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Wednesday, September 30, 2015

Failing to follow the established procedures for conducting annual employee performance rating undermines the integrity and fairness of the process


Failing to follow the established procedures for conducting annual employee  performance rating undermines the integrity and fairness of the process
Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, Appellate Division, First Department

Juanita Murray, a school social worker employed by the New York City Department of Education [DOE] petitioned Supreme Court to annul the unsatisfactory performance rating and the denial of her appeal of that rating for the 2010-2011 school year. Supreme Court granted DOE’s motion to dismiss
Murraypetition and Murrayappealed.

The Appellate Division unanimously reversed the lower court’s decision, on the law, granted Murray’s petition to the extent of annulling the U-rating.

Murray’s principal, Robert Mercedes, had rated her unsatisfactory in seven categories in her 2010-2011 Annual Professional Performance Review:  attendance and punctuality; professional attitude and professional growth; resourcefulness and initiative, where he wrote that she lacked initiative and growth; analysis and interpretation of assessment data; translates assessment findings into educationally relevant goals and objective; appropriateness and flexibility of counseling approaches; and submitting assessment reports.

Noting the Murray, as was her right under the parties' collective bargaining agreement, appealed her U-rating to the Chancellor of the DOE the court said that although both Murray and Mercedes testified at the hearing, no transcript was included in the record. The court said the DOE respondents “rely on the report of the hearing issued by the Chancellor's Committee, which described the parties' arguments, made findings of fact, and recommended that the U-rating be sustained.”

Having exhausted her administrative remedies, Murrayfiled a timely CPLR Article 78 petition challenging the U-rating given her in its entirety, contending that DOE had not adhered to its own procedures nor to the relevant procedures set out in the relevant collective bargaining agreement. On this point the Appellate Division, citing DOE Special Circular No. 45, observed that “as a pedagogical employee, [Murray] was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement.”

Also of “great concern” the Appellate Division was the fact that an in-discipline supervisor did not critique Murray's work as required by the collective bargaining agreement and in the absence of a transcript of the Chancellor's Committee hearing, it only had the statements Murray’s made in her underlying papers and again on appeal, that Principal Mercedes admitted to not having the experience or qualifications to evaluate her without input from the in-discipline supervisor prior to asking Murray for certain documents. Further, the court said that there was no evidence that Murraywas notified before the end of the school year in June 2011 that her work was considered unsatisfactory.

The court said that “The record is clear that [Murray] was deprived of her substantial rights in the review process culminating in her U-rating when measured against the methodology followed in other such case, citing Cohn v Board of Education, 102 AD3d 586. The Appellate Division found that “the instant record does not show that [Murray] was provided with support, or formal constructive criticism, of any kind.” Indeed, the court said that the DOE respondents “have not demonstrated by competent proof that they gave [Murray], who was tenured, any feedback of any kind.”

In the words of the Appellate Division, “… the complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, ‘undermined the integrity and fairness of the process’." 

Accordingly, the Appellate Division reversed the ruling of the Supreme Court and granted Murray’s petition to the extent of annulling the U-rating.

The decision is posted on the Internet at:

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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