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Decision No. 13,743

Appeal of ELIZABETH GORDON from action of the Board of Education of the City School District of the City of New York regarding a teacher rating.

Decision No. 13,743

(February 28, 1997)

Paul A. Crotty, Esq., Corporation Counsel, attorney for respondent, Vincent D'Orazio and James A. Costello, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges an unsatisfactory performance rating which she received for the 1994-95 school year. The appeal must be dismissed.

During the 1994-95 school year, petitioner was employed as a resource room teacher at Independent School 70, Community School District 2, in respondent's school district. By letter dated June 20, 1995, the school principal, Fay Pallen, transmitted to petitioner her Annual Professional Performance Review bearing an unsatisfactory overall performance rating for the period from September 12, 1994 to June 28, 1995. Petitioner appealed her rating to the Chancellor. By letter dated April 22, 1996, Chancellor Crew informed petitioner that her appeal had been denied "because the methodology she employed was inappropriate for use in a Special Education Resource Room and she failed to benefit from the assistance provided by the administration." This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on June 7, 1996.

Petitioner maintains that her job performance has been satisfactory and that the rating was unwarranted because her students' achievement level equaled that of the other two resource room teachers. She contends that she implemented her administrator's recommendations when criticized, but that she did not receive any direct assistance. Petitioner claims she participated in five days of intervisitation recommended by the administration and that the participating teacher found her teaching and methodology satisfactory. She argues that her negative ratings began with the appointment of Ms. Pallen as principal. She believes that the rating is in retaliation for filing discrimination charges against the district and that it is intended to force her out of the district. Petitioner asks me to change her rating from unsatisfactory to satisfactory and to enjoin respondent's alleged retaliation and harassment against her. Respondent, however, maintains that petitioner's rating was based solely on her performance as a resource room teacher and denies allegations of discrimination and retaliation.

As a threshold matter, I note that petitioner has initiated actions in other forums that are relevant to this appeal. In March 1988, petitioner filed a complaint with the Commission on Human Rights alleging that she had been denied a promotion to the position of Educational Director because of her race/color. In June 1990, she amended the complaint to include allegations that she had been denied the position of Administrative Assistant in retaliation for her charges of discriminatory practices. In September 1993, petitioner filed a complaint with the United States District Court for the Southern District of New York based on the same allegations. In March 1996, petitioner filed another Human Rights complaint charging discrimination resulting in unsatisfactory ratings. On June 27, 1996, the Commission on Human Rights administratively closed the case, noting that petitioner's complaint was based on the same grievance that was pending before the State Education Department. Therefore, because there is no action pending in another forum based on the same charges and seeking the same relief, there is no reason for me to dismiss the appeal based on an election of remedies.

The appeal, however, must be dismissed on its merits. 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). Based on the record before me, I find that petitioner has failed to establish that the unsatisfactory rating lacked a rational basis or that the rating demonstrates malice, prejudice, bad faith or gross error.

Petitioner's evaluation indicated unsatisfactory ratings in ten categories: (i) professional attitude and professional growth, (ii) resourcefulness and initiative, (iii) effect on character and personality growth of pupils, (iv) planning and preparation of work, (v) skill in adapting instruction to individual needs and capacities, (vi) effective use of appropriate methods and techniques, (vii) skill in making class lessons interesting to pupils, (viii) extent of pupil participation in the class and school program, (ix) evidence of pupil growth in knowledge, skills, appreciations and attitude, and (x) maintenance of good relations with other teachers and with supervisors. Supporting documentation for the evaluation included four formal classroom observations, all rated unsatisfactory, and a letter following the principal's visit to petitioner's classroom, in which the principal admonished petitioner for doing paperwork rather than providing instruction. At the Chancellor's review, the principal, the deputy superintendent, and the supervisor of special education testified as to petitioner's unsatisfactory performance and answered questions of a UFT Adviser who was representing petitioner. The UFT Chapter Chairperson, who is a science teacher, testified that he had reviewed a tape of one of the lessons which had been rated unsatisfactory and that he disagreed with the rating. Petitioner also submitted a summary statement in her own behalf. The Chancellor's committee found the documentation of the observations by the principal, the supervisor of special education, and the deputy director to be "consistent, knowledgeable and convincing." It found that petitioner's methodology was inappropriate for a resource room with as few as three pupils, that the assistance she was granted was adequate, and that, as an experienced teacher, she should have benefitted from the intervisitations. The committee discounted the opinion of the UFT Chapter Chairperson because he was not a licensed supervisor and because "his judgment was unlikely to be impartial."

This record clearly presents a rational basis for petitioner's rating. It is also devoid of any credible evidence of malice, prejudice, bad faith or gross error. Thus, I will not substitute my judgment for that of the local school authorities.