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Decision No. 17,192

Appeal of M.H., from action of the Chancellor of the New York City Department of Education, regarding an unsatisfactory rating.

Decision No. 17,192

(September 22, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Benjamin Traverse, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Chancellor of the New York City Department of Education[1] (“respondent”) denying her appeal of an unsatisfactory rating and sustaining the rating.  The appeal must be dismissed.

Petitioner is a tenured teacher of mathematics employed at a high school within the City School District of the City of New York (“district”).  On June 21, 2011, petitioner received an unsatisfactory annual rating following four unsatisfactory observation reports dated October 4, 2010, March 30, 2011, June 1 and June 7, 2011.[2]

Petitioner appealed her unsatisfactory rating.  The Chancellor’s Committee Chairperson (“chairperson”) conducted a review at which petitioner was represented by an advocate from her union.  In a recommendation dated December 6, 2011, the chairperson recommended that petitioner’s appeal be denied and that the unsatisfactory rating be sustained.  On December 27, 2011, respondent adopted the chairperson’s recommendation.  This appeal ensued.

Petitioner argues that respondent’s decision was arbitrary and capricious, and that the Chancellor’s Committee review did not comport with due process.  Petitioner requests annulment of the unsatisfactory rating and that the Commissioner issue a series of orders relating to respondent’s Professional Performance Review plan (“PPR plan”) and the procedures for administrative review of ratings under such PPR plan.  Specifically, petitioner requests that the Commissioner order respondent’s Panel for Educational Policy (“PEP”) to: (1) implement §100.2(o)(2) of the Regulations of the Commissioner (8 NYCRR §100.2[o][2]) as such regulation existed at the time this appeal was commenced; (2) require that respondent’s PPR plan policy be audited to ensure compliance with such regulation; (3) revise its by-laws to ensure that employees receive due process in administrative reviews; (4) revise its by-laws to ensure that teachers are furnished with a copy of hearing panel reports in such reviews and given an appropriate time period to respond; and (5) develop written procedures to require that the decision of the Chancellor and his or her designee is appealable to the full PEP.  In addition, petitioner requests that the Commissioner order one Mr. Caputo, who is not identified in the petition or joined as a respondent in this appeal, to revise the staff manuals of the Office of Appeals and Reviews to ensure that employees and union officials are properly informed of due process procedures and are afforded due process.

Respondent contends that petitioner has failed to state a claim upon which relief may be granted and that petitioner’s unsatisfactory rating was appropriate and supported by ample evidence.  Respondent further asserts that petitioner was afforded due process in connection with the Chancellor’s Committee review process.  Respondent also argues that petitioner’s request for an order directing it to revise its PPR plan seeks declaratory relief, which is not available in an appeal pursuant to Education Law §310.

I must first address a procedural issue.  To the extent petitioner seeks orders relating to the procedures for administrative review of ratings under respondent’s PPR plan, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  I take administrative notice that respondent’s PPR plan and its procedures for administrative review of unsatisfactory teacher ratings under such plan have been superseded by the annual professional performance review (“APPR”) requirements imposed by Education Law §§3012-c and 3012-d, and that §3012-c(5-a) establishes procedures for review of ineffective ratings in the New York City School District which may be revised through collective bargaining.  Similarly, §100.2(o)(2) of the Commissioner’s Regulations has been amended and substantially replaced by Subpart 30-2 of the Rules of the Board of Regents (8 NYCRR Subpart 30-2) relating to the APPR.  Thus, petitioner’s claims seeking enforcement of 8 NYCRR §100.2(o)(2), which has been superseded by Subpart 30-2, and seeking changes to respondent’s policies and procedures relating to administrative review of unsatisfactory ratings under the PPR plan which have been superseded by the APPR, must be dismissed as moot.

Turning to the merits of petitioner’s remaining claims, 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 or her 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).

Petitioner has failed to meet her burden of proving that the unsatisfactory rating was based upon malice, prejudice, bad faith or gross error.  The record indicates that the assistant principal conducted three formal observations of a math lesson taught by petitioner as well as one walk-through evaluation.  In the October 4, 2010 observation report, the assistant principal concluded that: (1) the lesson taught did not match the lesson written on the board or prescribed in petitioner’s lesson plan; (2) petitioner posed questions in which the answers were embedded; (3) petitioner failed to implement previous recommendations, made in previous observation reports from September 2008, May 2009, and May 2010, to “engage the students by creating a physical setting that promotes teamwork”; and (4) there was no “share/summary” presentation, as observed in May 2010.

     The March 30, 2011 observation report depicted a disinterested and occasionally unruly classroom.  The assistant principal concluded that: (1) petitioner struggled with questioning techniques, asking only a single question during the class; (2) petitioner failed to “engage the students by creating a physical setting that promotes teamwork,” as recommended in four previous evaluations (including the October 4, 2010 evaluation); (3) the lesson lacked a “share/summary” portion; and (4) despite agreeing to do so, petitioner failed to administer an exit quiz which would inform the next lesson; instead, petitioner assigned the exit quiz as homework when the bell was ringing to end the class period.

In the June 1, 2011 walkthrough evaluation, the assistant principal concluded that petitioner continued to struggle with questioning techniques.  The assistant principal noted that she had provided petitioner with a document called “Asking Better Questions” in 2008, and petitioner had failed to incorporate any of the suggestions contained in that document.  The assistant principal further noted that petitioner exclusively asked the students to provide factual answers at the “lowest level of thinking” according to Bloom’s Taxonomy.

In the June 7, 2011 observation report, the assistant principal concluded that: (1) petitioner did not address or accomplish the topic of her lesson plan; (2) petitioner asked questions which fell within Bloom’s Taxonomy’s lowest level of thinking; (3) there was no student interaction; and (4) there was no share/summary component to the lesson.

Petitioner does not dispute the assistant principal’s conclusions in her petition, but argues that the observation reports were not based on “facts,” “statistics”, or “appropriate supporting data.”[3]  However, petitioner cites no legal requirement that evaluations of personnel must be based on such criteria, and I find nothing inappropriate about the procedure utilized by the district.  Additionally, petitioner has attached “rebuttal” statements to the observation reports which contest some of the assistant principal’s observations.  I have considered petitioner’s rebuttal statements and find that they do not sufficiently address or explain the deficiencies identified in the observation reports.

Additionally, while petitioner complains that she did not participate in a pre-observation conference before each observation as required by the PPR plan, I do not find that such noncompliance prohibited respondent from imposing an unsatisfactory rating based upon the observations.  Therefore, I find that the observations and conclusions of the assistant principal support the unsatisfactory rating imposed by respondent.[4]

I further find that petitioner has failed to meet her burden of proving that the administrative review process was flawed or did not comport with due process.  The record shows that, during this review, petitioner was represented by an advocate from her union, was allowed an opportunity to present testimony and evidence and was afforded an opportunity to cross-examine witnesses.  While petitioner complains that two witnesses testified by telephone, this is explicitly permitted by the district’s by-laws.  Moreover, petitioner points to no source of authority – such as a law, regulation or provision of a collective bargaining agreement – which affords a particular level of due process in connection with the Chancellor’s Committee review process.  Thus, the record demonstrates that petitioner was afforded a full and fair opportunity to appeal the principal’s unsatisfactory rating to the chairperson.

Petitioner also claims in conclusory fashion that the unsatisfactory rating was merely a “strategy” to “deal with” the fact that petitioner “was absent due to illness 23 days in the calendar year” and respondent was unable to “remove” her using medical guidelines.  This claim must be dismissed because petitioner has presented no proof to support her allegations.  Although the record reveals that respondent sustained petitioner’s unsatisfactory rating based, in part, upon the fact that she “was absent and late excessively,” respondent’s December 27 letter states that it also sustained her unsatisfactory rating “as a consequence of [petitioner’s] failure to provide her students with a meaningful education,” which was “evidenced by [the] four (4) classroom observations.”  On this record, as described above, I have upheld the unsatisfactory rating based upon the four observation reports.  Therefore, I need not consider whether or the extent to which petitioner’s absences also supported an unsatisfactory rating.

Respondent’s unsatisfactory rating is supported by the evidence in the record, and petitioner has not met her burden of proving malice, prejudice, bad faith or gross error attributable to respondent.  I have considered the parties’ remaining arguments and find them to be without merit.




[1] At the time of the determination, the Chancellor was Dennis M. Walcott.  The current Chancellor is Carmen Fariña.


[2] The June 1 observation is described in the record as a “walk-through” observation.


[3] In this regard, petitioner cites Elentuck v. Green, 202 AD2d 425, in support of her argument.  In Elentuck v. Green, the Appellate Division concluded that observation reports were intra-agency materials exempt from disclosure under the Freedom of Information Law because they “[we]re not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations.”  Petitioner’s suggestion that this case stands for the proposition that observation reports should or must contain “statistical or factual tabulations of data” is without merit.


[4] Petitioner’s reliance on Appeal of the Board of Education of the City School District of the City of New York, 28 Ed Dept Rep 302, Decision No. 12,114, is misplaced because that decision concerned charges of incompetency and neglect of duty brought against a tenured teacher pursuant to Education Law §3020-a.