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Sunday, May 14, 2017

Probationary Teacher Nayana Vyas Failed to Overturn Her U-Rating or Prove Retaliation (2015)

Another probationary teacher who cannot reach the standard for bad faith or retaliation.

Betsy Combier
Editor, NYC Rubber Room Reporter
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]).


RE: the Appeal of Suzanne Varriale, Who Did Not Testify At Her 3020-a Case

Automatic termination. That's the penalty in any case where the Respondent does not testify.

Why?This leaves no appeal, as an Article 75 Petition filed in the Supreme Court to overturn a 3020-a arbitrator's decision is called. The arbitrator in her case had nothing to look at about whether or not the charges were untrue.

I don't know of any 3020-a decision won by a Respondent(charged employee) who did not testify. All the cases I have show termination.

In the case of J.S., who filed an Article 75 to overturn his arbitrator's decision but he did not testify, New York State Supreme Court Judge Alice Schlesinger reprimanded him for not testifying. She told us that she needed something from the Petitioner at the 3020-a to use if she denied the Corporation Counsel's Motion To Dismiss. I was in her chambers, invited by her after I went with J.S. to his oral argument. She told us that she had to sustain the termination, even though she didn't want to, because J.S. had a witness who testified that he was an excellent teacher. She dismissed the Petition.

In sum, do not go to a 3020-a and not testify. Give your side of the story.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

2017 NY Slip Op 02513

IN RE SUZANNE VARRIALE, Petitioner-Appellant,


CITY OF NEW YORK, ET AL., Respondents-Respondents.

3572, 652189/14.
Appellate Division of the Supreme Court of New York, First Department.
Decided March 30, 2017.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 10, 2015, which, after a hearing, denied the petition to vacate the determination of respondent New York City Board of Education, dated July 7, 2014, which terminated petitioner's employment as a tenured school teacher, and dismissed the proceeding, unanimously affirmed, without costs. Although petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been preferred against her, in light of the seriousness of the allegations herein, the penalty of termination was not shocking to one's sense of fairness (see Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656, 657 [1984]). The record showed that petitioner strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence. Even after security personnel defused the situation by removing the student from the classroom, petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning, to the student's scheduled class in the gymnasium, although the student, having been suspended from school, was not there (compare Riley v City of New York, 84 AD3d 442 [1st Dept 2011]). Further, as noted by the hearing officer, had the student been in class that morning, the possibility of violence occurring was very real, and petitioner conveyed a message to other students that she could not rely upon school authorities to control threats of violence against a teacher by a student.
Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondents.
Before: Tom, J.P., Moskowitz, Feinman, Gische, Kapnick, JJ.
Petitioner also showed no remorse nor appreciation for the seriousness of her conduct (see e.g. Matter of Villada v City of New York, 126 AD3d 598, 599 [1st Dept 2015]) to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record (Matter of Carangelo v Ambach, 130 AD2d 898, 900 [3d Dept 1987], appeal denied 70 NY2d 609 [1987]).