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Wednesday, August 14, 2013

Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record

Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record
2013 NY Slip Op 05598, Appellate Division, First Department

The Appellate Division reversed a Supreme Court's ruling that dismissed a petition challenging a teacher’s annual unsatisfactory performance rating and annulled the unsatisfactory rating given the educator.

The court said that the New York City Department of Education’s [DOE] determination to sustain the unsatisfactory performance evaluation was not rationally based on administrative findings that the teacher had engaged in corporal punishment as “there was no longer any documentation substantiating an instance of corporal punishment in [the teacher’s] personnel file after the parties stipulated to the removal of two disciplinary letters from the file.”

DOE’s "Rating Pedagogical Staff Members" procedure, in pertinent part, provides:

1. That a teacher's evaluation must be supported by documentation in his/her personnel file;

2. That documentation removed from a file through grievance procedures is inadmissible in performance reviews; and

3. That documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher's file.

Further, said the court, materials placed in a teacher's personnel file must include a signature and date line for the teacher, evidencing that he or she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.

Citing Appeal of Naomi Dowrie [46 Ed Dept Rep 273, Decisions of the Commissioner of Education, Decision No. 15,506, in which the Commissioner of the New York State Department of Education upheld the petitioner's appeal from an unsatisfactory rating on the ground that the respondent had failed to follow its own procedures and had considered material that had been removed from the petitioner's personnel file through the grievance process, i.e., "materials not properly placed in [the] teacher's personal [sic] file," the Appellate Division concluded that there was no documentation in the record to support the unsatisfactory rating give the teacher in this instance.

The court also noted Mangone v Klein, a decision by a State Supreme Court justice in which the court, relying of Dowrie, denied DOE's motion to dismiss the educator’s petition seeking to set aside his unsatisfactory rating upon finding that there was nothing in the teacher's personnel file other than a disciplinary letter that had been ordered to be removed following arbitration related to the allegations against him. [Mangone was not selected for publication in the Official Reports but the decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2007/2007_32475.pdf].

The DOE decision is posted on the Internet at:  http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05598.htm
.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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