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Decision No. 15,506

Appeal of NAOMI DOWRIE from action of the Board of Education of the City School District of the City of New York and Joel Klein, as Chancellor, regarding a teacher rating.

Decision No. 15,506

(December 22, 2006)

James R. Sandner, Esq., attorney for petitioner, Maria Elena Gonzalez, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, attorney for respondents, Ilana A. Eck, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges an unsatisfactory rating for her teaching performance during the 2003-2004 school year.  The appeal must be sustained.

During the 2003-2004 school year, petitioner was a fourth grade teacher at Public School 219, the Kennedy-King Elementary School (“P.S. 219”).  On May 28, 2004, the parent of a student in petitioner’s class made a written complaint that petitioner had verbally abused her daughter in class prior to that date, and physically abused her daughter on May 28, 2004.  The complaint of verbal abuse was that petitioner had told the complainant’s daughter, in front of the class, that the student could not go on a field trip without her parent because petitioner did not want to be seen with her in public.

The principal of P.S. 219 reported this complaint to respondents’ Office of Special Investigations (“OSI”).  OSI in turn directed the principal to conduct an investigation of the allegations of abuse, a task which the principal delegated to the deputy principal.

In the course of that investigation, petitioner was asked to respond to the written complaint, and did so on June 4, 2004.  The deputy principal also interviewed all members of petitioner’s fourth grade class on June 4, and obtained written answers from each student to two questions: (1) whether they heard petitioner say that any of the students could not go on the May 28, 2004, class trip without having a parent with them, and (2) whether they saw petitioner push the student on the day of the class trip.  Eleven of sixteen members of the class responded in the affirmative to the first question with respect to complainant’s daughter, but only one responded that she saw petitioner push the child “a little bit.”  Four responses quoted petitioner as saying that she did not want to be seen in public with the complainant’s daughter.

On June 7, 2004, petitioner met with the deputy principal.  The deputy principal issued a letter that stated:

After a review of all the written statements, I concluded that you did commit Verbal Abuse and are in violation of Chancellor’s Regulation A-421.  I have concluded that you did not push [the student] from the bus, but rather guided her from the bus, and I therefore, conclude that you are not in violation of Chancellor’s Regulation A-420 Physical Abuse.

The deputy principal later filed a report with OSI in which she reported her conclusions and advised that her letter dated June 7, 2004, had been placed in petitioner’s file.

One week later, on June 14, 2004, the principal issued an annual professional performance review and report form pursuant to Special Circular No. 45, giving petitioner the rating of unsatisfactory for the school year.  In section 1 of that document, where the rating officer may make specific ratings on personal and professional qualities, pupil guidance and instruction, classroom or shop management, participation in school and community activities, and additional remarks, there are no ratings or comments.

Petitioner then simultaneously pursued a grievance with respect to the letter placed in her file, and an appeal of the unsatisfactory rating.  The grievance proceeded through three steps, and ultimately to arbitration, which was held on October 26, 2005.  In an opinion and award dated November 2, 2005, the arbitrator stated that the basic dispute to be decided was:

Whether the material in the file, which is the subject of the grievance, is either unfair or inaccurate within the meaning of the Agreement. 

If so, what shall be the remedy?

He then ruled that the June 7, 2004 letter should be deleted from petitioner’s file “because it is unfair and inaccurate as these terms have been defined by the parties.”  The award also stated:

This decision is based on an expedited arbitration proceeding and the ruling herein does not represent a determination of the underlying facts.  This decision shall not be cited by either party as a determination of the underlying facts.  Nor shall it preclude either party from relitigating the underlying facts.

Whether and when the June 7, 2004 letter was removed from petitioner’s file is somewhat unclear.  While both sides seem to agree that the letter was removed at some time between November 2, 2005 and March 21, 2006, petitioner also claims that the rating officer did not remove the letter and thereby remove it from further consideration.

Thereafter, the Chancellor’s designee reviewed the matter of the unsatisfactory rating and in a letter dated March 21, 2006, stated:

Please be advised that the appeal of Ms. Naomi Dowrie from the rating of “Unsatisfactory” for the period ending June 2004 has been denied and the said rating is sustained as a consequence of a substantiated allegation of verbal abuse.

There is no reference in this letter to the June 7, 2004, letter that the arbitrator had ordered removed, or to any other document.  There is no indication in the letter or in the record before me that any hearing or other meeting was conducted with respect to this review.  Petitioner states that she received this letter on March 27, 2006, and this appeal was commenced on April 25, 2006.

     Petitioner claims that once the June 7, 2004 letter was ordered removed from her file, it should have been removed by the rating officer and given no further consideration.  She argues that respondents did not comply with their own rules and regulations dealing with the removal, replacement, or amendment of documents that have been affected by the grievance process, including arbitration.  Finally, she argues that her appeal was denied on March 27, 2006 by the Chancellor’s designee in violation of the New York City Public Schools document entitled, “Rating Pedagogical Staff Members,” an appendix to Special Circular 45, based on the unfair and inaccurate letter of June 7, 2004, which was or should have been removed prior to that determination, and that no other evidence of misconduct existed in petitioner’s file to support a rating of unsatisfactory.

Respondents claim that the decision by the Chancellor’s designee was proper in all respects, and deny that it was based on the June 7, 2004 letter.  Respondents admit that the decision was not based on any record found in petitioner’s personal file, but argue that the unsatisfactory rating is supported by the report of investigation dated June 7, 2004, that the deputy principal filed with OSI, in which the deputy principal concluded that petitioner was guilty of verbal abuse. 

     It appears from the record that as of June 7, 2004, petitioner was aware of the 16 witness statements obtained from the students in her class, but there is no indication in the record that she was aware of the report the deputy principal made to OSI, dated June 7, 2004.  On June 14, 2004, petitioner was rated unsatisfactory, and presumably a copy of that rating sheet was placed in her file.  On June 15, 2004, when petitioner filed a Step 1 grievance form, she requested only the removal of the June 7 letter.  It appears that at that time, neither the witness statements nor the report to OSI were in her personal file, nor does it appear that they have ever been placed in her personal file.  If the statements and report had been in her personal file, it is reasonable to believe that petitioner’s grievance would have also sought their removal.  However, by keeping the materials out of her personal file, respondents in effect prevented petitioner from challenging them through the grievance process. 

     Petitioner argues that at the review stage on March 21, 2006, the June 7 letter should have been removed from her personal file, leaving no written record to support the rating of unsatisfactory.  In the alternative, petitioner claims that the letter may not have been removed and the reviewer wrongly relied upon it.

     Respondents state that the June 7 letter had been removed at that point, that the reviewer did not rely on it, and admit that the denial of petitioner’s unsatisfactory rating appeal was not based on any record found in petitioner’s personal file.  Instead, respondents state that the reviewer relied on the report to OSI dated June 7, 2004, which concluded that verbal abuse occurred, but was never placed in petitioner’s personal file.

     “Rating Pedagogical Staff Members,” Section I, 2. Cautions about the Files, provides, in pertinent part:

d) Where incidents or particular events have not been witnessed personally by either the Rating Officer or a member of the supervisory or administrative staff, the written record should contain evidence that an investigation was conducted and that the versions of the involved persons concerning the incident or event were taken into account before the Rating Officer drew a final conclusion as to the validity of the alleged facts.

f) The Rating Officer should remove, replace or amend documents or parts of documents which have successfully been demonstrated to be either unfair or inaccurate through the grievance procedure.

At Section I, 6.  Inadmissible Items, certain items are stated to be inadmissible at the review stage, including:

b)           Signed documents never intended for inclusion in the file.

c)           Documents or parts of documents which have been removed from the file either voluntarily or as a result of a grievance decision.

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 Gordon, 36 Ed Dept Rep 343, Decision No. 13,743; Appeal of Bristol, 33 id. 202, Decision No. 13,023; Matter of Taylor, 23 id. 482, Decision No. 11,288).  Petitioner has the burden of establishing the facts upon which she seeks relief (8 NYCRR §275.10; Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127) and the burden of demonstrating a clear right to the relief requested (Appeal of Goldin, 43 Ed Dept Rep 453, Decision No. 15,048). 

I find that petitioner has demonstrated that the determination of the Chancellor’s designee, sustaining her unsatisfactory rating, was made in gross error.  By failing to include any supporting documentation, specifically witness statements and the June 7, 2004 report to OSI, in petitioner’s personal file, respondents prevented petitioner from removing any document other than the June 7 letter through the grievance and arbitration process.  I find it illogical that petitioner should be successful in removing the only detrimental material present in her personal file, but that respondents might be allowed to use and consider materials never placed in that file and never subject to challenge.  Without the June 7 letter, the only document that should have been available for consideration on March 21, 2006, was the rating form itself, which contained no information or comments other than the unsatisfactory rating itself.

Respondents have failed to follow the dictates of their own “Rating Pedagogical Staff Members” which states at Section I, 1. Items Contained in Files, that properly maintained personal files should include:

a)              Reports of significant, positive or negative actions and activities.

b)              Descriptions of untoward incidents which have been investigated, including statements from witnesses and the employee with a conclusion by the Supervisor.

e)  Communications from parents, teachers or others dealing with incidents or matters relating to the employee’s service that are attached to a letter from a Supervisor stating his/her conclusions after an investigation was conducted.

g) Relevant and significant records which chronicle an employee’s performance or service.

     Respondents have clearly not followed their own requirements.  Where the Chancellor’s designee considers materials not properly placed in a teacher’s personal file and which are put beyond the reach of the grievance process, I find there is gross error.  Had the review been conducted in accordance with respondents’ own procedures, there would be nothing remaining in petitioner’s file that would support an unsatisfactory rating (Appeal of Raines, 45 Ed Dept Rep 21, Decision No. 15,246).

     I have considered the parties’ other contentions and find them without merit.

     THE APPEAL IS SUSTAINED.

     IT IS ORDERED that respondents remove the unsatisfactory rating for the 2003-2004 school year from petitioner’s file.

END OF FILE