Friday, October 30, 2015

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious


Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious
Mendez v New York City Dept. of Educ., 2015 NY Slip Op 07599, Appellate Division, First Department

A tenured common branches teacher [Teacher] employed by the New York City Department of Education [DOE] who had received satisfactory ratings since February 2010, forfeited her tenure as a common branches teacher in order to obtain a position as a special education teacher. Appointed as a probationary special education teacher at a high school subject to the satisfactory completion of a two-year probationary period ending in September 2012, Teacher was given a satisfactory rating on her Annual Professional Performance Review for the 2010-2011 school year.

During the summer of 2011, Teacher was an “unsatisfactory rating” [U-rating] and was suspended without pay for four days based on an incident where she was found to have engaged in a loud argument with another teacher in front of students. Teacher appealed and the Chancellor's Committee held a hearing. During the course of the hearing the Superintendent Representative conceded that the four-day suspension was "inappropriate" under the terms of the relevant collective bargaining agreement and it was reversed because of the error.

After receiving a second U-rating,* Teacher was terminated from the position.

A majority of the Appellate Division, Judge Sweeny dissented in part, addressing Teacher’s U-rating for the summer of 2011, held that the U-rating “lacked a rational basis and was arbitrary and capricious.” The court said that accepting the testimony that Teacher had engaged in a loud argument with another teacher about sharing a room, there is no rational basis to find Teacher's conduct was unprofessional, insubordinate or unbecoming.

The majority, noting that the subject of the argument concerned whether Teacher's students with disabilities should share space with students that composed the art cluster or obtain a larger classroom, said that there was no evidence presented that the content of conversation itself was unprofessional. In the words of the court, “The simple conduct of an argument without more elaboration on how the subject and language of the conversation was unprofessional is insufficient to provide a rational basis for professional misconduct.”

Further, said the court, Teacher’s failure to admit that the conversation rose to the level of an argument is not evidence of insubordination.”

Turning to DOE’s termination of Teacher’s employment, the Appellate Division, citing Brown v City of New York, 280 AD2d 368, observed that it is well established that a "probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

Here, however, the court determined that Teacher had established a deficiency in the review process that resulted in Teacher’s termination that was "not merely technical, but undermined the integrity and fairness of the process" considering the fact that the record demonstrated  that Teacher had received satisfactory ratings since February 2010, “which established her professional conduct but for the alleged incident of a loud argument.”

The Appellate Division annulled Teacher's termination and the summer 2011 U-rating and then remanded the  matter to DOE for completion of its final review of the second U-rating for the 2011-2012 school year.

* Teacher’s challenge to the second U-rating for the 2011-2012 school year was premature as she had not exhausted her administrative remedies and a determination of her appeal of that rating had not yet been made at the time the petition was brought.

The decision is posted on the Internet at:

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