U-Rating Upheld by the Appellate Division in the Case of Anne Van Rabenswaay

2016 NY Slip Op 05051 IN RE ANNE VAN RABENSWAAY,
Petitioner­-Appellant,
v.
CITY OF NEW YORK; ET AL.,
Respondents­Respondents.
1571, 101036/14.

Decided June 23, 2016. Appellate Division of the Supreme Court of New York, First Department. Glass Krakower LLP, New York (John Hogrogian of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for respondents. Before: Tom, J.P., Friedman, Richter, Kapnick, Gesmer, JJ.

 Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered on or about
April 21, 2015, denying the petition to annul respondents' determination, which upheld petitioner's
unsatisfactory rating (U­rating) for the 2012­2013 school year, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without
costs.
Petitioner has failed to show that the U­rating was arbitrary and capricious, or made in bad faith.
The evidence that petitioner failed to timely complete individualized education plans (IEPs) for at least five of her students, despite repeated warnings and offers of assistance from the
IEP coordinator, provided a rational basis for the rating (see e.g. Matter of Murname 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]). Petitioner's various excuses, even if valid, would not warrant a finding that the U­rating was arbitrary and capricious under the circumstances. To accept them would amount
to second­ guessing the determination that her repeated failure to timely complete the IEPs
reflected a pedagogical deficiency that merited the U­rating (see Maas v Cornell Univ.,
 94 NY2d 87, 92 [1999]). Furthermore, petitioner has failed to demonstrate the existence of any issue of fact that could
show, even if resolved in her favor, arbitrary and capricious action under the circumstances.
Thus, there was no need for the court to have conducted a hearing (see CPLR 7804[h]).

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

Dr. Patsy Perkins Wins Her U-Rating Appeal To The Supreme Court (April, 2014)

 PERKINS v. NYC DEPT. OF EDUC.110148/11
43 Misc.3d 903 (2014),
984 N.Y.S.2d 864
2014 NY Slip Op 24121

PATSY PERKINS, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

 Supreme Court, New York County.
Decided April 30, 2014.
 [43 Misc.3d 904]
 Michael A. Cardozo, Corporation Counsel, New York City, for respondent.

 OPINION OF THE COURT

 SHLOMO S. HAGLER, J.

 Petitioner Patsy Perkins (Dr. Perkins or petitioner) moved by notice of petition and verified petition seeking to vacate and annul her unsatisfactory ratings for the academic school years 2008-2009 and 2009-2010 issued by respondent New York City Department of Education (DOE or respondent). Respondent interposed a verified answer and opposed the verified petition.

 BACKGROUND

 Dr. Perkins has been employed with the DOE since 1994. On or about June 12, 2000, the DOE appointed petitioner as an assistant principal. In or about August 2007, Dr. Perkins was assigned to M.S. 232 in the Bronx, New York as a tenured assistant principal of mathematics and science. For school year 2008-2009, principal Neifi Acosta at M.S. 232 completed the requisite "Pedagogical Supervisory Personnel Report" (annual review) dated June 19, 2009 and petitioner received an overall unsatisfactory evaluation. Principal Acosta did not complete the section of documentation in the annual review. (Exhibit A to the verified petition.) On or about June 22, 2010, principal Acosta gave petitioner a second unsatisfactory rating for school year 2009-2010. (Exhibit B to the verified petition.)

 Petitioner filed for review or appeal of both unsatisfactory ratings and a hearing was conducted on November 10, 2010. (Exhibit U to the verified answer.) At the hearing, petitioner objected that respondent failed to send documents for the hearing to the Office of Appeals and Reviews (OAR) in a timely manner. More significantly, petitioner was not furnished with documents that principal Acosta utilized to support the unsatisfactory ratings until the day of the hearing. In addition, petitioner also objected that principal Acosta failed to indicate in the rating sheet which "areas of service in Section B, Document 1.7 were deemed unsatisfactory ... and the key to documentation has been left blank." (Exhibit V to the verified answer.) All of the above objections were denied. (Id.)

 At the hearing, respondent heavily relied upon documentation to support the unsatisfactory ratings. With regard to the first unsatisfactory rating, respondent primarily relied upon three letters, one dated May 19, 2009 and two dated June 2, 2009. (Exhibits D, G, and J to the verified answer.) As for the second unsatisfactory rating, respondent submitted four letters dated March 23, 2010, April 12, 2010, June 9, 2010 and June 16, 2010. (Exhibits O, P, Q and R to the verified answer.) In two undated findings, the chair recommended that petitioner's appeal should be denied and the unsatisfactory ratings should be sustained. (Exhibits V and W to the verified answer.)     [43 Misc.3d 905]

In letters dated August 11, 2011 and May 2, 2011, the Chancellor's designee, Senior Deputy Chancellor Shael Polakow-Suransky, denied petitioner's appeals and sustained both unsatisfactory ratings. (Exhibits X and Y to the verified answer.)

 Thereafter, in or about September 2011, petitioner commenced this CPLR article 78 proceeding challenging the unsatisfactory ratings for school years 2008-2009 and 2009-2010. In or about January 2012, respondent interposed a verified answer to the verified petition.

 DISCUSSION

 STANDARD OF REVIEW FOR ARTICLE 78 PROCEEDINGS

 The standard to review an administrative determination is set forth in CPLR 7803. The scope is limited to "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, including abuse of discretion as to the measure or mode of penalty or discipline imposed" (CPLR 7803 [3]). Thus, a court may not disturb an administrative determination unless there is no rational basis for it in the record or the determination is arbitrary or capricious (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222 [1974]). The arbitrary and capricious test relates to whether the administrative action should have been taken or is justified or if, conversely, the action is without sound basis in reason and is generally taken without regard to the facts (id. at 231).

 DISTINCTION BETWEEN TECHNICAL DEFICIENCIES AND VIOLATION OF SUBSTANTIAL RIGHTS

 A hearing officer's determination as to the credibility of witnesses is entitled to deference and is "largely unreviewable because the hearing officer observed the witnesses" (Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 A.D.3d 563, 568 [1st Dept 2008]). Courts are generally reluctant to set aside administrative determinations due to technical deficiencies where the DOE fails to strictly comply with the procedures set forth in the rating handbook promulgated by the Chancellor (Matter of Brown v Board of Educ. of the City School Dist. of the City of N.Y., 89 A.D.3d 486, 487 [1st Dept 2011]). However, where the deficiencies in the review process are not merely technical, "but undermined the integrity and fairness of the process," that would amount to a deprivation of a substantial right which is not waivable       [43 Misc.3d 906]
(Matter of Kolmel v City of New York, 88 A.D.3d 527, 529 [1st Dept 2011], citing Matter of Blaize v Klein, 68 A.D.3d 759 [2d Dept 2009], and Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 A.D.2d 832, 834 [2d Dept 1981]).

 ARGUMENTS

 Petitioner alleges that respondent failed to follow its own procedures in completing the annual reviews as well as in the appeal review process which deprived her of a substantial right to a fair hearing. Specifically, petitioner claims that principal Acosta failed to indicate in the rating sheet which areas of service were deemed unsatisfactory and omitted any documentation to support the unsatisfactory ratings. Moreover, petitioner claims that respondent failed to send documents for the hearing to the OAR in a timely manner and that she was not furnished with documents that principal Acosta utilized to support the unsatisfactory ratings until the day of the hearing in contravention of respondent's own rules. (Exhibit B to affirmation of Edward Wolf in support of petition, dated May 11, 2012 [Wolf affirmation], The Appeal Process, Section I, Article 2 [a], [b], [c].)

 Respondent argues that these alleged errors were mere technical deficiencies and the record supports the findings of the unsatisfactory ratings primarily relying upon Matter of Brown, which held that the failure to annex documentation to the annual review did not constitute a meaningful violation of lawful procedure.

 FAILURE TO PROVIDE DOCUMENTATION PRIOR TO HEARING UNDERMINED PROCESS

 While some confusion still lingers as to the proper standard to employ where the DOE fails to comply with the procedures set forth in the rating handbook or in the appeals process promulgated by the Chancellor, it appears that the appellate courts have overlooked mere technical deficiencies where there is other persuasive evidence in the record and it does not deprive the petitioner of a substantial right. It is also necessary to fully explain Matter of Brown, which does not stand for the proposition that every technical deficiency by the DOE must be overlooked. However, in Matter of Brown the First Department tolerated the DOE's failure to annex documentation to the annual review because there was other persuasive testimony in the record from the principal and the assistant principal who
[43 Misc.3d 907]
made "individual assessments ... based on their personal classroom observations" (89 AD3d at 487).

 In this case, it is uncontroverted that principal Acosta failed to complete the section of documentation on the annual reviews to support the unsatisfactory ratings in compliance with procedures promulgated by the Chancellor. This deficiency was compounded by the fact that the respondent failed to furnish petitioner with a complete set of documentation used by principal Acosta to support the reasons for the adverse ratings prior to the hearing on November 10, 2010. (Exhibit B to Wolf affirmation, The Appeal Process, Section I, Article 2 [a].) Unlike in Matter of Brown, the respondent here heavily relied on the total of seven letters that was not provided to petitioner prior to the hearing and just one observation report to support the unsatisfactory ratings. Based on the totality of the circumstances, it is apparent that the deficiencies in the review process were not merely technical "but undermined the integrity and fairness of the process," thus depriving petitioner of a substantial right which was not waivable. (Matter of Kolmel, 88 AD3d at 529.)

 CONCLUSION

 Accordingly, it is ordered and adjudged, that the petition is granted to the extent of annulling the unsatisfactory ratings for school years 2008-2009 and 2009-2010 and the matter remanded to respondent New York City Department of Education for further review consistent with this decision and order, and it is further ordered, that the clerk shall enter a judgment accordingly.

Probationary Teacher Loses U-Rating Appeal (2010)

The First Department does not agree that a probationary teacher may sue under Section 1983 and "Stigma Plus" claims in order to overturn a U-rating

Kahn v New York City Dept. of Educ.

2010 NY Slip Op 09168 [79 AD3d 521]

December 14, 2010

Appellate Division, First Department

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

As corrected through Wednesday, February 16, 2011

Leslie Kahn, Respondent, v New York City Department of Education et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. New York Civil Liberties Union Foundation, New York (Adriana C. PiÑon of counsel), for respondent. James R. Sandner, New York (Wendy M. Star of counsel), for New York State United Teachers, amicus curiae. Charity M. Guerra, Brooklyn, for Council of School Supervisors & Administrators, amicus curiae.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about September 8, 2009, which denied respondents' motion to dismiss the petition, unanimously reversed, on the law, without costs, and the motion granted.

Petitioner challenges the termination of her probationary employment as a social worker, and asserts due process claims pursuant to 42 USC § 1983. She began working for the Department of Education in February 2005 as a social worker, spending 2½ years at Williamsburg High School. In July 2007 she switched to Khalil Gibran International Academy, where respondent Salzberg, as Interim Acting Principal, gave her a rating of unsatisfactory in an evaluation on December 19, 2007. Two days later, the Superintendent wrote to petitioner, denying her a certification of completion of probation, and advising that her service would be terminated effective January 25, 2008, and that she was entitled to administrative review under the collective bargaining agreement.

Petitioner proceeded with an administrative appeal on January 3, 2008. Following an administrative hearing, the Department of Education, by letter dated May 9, reaffirmed the denial of petitioner's certification of completion of probation. On or about September 9, 2008, [*2]petitioner commenced this proceeding.

Petitioner's claims, which are equitable in nature, are not barred by her failure to file a notice of claim pursuant to Education Law § 3813 (1), which is only required when money damages are sought (Ruocco v Doyle, 38 AD2d 132 [1972]).

However, her claims are time-barred. A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination (see CPLR 217 [1]; Matter of Andersen v Klein, 50 AD3d 296 [2008]; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140 [2001]). The time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies (Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv denied 14 NY3d 704 [2010]). Petitioner failed to commence this proceeding within four months of the effective date of her termination. Although the notice of termination was procedurally defective in that she was not given the requisite 60 days' prior notice of discontinuance, as required by Education Law § 2573 (1) (a), that defect does not invalidate the discontinuance or render the statute of limitations inapplicable; at best, it would have entitled petitioner to additional back pay, had she served a notice of claim and sought money damages (see Matter of Pascal v Board of Educ. of City School Dist. of City of N.Y., 100 AD2d 622, 624 [1984]).

Nor does petitioner have a valid claim for deprivation of civil rights under 42 USC § 1983. Such a claim requires an allegation that the proponent was deprived of a property or liberty interest without due process of law (see Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). A probationary teacher does not have a property right in his or her position (see Pinder v City of New York, 49 AD3d 280 [2008]; Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 629-630 [2d Cir 1996], cert denied 519 US 1150 [1997]). The process provided for in the collective bargaining agreement did not create such an interest (see Sealed v Sealed, 332 F3d 51, 56 [2d Cir 2003]). Moreover, petitioner was not deprived of a liberty interest by the "stigma" arising from allegations of poor work performance. To establish such a "stigma plus" claim, a petitioner must prove "some action by the [agency] imposing a tangible and material burden, and . . . [the] utterance of a false statement that damaged his reputation in connection with the burdensome action" (O'Connor v Pierson, 426 F3d 187, 195 [2d Cir 2005]). While Salzberg's accusations against petitioner may "go to the heart of [petitioner's] professional competence and damage her professional reputation to such an extent as to severely impede her ability to continue in the education field in a supervisory capacity" (Donato, 96 F3d at 633), [*3]petitioner's "stigma plus" claim is defeated by the availability of a post-termination administrative hearing (see Segal v City of New York, 459 F3d 207 [2d Cir 2006]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.