Another probationary teacher who cannot reach the standard for bad faith or retaliation.
Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.
14367 In re Nayana Vyas, Index 102253/12
Petitioner Appellant,
-against - City
of New York, et al.,
Respondents-Respondents. Glass Krakower LLP, New York (Jordan Harlow of counsel), for
appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless
of counsel), for respondents.
Judgment, Supreme Court, New York County (Kathryn E. Freed,
J.), entered June 25, 2013, insofar as appealed from as limited
by the briefs, granting respondents’ cross motion to dismiss,
pursuant to CPLR 3211(a)(7), the petition seeking the annulment
of respondents’ denial of petitioner’s appeals of her
unsatisfactory ratings (U-ratings) for the 2009-2010 and 2010-
2011 school years, and dismissing the proceeding brought pursuant
to CPLR article 78, unanimously affirmed, without costs.
Petitioner, who was formerly employed by respondent New York
City Department of Education (DOE) as a probationary teacher,
brought this proceeding under CPLR article 78 to annul her U ratings
for the 2009-2010 and 2010-2011 school years. In lieu of
answering the petition, respondents made a cross motion, pursuant to CPLR 3211(a)(7), to dismiss the petition for failure to state
a cause of action. Because petitioner has not pleaded any
specific facts giving rise to a fair inference that the U-ratings
were arbitrary, capricious, made in bad faith, or issued in
violation of lawful procedure, Supreme Court properly granted the
cross motion and dismissed the petition.
With regard to the U-rating for the 2009-2010 school year,
petitioner’s primary complaint is that she was evaluated based on
assignments to teach science classes, which were outside her area
of certification (mathematics). However, DOE was entitled to
assign petitioner (who holds a medical degree) to teach science
classes, notwithstanding that her certification is in
mathematics. The provision of the Rules of the Board of Regents
that prohibits assigning a teacher “to devote a substantial
portion of [her] time in a tenure area other than that in which
[she] has acquired tenure or is in probationary status, without
[her] prior written consent” (8 NYCRR § 30-1.9[c]) is “not . . .
applicable to city school districts located within cities having
a population in excess of 400,000 inhabitants” (8 NYCRR § 30-
1.2[e]), such as DOE (see Steele v Board of Educ. of City of
N.Y., 40 NY2d 456, 463 n 2 [1976]).
Since DOE was entitled to
make the teaching assignments in question, its evaluation of petitioner based on those assignments does not give rise to an
inference that the resulting U-ratings were arbitrary,
capricious, or made in bad faith, nor were the U-ratings issued
in violation of lawful procedure. Further, given that petitioner
was a probationary teacher who could have been discharged at any
time, for any lawful reason or no reason at all under Education
Law § 2573(1)(a) (see Matter of Venes v Community School Bd. of
Dist. 26, 43 NY2d 520, 525 [1978]), bad faith cannot be inferred
from the fact that the U-rating was issued after the school
principal insisted that petitioner sign an agreement consenting
to an additional year of probation to avoid being discharged.
The petition’s remaining allegations concerning the 2009-2010
school year also fail to raise an inference that her U-rating for
that year was issued in bad faith or was otherwise improper.
The only basis alleged in support of petitioner’s challenge
to her U-rating for the 2010-2011 school year is the contention
that it was issued in retaliation for her having filed a
complaint with the State Department of Education against the
principal who issued her U-rating for the previous year, when she
was teaching at a different school.
This fails to state a cause
of action for annulment of the rating because petitioner’s
imputation of a retaliatory motive for the U-rating is entirely speculative; the specific facts alleged do not give rise to a
fair inference that the U-rating was improperly motivated (see
Matter of Murnane v Department of Educ. of the City of N.Y., 82
AD3d 576 [1st Dept 2011]).
Notably, petitioner admits that she
was assigned to teach within her area of certification during the
2010-2011 school year, and she alleges no procedural
irregularities that might have undermined the integrity or
fairness of the rating process for that year (cf. Matter of
Kolmel v City of New York, 88 AD3d 527, 529 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 17, 2015
_______________________
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