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November 15, 2016

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious


Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious
Decisions of the Commissioner of Education, Decision #16,985

Leanna Mercedes appealed the decision of the New York City Department of Education [DOE] that sustained her “D” rating on her annual professional performance review.

Mercedes, a probationary assistant principal, was given a Doubtful or “D” rating for the school year by the school’s Interim Acting Principal [Principal]. This resulted in Mercedes filing a complaint with DOE’s Office of Equal Opportunity and Diversity Management (“OEO”) alleging that Principal had unlawfully discriminated against her in giving her a “D” rating. OEO’s investigation substantiated Mercedes’ allegation that Principal had violated DOE’s non-discrimination policy as set out in DOE’s Chancellor’s Regulation A-830.  Notwithstanding OEO’s finding, DOE notified Mercedes that her appeal of her “D” rating was denied.  Mercedes appealed DOE’s decision to the Commissioner of Education.

The Commissioner said that “based on the record before me, I find that [Mercedes] has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and [her] appeal must be sustained.”

Mercedes had contended that the “D” rating [1] “violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence;” [2] the “D” rating was baseless and discriminatory; and [3] the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations. 

In rebuttal, DOE had argued that Mercedes’ petition [1] failed to state a claim upon which relief may be granted; [2] that some or all of her claims may be barred, in whole or in part, by the doctrine of res judicata; and [3] it had followed the “proper procedures” in issuing the “D” rating.

DOE also contended that its “ratings guidelines are not legally binding on the Department and that Mercedes’ “D” rating was supported by documentation.”

After addressing a number of procedural issues that were decided in Mercedes’ favor, the Commissioner noted that the Chancellor’s designee stated in his decision letter that the “D” rating was sustained "as a consequence of insufficient time to make an accurate assessment of [Mercedes’] performance." This explanation, said the Commissioner, lacks a rational basis and was in gross error.

Further, observed the Commissioner, “[t]he record is devoid of any support for [Mercedes] ”D” rating,” noting that the sole reason given for sustaining the rating is that the Interim Acting Principal had “insufficient time to accurately assess Mercedes’ performance.” However, said the Commissioner, the record indicated that despite the Interim Acting Principal’s “short time in that position,” he was able to provide a rating of “satisfactory” to two other male assistant principals. 

In any event, the Commissioner explained that “assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious” and directed DOE to remove the challenged Doubtful “D” rating for the from Mercedes' personnel file.

The decision is posted on the Internet at:

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