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June 18, 2015

Challenging an unsatisfactory annual performance rating



Challenging an unsatisfactory annual performance rating
2015 NY Slip Op 04589, Appellate Division, First Department

A teacher [Teacher] brought an Article 78 action against the New York City Department of Education's (DOE) challenging her annual unsatisfactory rating for the 2011-12 school year, Supreme Court dismissed the petition and Teacher appealed.

The Appellate Division sustained the Supreme Court’s ruling holding that Teacher’s unsatisfactory annual rating was not arbitrary and capricious or contrary to law.

Teacher had contended that her supervisor administered the lesson observation on which the rating was based in an arbitrary and capricious manner. The court held that this claim was not supported by the record.*

As to Teacher’s argument that the annual performance rating was made "in violation of lawful procedure" because DOE failed to follow procedural safeguards set forth in their own guidelines, in that it failed to provide her with “a written warning” that she had to improve her performance, the Appellate Division said that Teacher’s argument “lacks merit,” explaining that DOE's rating handbook did not create “any substantive right to receive a written warning” that failure to improve "may result in an unsatisfactory rating."

The Appellate Division also noted that Teacher “went on terminal leave two months after the unsatisfactory observation report,,” retiring one month later, which precluded DOE’s making a second observation which would normally have been the case.

* The court noted that Teacher’s principal's hearing testimony clarifying the reasoning behind the unsatisfactory annual rating.

The decision is posted on the Internet at:

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