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Decision No. 13,023

Appeal of JOCELYN BRISTOL from action of Joseph Fernandez as Chancellor of the Board of Education of the City School District of the City of New York concerning a teacher rating.

Decision No. 13,023

(October 19, 1993)

Hon. O. Peter Sherwood, Esq., Corporation Counsel, attorney for respondent, Anna H. Zetlin, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges an unsatisfactory rating assigned to him by his building principal. Petitioner requests that I change the rating to reflect an accurate assessment of his performance. The appeal must be dismissed.

On October 17, 1991, petitioner was assigned as a temporary per diem teacher to teach five high school mathematics classes. Petitioner's performance in that position was observed by the assistant principal on November 5, 1991, December 9, 1991 and January 15, 1992. The November 5 observation rated petitioner marginally satisfactory, while the latter two observations rated both lessons unsatisfactory. A review of the observation reports reveals that the assistant principal found fault in petitioner's failure to assign homework as required by school policy, as well as his failure to follow the assistant principal's instructions and advice, which were intended to make the lessons more understandable. Based upon those observations, petitioner was rated unsatisfactory by the high school principal for the period October 17, 1991 to January 31, 1992. Petitioner appealed this rating to the Chancellor who dismissed the appeal on August 21, 1992. This appeal followed.

Petitioner contends that the unsatisfactory rating sustained by the Chancellor does not reflect the achievement attained by petitioner's students during the period in which he was assigned as their instructor. Respondent, on the other hand, contends that the assistant principal's evaluations demonstrate petitioner's lack of teaching skill and disregard for school policies and routines. Respondent therefore contends that there is a rational basis for the unsatisfactory rating awarded petitioner for the period in question. Respondent also contends that the petition fails to state a cause of action. In his reply, petitioner argues that the evaluations are fabricated and constitute a personal attack on him.

In an appeal to the Commissioner, petitioner bears the burden of demonstrating merit to the appeal (Appeal of Mitzner, 32 Ed Dept Rep 403). 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 (Matter of Taylor, 23 Ed Dept Rep 482). Mere conclusory statements about an alleged lack of basis for an assigned rating do not constitute a sufficient basis to overturn that rating (Matter of Ward, 22 Ed Dept Rep 19; Appeal of Cook, 26 id. 132).

In this case, petitioner's proof consists solely of conclusory statements that the unsatisfactory rating and the observation reports upon which it is based are fabricated or otherwise improper. The student grades supplied by petitioner are not sufficient to demonstrate that respondent's observations of petitioner's performance were incorrect. Therefore, the record does not contain a sufficient basis for me to sustain this appeal. Petitioner has failed to demonstrate that the rating or the observation reports are illegal, arbitrary, capricious or irrational.