Appeal of VICTOR GATHERS from action of the New York City Department of Education regarding reinstatement.

Appeal of VICTOR GATHERS from action of the Chancellor of the New York City Department of Education and Deputy Superintendent Timothy Lisante regarding an unsatisfactory rating.

Decision No. 16617

(June 20, 2014)

Zachary W. Carter, Corporation Counsel, attorney for respondents, Pinar Ozgu, Esq., of counsel

KING, JR., Commissioner.--Petitioner initiated two appeals from various actions of the New York City Department of Education and district staff relating to his employment as an assistant principal. The appeals have been consolidated and must be dismissed.
Gathers I

In the first appeal, petitioner seeks reinstatement by the New York City Department of Education (“DOE”) to his former 12-month supervisory employee position after disciplinary charges preferred against him were dismissed and DOE reinstated him to a 10-month per year assistant principal position.

Petitioner, a tenured employee, served as assistant principal at DOE’s Vocational Training Center,1 a 12-month per year position, during the 2006-2007 school year. In November 2006, DOE preferred disciplinary charges against petitioner pursuant to Education Law §3020-a. Petitioner was suspended with pay during the disciplinary proceeding.2 Beginning July 1, 2007, DOE paid petitioner as a 10-month employee rather than a 12-month employee. By decision dated February 1, 2008, the hearing officer dismissed the Education Law §3020-a disciplinary charges preferred against petitioner.

According to DOE, while petitioner’s Education Law §3020-a disciplinary proceeding was pending, his assistant principal position was eliminated due to the reorganization of the Vocational Training Center. Therefore, effective May 1, 2008,3 petitioner was placed in an alternative supervisory position in a district office performing administrative duties, a 10-month position.

After the Education Law §3020-a disciplinary charges against him were dismissed, petitioner’s union filed a grievance regarding his assignment to a 10-month position rather than a 12-month position, as well as his payment of a 10-month salary, beginning July 2007, rather than a 12-month salary. On April 30, 2010, the arbitrator issued an opinion and award, denying the grievance. This appeal ensued.

Petitioner asserts that his placement in a 10-month position is not in compliance with Education Law §3020-a(4)(b) which states, in relevant part: “If the employee is acquitted he or she shall be restored to his or her position....” He seeks to be restored as a “12-month supervisory employee.” He also seeks back salary for a 12-month position rather than a 10-month position, with interest, beginning with the 2006–2007 school year through the 2009-2010 school year, and appropriate payments to his pension.

DOE argues that the appeal is untimely and fails to state a cause of action. DOE also argues that petitioner does not have standing to bring the appeal because he was not a party to the arbitration. Finally, DOE asserts that its actions were lawful, proper and reasonable.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner was placed in a 10-month position beginning May 1, 2008,4 and the grievance opinion and award was issued by the arbitrator on April 30, 2010. I note that, at the grievance hearing, petitioner’s union raised the issue of whether Education Law §3020-a(4)(b) requires that petitioner be placed in a 12-month position. The arbitrator, however, ruled that he did not have authority to review this issue, stating that it was external to the contract and that “[R]emedies based on Section 3020-a concerning implementation of Arbitrator Tillem’s Award [the Education Law §3020-a hearing decision] are to be pursued in other forums, be it before the Commissioner of Education or through review by a court of competent jurisdiction.” This statement put petitioner on notice that he could appeal to the Commissioner of Education as to whether placement in a 10-month position after dismissal of the §3020-a charges complied with Education Law §3020-a(4)(b).

Petitioner’s initial petition is dated January 18, 2011. By letter dated January 28, 2011, my Office of Counsel returned the petition because it did not comply with Commissioner’s regulations in that it did not include proof of service of the notice and petition upon DOE. Thereafter, petitioner refiled the petition with an affidavit of service indicating that respondent was served on February 11, 2011, more than eight months after the issuance of the grievance opinion and award. Although petitioner was informed in that arbitration decision that he could initiate an appeal regarding compliance with Education Law §3020-a(4)(b), he did not do so for eight months. Petitioner sets forth no excuse for the delay in initiating the appeal nor does he address respondent’s affirmative defense of timeliness in his verified reply. Accordingly, the appeal must be dismissed.

Gathers II

In the second appeal, petitioner challenges actions of the Chancellor of the New York City Department of Education (“Chancellor”), and Deputy Superintendent Timothy Lisante (“Lisante”) (collectively “respondents”) in rating him unsatisfactory for his performance as an assistant principal during the 2009-2010 school year.

As noted above, during the 2009-2010 school year, petitioner was a tenured assistant principal assigned to perform administrative duties at DOE’s District 79 office. For the first half of the school year, petitioner’s assignment included analyzing survey data and making recommendations based on his review; preliminary strategic planning relating to “AP goals and objectives” for the year; strategic planning for student organizations, Career and Technical Education (“CTE”) referrals and student monitoring; and implementation planning for one of the above three strategic planning initiatives.

On January 13, 2010, the executive director of student support and the chief of staff met with petitioner to discuss areas of concern regarding his performance during the first half of the school year. These concerns were documented in a letter dated March 8, 2010 which stated that petitioner’s work lacked depth and breadth; that petitioner had an inadequate understanding of strategic planning and assessment and that petitioner’s proposals, such as one for student organizations, were “insufficient to support successful implementation in the field.” The letter set forth specific examples of petitioner’s work under each area of concern.

During the second half of the school year, petitioner was assigned to work under Lisante and was directed to prepare attendance improvement plans for the district’s Community Prep and Restart Programs. Petitioner was also responsible for observing teachers and preparing class observation reports. On May 10, 2010, Lisante emailed petitioner stating that the “observation write-ups that you have submitted so far have not given robust recommendations.” The email went on to state that “your written comments lack depth and do not meet expectations of instructional supervisors in our Network.” The email also made suggestions as to how petitioner could improve the quality of the class observation reports.

On June 15, 2010, Lisante met with petitioner to review his attendance improvement plans. The meeting was documented in a letter dated June 17, 2010 which stated that petitioner’s analysis lacked depth and comprehensiveness. It also noted that, despite the fact that a core principle of strategic planning is the application of data to develop strategy, petitioner’s work “never disaggregated targeted groups of students.” The letter also criticized petitioner for providing “general recommendations that most likely have been attempted by both programs.” Lisante also found that petitioner’s “program descriptions were inaccurate and contained typographical errors” and that the attendance plan, along with the “below average teacher observation recommendations as cited in my May 10, 2010 email (attached), constitute unsatisfactory professional leadership.” The letter concluded with a warning to petitioner that his “below expectations performance” identified in the letter may lead to an unsatisfactory rating.

On June 27, 2010, petitioner received an unsatisfactory annual rating on his pedagogical supervisory personnel report for the 2009-2010 school year. Petitioner appealed the unsatisfactory rating to DOE’s Office of Appeals and Review (“OAR”). A hearing was held by the Chancellor’s Review Committee (“committee”) on January 11, 2011. Petitioner and Lisante testified at the hearing and submitted documentation which included the above-noted March 8 and June 17, 2010 letters, as well as the May 10, 2010 email. The committee chairperson recommended that the appeal be denied and the unsatisfactory rating be sustained. By letter dated March 10, 2011, DOE’s Chief Academic Officer and Senior Deputy Chancellor Shael Polakow-Suransky, as designee for the Chancellor, denied petitioner’s appeal and sustained the unsatisfactory rating. This appeal ensued. On April 20, 2011, petitioner’s request for interim relief was denied.

Petitioner asserts that the unsatisfactory rating is improper because the original pedagogical supervisory personnel report/rating was “replete with spelling and grammatical errors” and a false and incorrect report/rating form was presented at the January 11, 2011 hearing; he was never assigned supervisory goals for the 2009-2010 school year; Lisante only began supervising petitioner beginning in February 2010; he was improperly assigned to District 79’s office from September 2009 until January 2010; and he was improperly assigned to work under the director of student support from September 2009 through December 2009. Petitioner also alleges that Lisante and the district superintendent “seem to be conducting a vendetta” against him because, in February 2008, petitioner received a favorable decision after an Education Law §3020-a disciplinary hearing in which Lisante had initiated the charges against him. Petitioner seeks to have his rating changed to “satisfactory.”

Respondents argue that the petition fails to state a cause of action, that petitioner failed to satisfy his burden of proof and that their actions were reasonable and in all respects lawful.

I will first address the procedural issues. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as against Lisante. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. The record before me contains no evidence of personal service upon Lisante. Consequently, all claims against him are dismissed.

Turning to the merits, the standard of proof required to overturn an unsatisfactory rating is very high (Appeal of Iheagwam, 50 Ed Dept Rep, Decision No. 16,191; Appeal of Farrell, 45 id. 224, Decision No. 15,308; Appeal of Schreiber, 44 id. 393, Decision No. 15,209). 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 Iheagwam, 50 Ed Dept Rep, Decision No. 16,191; Appeal of Rosa, 47 id. 463, Decision No. 15,755; Appeal of Dowrie, 46 id. 273, Decision No. 15,506). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In this case, petitioner has not established that his unsatisfactory rating was a result of malice, prejudice, bad faith or gross error. Petitioner states that he did not receive supervisory goals for the 2009-2010 school year. However, the record indicates that respondents clearly articulated the assignments that they expected petitioner to complete during the 2009-2010 school year; that these assignments were given to petitioner based on his previous experience; and that he was provided assistance to complete those tasks. Indeed, the March 8, 2010 letter from the director of student support to petitioner recaps the assignments that had previously been given to petitioner and reflects that, beginning in October 2009, the director met with petitioner weekly or biweekly regarding his assigned tasks. The record also indicates that Lisante held monthly meetings with petitioner regarding his assignments during the spring 2010 semester pertaining to attendance improvement and classroom observations. Petitioner’s claim, therefore, is not supported by the record and provides no basis for overturning his unsatisfactory rating.

Nor do I find that the presence of spelling and grammatical errors in petitioner’s evaluation report/rating form constitutes evidence of malice, bad faith or gross error with respect to the unsatisfactory rating. Additionally, petitioner makes no showing that he was prejudiced by the slightly different version of the evaluation report that was submitted as part of his appeal to OAR.5

Petitioner complains that his pedagogical supervisory personnel report was completed by Lisante, under whom he had worked for only four months. However, Lisante attached to his pedagogical supervisory report the March 8, 2010 letter prepared by the director of student support which provided information about petitioner’s performance over the first half of the school year. Petitioner has not demonstrated that Lisante failed to consider that information when making his rating determination. Moreover, all relevant documentation covering the entire 2009-2010 school year was submitted for review at petitioner’s OAR hearing. Therefore, when Lisante completed and signed petitioner’s report and rating, it reflected petitioner’s work and performance for the entire 2009-2010 school year.

Petitioner also asserts, as a basis for his appeal, that he was “improperly assigned to the Director of Student Support (Civil Servant)....” Respondent denies that assertion. The petition contains only a conclusory allegation and an email authored by petitioner in which he refers to “improper supervision by ‘management titled’ personnel.” In any event, as noted above, it was Lisante who completed petitioner’s evaluation report and rating. In doing so, Lisante’s consideration of information provided by all relevant sources, including the director of student support, was not improper.

Petitioner contends that he serves as an “Assistant Principal – Administration/H.S.,” a school based title, and should not have been assigned to a district office for the first part of the 2009-2010 school year. Respondents deny petitioner’s claim and state that petitioner was properly assigned to a supervisory position. Other than his bare assertion, petitioner provides no further elaboration or clarification in the petition to support his claim. He has not demonstrated that the duties he was assigned were inappropriate for his title, albeit located in a district office. Thus, petitioner failed to meet his burden.

Upon review of the entire record, I cannot conclude that respondents’ determination to rate petitioner unsatisfactory was based in malice, prejudice, bad faith or gross error. Petitioner’s claims are either unsupported in the record or provide no basis for overturning his unsatisfactory rating. Moreover, the record establishes that there were deficiencies in petitioner’s performance, as documented in letters and emails to him, such as: certain recommendations based on data analysis were inadequate; his work in some instances lacked depth and breadth; draft classroom observation reports did not meet expectations and required revision; his attendance improvement project data analysis lacked disaggregated student data necessary to plan strategy; and in some instances he demonstrated an inadequate understanding of strategic planning and assessment.

Finally, I note that petitioner submits a notice of his acceptance into DOE’s Principal Candidate Pool, apparently enabling him to apply for specific principal positions in the district. However, that notice merely demonstrates that petitioner had thus far successfully participated in the initial application process; additional eligibility requirements had yet to be submitted. Moreover, such acceptance is not dispositive with respect to the adequacy of his performance during a specific school year.

Based on the totality of the record, petitioner failed to establish the facts upon which he seeks relief and failed to meet his burden of proving that the unsatisfactory rating assigned to him was the result of malice, prejudice, bad faith, or gross error. Accordingly, on this record, I will not substitute my judgment for that of the Chancellor.

In light of the above dispositions, I need not address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

1 Petitioner refers to his former position as “Director of Adult Education.”

2 I note that the record contains several dates as to when petitioner’s suspension began. The April 30, 2010 opinion and award in a grievance brought by the Council of Supervisors and Administrators of the City of New York (“grievance opinion and award”) states that petitioner was suspended beginning September 2006. The petition herein states that he was “removed” in February 2006. DOE, however, submits petitioner’s employee profile which indicates that petitioner was suspended with pay beginning November 10, 2006.

3 DOE states that petitioner was placed in an alternative supervisory 10-month position in District 79’s District Office beginning March 2008; however, both petitioner and a subsequent grievance opinion and award state that petitioner did not start such employment until May 1, 2008.

4 See footnote 3.

5 On July 1, 2010, petitioner returned his evaluation form to Lisante stating that it had many omissions. Subsequently, Section B of the form was revised to include petitioner’s absence record.

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