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Decision No. 15,209

Appeal of ALEX SCHREIBER from action of the New York City Department of Education regarding an unsatisfactory rating.

Decision No. 15,209

(April 19, 2005

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Shivani Soni, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges an unsatisfactory rating for his teaching performance during the 2001-2002 school year. The appeal must be dismissed.

During the 2001-2002 school year, petitioner was a tenured mathematics teacher at W.C. Bryant High School, a public school now operated by the New York City Department of Education ("respondent"). On or about January 24, 2002, one of petitioner's students made a formal complaint to the principal concerning certain sarcastic, demeaning, and embarrassing remarks allegedly made by petitioner about her and other students during classroom time. Following receipt of the complaint, the principal investigated and interviewed approximately 15 other students. The principal met with petitioner on February 14, 2002, and confronted him with the complaint and written statements of the other students. Following the conference, the principal issued a letter dated February 15, 2002. The conclusion of the letter stated:

Based on the investigation of student statements as well as your admission to me . . . that you have used sarcasm in your classes and that you indeed made unprofessional and inappropriate comments about [the complaining student] when she was not in the room, I conclude that the allegations are true.

. . .

Finally, I advised you that this misconduct which violates the Chancellor's Regulations may lead to further disciplinary action, including an adverse rating for this school year.

Pursuant to the collective bargaining agreement, petitioner initiated a grievance to have the letter removed from his file. At Step II, the superintendent's representative issued a decision dated April 30, 2002, finding that "the Grievant did use inappropriate comments in the classroom regarding one student in particular and when referring to the class as a whole. The Principal was justified in her remarks and the Grievant presented no new information that would show the letter to be inaccurate or unfair." At Step III of the process, the Chancellor's representative again denied the grievance in a decision dated October 17, 2002. The Chancellor's representative found:

The February 15, 2002 letter accurately and fairly describes the incident. The comments made by the grievant were shown to have embarrassed the student thereby causing harm to the student. Accordingly, the principal's finding that there was a violation of Chancellor's Regulation A-420 is not arbitrary or capricious . . .

Thereafter, petitioner's union did not pursue the matter further and did not go to arbitration under the collective bargaining agreement.

Between the Step II and Step III determinations, at the end of the 2001-2002 school year, petitioner was given an unsatisfactory rating by the principal. The rating sheet indicates more satisfactory areas of practice than unsatisfactory, but in the section entitled "Additional Remarks" the principal noted: "Substantiation of Corporal Punishment Charges [sic] (Violation of A420, Chancellor's Regulations.)" (Chancellor's Regulation A-420, regarding corporal punishment, contains this statement: "Language that belittles or subjects students to ridicule or is abusive or threatening verbal communication is a violation of this Regulation.")

In February 2004, a Chancellor's Review Committee convened to consider petitioner's appeal of his unsatisfactory rating. Petitioner, his principal, and a union representative were present, and presented testimony, oral argument, and documentary materials. With respect to the incident noted in the unsatisfactory rating, petitioner's union representative argued, among other things, that if the allegations were as serious as stated, the principal should have taken action against petitioner pursuant to Education Law �3020-a.

The Review Committee found, in its decision dated February 13, 2004:

The written documentation gave little evidence of a consistent pattern of ineffective teaching and unsatisfactory performance. The verbal testimony of the Principal did not provide sufficient evidence to substantiate the fact that the Appellant rendered a level of service as a teacher of mathematics that was other than satisfactory during the rating period. The documents do not substantiate the weaknesses noted on the rating sheet and the overall evaluation of "U" in performance. There was only one incident used to justify an "Unsatisfactory" rating; the investigation that was conducted by the Principal seemed to focus on statements that could have an ambiguous interpretation. The Appellant's satisfactory teaching skills were attested to by the Principal. There were no other incidents alleged either prior to or subsequent to the incident cited in Document 3.

It is, therefore, recommended that the appeal be sustained and the rating of "Unsatisfactory" be reversed.

(Petitioner states in his reply that he had never seen this decision until it was served on him as an attachment to respondent's answer on October 8, 2004.)

Thereafter, on August 2, 2004, the Chancellor's designee, Carmen Farina, Deputy Chancellor (Acting), Teaching and Learning, issued the final determination on petitioner's appeal: "Please be advised that the appeal of Mr. Alex Schreiber from the rating of �Unsatisfactory' for the period ending June 30, 2002, has been denied and the said rating is sustained as a consequence of a substantiated charge of corporal punishment." Petitioner states that he received this determination on August 10, 2004, by regular mail; he commenced this appeal on August 27, 2004.

Petitioner asks for a confirmation that his rights were violated by the February 15, 2002, determination that he had engaged in unprofessional and inappropriate verbal conduct, and asks that I annul the unsatisfactory rating for the 2001-2002 school year.

Respondent denies any wrongdoing on its part, and argues that the Chancellor's final determination with respect to the unsatisfactory rating was proper in all respects. Respondent further claims that I lack jurisdiction with respect to the placement of the February 15, 2002, letter in petitioner's file, and that any challenge to the retention of the letter is untimely. Respondent further argues that the petition fails to state a claim to the extent that petitioner challenges the February 15, 2002, letter as a disciplinary matter in violation of Education Law �3020-a.

With respect to the February 15, 2002, letter, petitioner, in his reply, states clearly that he is not challenging the placement of the letter in his file. Indeed, he cannot do so in this appeal, because it is clear that he elected to file a grievance pursuant to the collective bargaining agreement, and proceeded to Step III, but no further. I make no determination as to whether the letter was proper or improper (seeHolt v. Board of Educ., Webutuck CSD, 52 NY2d 625; cf., Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Irving, 39 id. 761, Decision No. 14,373). Because the grievance process has resulted in a final determination that the letter must remain in petitioner's file, I must accept it as an official school document, as did the Review Committee, and the factual statements contained in it.

With respect to the unsatisfactory rating, petitioner claims that the unsatisfactory rating was the result of the February 15, 2002, letter. He alleges: "There was no other documentation of any kind to support the unsatisfactory ratings [sic]." Respondent's answer denies that allegation, but "affirmatively states that petitioner's unsatisfactory rating is based on a substantiated charge of corporal punishment," clearly referring to the February 15, 2002, letter. Petitioner 's rating sheet, dated June 21, 2002, shows 16 satisfactory ratings, and 4 unsatisfactory ratings: professional attitude and professional growth, effect on character and personality growth of pupils, maintenance of wholesome classroom atmosphere, and attention to pupil health, safety and general welfare. In the area of pupil guidance and instruction, petitioner was rated satisfactory in 7 of 10 categories.

The standard of proof required to overturn a teacher rating is very high. In Appeal of Gordon (36 Ed Dept Rep 343, Decision No. 13,743), which also concerned a teacher rating, I wrote:

With respect to appeals challenging unsatisfactory ratings, in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his judgment for that of the Chancellor (Appeal of Bristol, 33 Ed Dept Rep 202; Matter of Taylor, 23 id. 482). Petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Marek, 35 Ed Dept Rep 314; Appeal of Nash, 35 id. 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Marek, supra; Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327).

Petitioner has established that the unsatisfactory rating he received was based on the incident described in the February 15, 2002 letter, and, indeed, the final decision by the Chancellor's designee concedes as much. However, petitioner has neither alleged nor proven that the rating was a result of malice, prejudice, bad faith, or gross error. Petitioner has also not alleged or proven that he was given an unsatisfactory rating based on a single incident, while other teachers similarly situated were not so rated. He has not claimed or shown that the Chancellor lacks the authority to base a rating on a finding of unprofessional and inappropriate comments. As a result, I have no basis for substituting my judgment for that of the Chancellor.

THE APPEAL IS DISMISSED.

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