration of the arguments in this case I decline
to adopt the reasoning of Applewhite here. Dismissing the Ratings
Handbook as a mere guideline would be improper in the context of this case. Not
only does the hearing officer's ruling excluding any documentation offered at
hearing distinguish this case factually from Applewhite, but also
Petitioner has established that the Rating Handbook must be equated with
administrative rules and regulations that affect a substantial right of the
Petitioner. An adverse rating profoundly affects a teacher's professional
standing. Various sections of the New York State Commissioner of Education's
Regulations and the Chancellor's Special Circular require the existence of
procedures outlined in the Handbook and defined nowhere else. Without reference
to the Ratings Handbook, Respondents would be in violation of their own
regulations. Applewhite can be further distinguished. In that case
this Court had six admitted documents before it in sustaining the appeal. See
In re Cohn v. Board of Educ., 2013 NY Slip Op 00418 (1st Dep't, Jan. 29, 2013)
(affirming adverse rating that was supported by documented observations). Here,
in contrast, Petitioner alleges there were none. The Petitioner has stated a
cause of action. Accordingly, it is
ORDERED that Respondents' cross-motion to dismiss the petition
is denied; and it is further
ORDERED that within thirty days from the date of service of this
order with notice of entry the Respondents shall file a verified answer to the
Petition.
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