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:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04589.htm

Discourteousness, refusal to follow directives and failure to accept work assignments lead to employee’s dismissal from the position

Discourteousness, refusal to follow directives and failure to accept work assignments lead to employee’s dismissal from the position2015 NY Slip Op 04746, Appellate Division, First Department

The New City Commissioner of Police Commissioner terminated the services of a civilian employee [Petitioner] of Police Department after she was found guilty of a number of disciplinary charges.

The Appellate Division sustained the Commissioner’s decision.

The court said that substantial evidence supported the determination that Petitioner had engaged in numerous acts of misconduct, including:

1. Discourteousness to coworkers and supervisors;

2. Refusal to follow the directives of her supervisors; and

3. Failure to accept appropriate work assignments.

Although Petitioner contends that the uniformed police personnel were hostile to her because of her union activities, she admitted making some of the charged statements and refusing to accept work assignments.

The Appellate Division also observed that “The record reflects that testimony of a civilian employee also supported some the allegations of misconduct.”

Finding no basis to disturb the credibility determinations of the Hearing Officer, the court said that the penalty of termination did not shock its sense of fairness in view of the number of incidents involved, and given Petitioner's prior disciplinary record.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04746.htm

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Inappropriate sexual relationship with a minor

Inappropriate sexual relationship with a minor

OATH Index No. 1227/15.

Administrative Law Judge Alessandra F. Zorgniotti found that a correction officer had engaged in an inappropriate relationship with a minor. She did not credit respondent's testimony than he thought the minor was 18 years old, because it was contradicted by more credible testimony from the girl, her mother and her step-father, who testified that the step-father than told respondent that the girl was 16 and that he should leave her alone.

Due to respondent's law enforcement status, his actions of pursuing a 16-year girl, taking her places without her parents' knowledge and against their express wishes, and engaging in sexual contact with her bore a nexus to his job. Termination of employment was recommended.  

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-1227.pdf

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