Friday, November 22, 2013

Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.
2013 NY Slip Op 51868(U), Supreme Court, New York County, Judge Michael D. Stallman [Not selected for publication in the Official Reports] 

A tenured teacher [Educator] at a New York City public school received an overall unsatisfactory rating (U-rating) for the school year. Educator appealed his U-rating to the Chancellor's Committee. Following hearings, the Chancellor's Committee recommended that Educator’s U-rating be sustained.

The Chief Academic Officer, as the Designee for Chancellor Dennis M. Walcott, denied Educator's appeal, stating that “the appeal of [the Educator’s] rating of Unsatisfactory' for the period … has been denied and the said rating is sustained as a consequence of [Educator's] failure to demonstrate professional growth

Educator responded by filing an Article 78 petition seeking a court order annulling the U-rating.

In the words of State Supreme Court Judge Michael D. Stallman, “The issue presented is whether [the New York City Department of Education] acted arbitrarily and capriciously in determining that [Educator] should receive an overall U-rating based on three incidents (and related unsatisfactory comments), even though [Educator] received otherwise satisfactory comments in his annual professional performance review and satisfactory ratings in all his formal classroom observations.”

The Judge Stallman said that the Chancellor's Committee found that Educator failed to follow protocol, but not for the specific reason set forth in "the disciplinary letter," i.e., that petitioner did not request a personal day two days in advance. Rather, said the court, the Committee found that Educator did not follow protocol by not reporting to the Assistant Principal of Organization that he might need a Personal Business Day the next day, even though he had informed his immediate supervisor that he might not be able to work on that day.

Further, the court found there was uncontroverted testimony that Educator's daughter suffered an illness the night before Educator's absence. Thus, said the court, Educator could not have given two days' advance notice and, therefore, the determination that Educator failed to follow school protocol was taken without regard to the facts, and thus was arbitrary and capricious.

Accordingly, said the court, Educator’s overall U-rating for the school year must be evaluated based on only two incidents and the issue presented is whether these incidents constitute a rational basis for an overall U-rating for the entire school year.

The Department of Education did not claim that criteria exists for determining whether one or two unsatisfactory comments on a teacher's annual professional performance review may justify an overall U-rating nor did the Human Resources Handbook, "Rating Pedagogical Staff Members" contain any criteria on that issue. Further, the court explained, the Department “offer no explanation as to why [Educator], who received otherwise satisfactory comments in his annual performance review and satisfactory ratings in all his formal classroom observations, warranted a U-rating for the entire school year.

Although substantiated misconduct in the workplace, such as a lack of civility in dealings with school personnel and supervisors, or insubordination, may support an overall U-rating, the Department did not contend that the incidents giving rise to the U-rating themselves were so egregious as to warrant an overall U-rating.

Judge Stallman also noted that the Chancellor's letter denying Educator’s appeal was “at odds” with the circumstances here in that Chancellor appears to fault the Educator for not having demonstrated "professional growth" while Educator’s ”U-rating for the entire year is based on three separate incidents, with no documented recurrences.” The absence of further similar, documented incidents, said the court, would suggest improvement in Educator's conduct, i.e., "growth."

While “disciplinary letters” placed in Educator's file warned Educator that "this may lead to further disciplinary action, including an unsatisfactory rating which may result in your termination," Judge Stallman ruled that “to the extent that the overall U-rating was imposed as a penalty, based on the documented incidents, the overall U-rating is so disproportionate to [Educator’s] behavior on three isolated incidents as to shock the judicial conscience,” explaining that the overall U-rating for the entire school year was given “because of one absence, one lateness, and two words.”

Judge Stallman held that the determination of the Chancellor sustaining Educator's U-rating "based on three incidents … was arbitrary and capricious” and granted Educator’s petition and annulling the U-rating.

The court said it was not remanding the matter to the Department as “Remand is not warranted because this is not a situation where the U-rating was annulled due to procedural deficiencies in the review process that are capable of being corrected upon remand.”

In his “Conclusion,” Judge Stallman said that the Department “offered no explanation as to why two incidents in the face of otherwise satisfactory ratings and satisfactory comments are sufficient to warrant an overall U-rating. The lack of an explanation under these circumstances renders the determination arbitrary and capricious and lacking a rational basis. To the extent that [Educator’s] overall U-rating was imposed as a disciplinary measure, the overall U-rating was a penalty so disproportionate to the subject incidents that it shocks the judicial conscience.”

The decision is posted on the Internet at:


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