The absence of the individual who rated the employee unsatisfactory from the administrative hearing may be cured by the testimony of a superior who also observed and rated the employee’s performance
2015 NY Slip Op 03787, Appellate Division, First Department
Supreme Court denied a teacher’s [Teacher] petition seeking to annul the appointing authority’s sustaining unsatisfactory rating given Teacher for the school year in question.
Teacher appealed but the Appellate Division affirmed the lower court’s determination.
Teacher had contended that the appointing authority had “violated Department of Education Bylaw §4.3.3,” alleging that the assistant principal responsible for three of the four unsatisfactory observation reports was not present at the administrative hearing at which Teacher had challenged the performance rating he had received.
The Appellate Division first addressed a procedural issue – was Teacher’s complaint with respect to the absence of the assistance principal from the hearing ripe for the court’s review. It decided that Teacher’s claim regarding the absence of the assistant principal “was unpreserved” as Teacher did not raise this issue before the agency, citing Seitelman v Lavine, 36 NY2d 165 and thus could not be considered in this appeal.
Not withstanding the rejection of Teacher’s challenge on procedural grounds, the court said that regardless of the failure of Teacher to preserve the matter for the purpose of appeal, the record showed that the appointing authority’s determination had a rational basis as it was supported by the testimony of the school principal, who conducted a formal observation of Teacher’s performance and reached the same conclusions as the assistant principal.
The decision is posted on the Internet at: