In the Matter of Diane Mendez, Respondent,v.New York City Department of Education, et al., Appellants.BriefN.Y.October 19, 2016 Supreme Court, New York County To be argued by Index No. 159047/12 EMMA GRUNBERG NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of DIANE MENDEZ, Petitioner-Appellant, -against- NEW YORK CITY DEPARTMENT OF EUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents-Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. BRIEF OF THE RESPONDENTS ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007. (212) 356-0841 or -0827 KRISTIN M. HELMERS EMMA GRUNBERG Of Counsel October 7, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES……………………………………………..…….…iii PRELIMINARY STATEMENT …………………………………………………..1 QUESTIONS PRESENTED……………………………………………………….2 STATEMENT OF FACTS …………………………………………..…………….3 A. Petitioner’s Unsatisfactory Ratings and Discontinuance of Probationary Service…………………………………...……………..3 B. Article 78 Proceeding…………………………………………………5 DECISION BELOW……………………………………………………………….7 ARGUMENT…………………………………………………………………….....7 POINT I PETITIONER HAS NOT ESTABLISHED THAT THE SUMMER 2011 U-RATING WAS ARBITRARY AND CAPRICIOUS OR MADE IN BAD FAITH……………………………………...……..7 POINT II PETITIONER’S CHALLENGE TO THE 2011- 2012 U-RATING IS PREMATURE, BECAUSE SHE HAS NOT EXHAUSTED HER ADMINISTRATIVE Page - ii - REMEDIES………………………………………...….11 POINT III PETITIONER HAS NOT SHOWN THAT HER TERMINATION WAS IN BAD FAITH………………………………………..….12 CONCLUSION……………………………………………………………….…..18 PRINTING SPECIFICATION STATEMENT…………………………………...19 iii TABLE OF AUTHORITIES CASES Andersen v. Klein, 50 AD3d 296 (1st Dept. 2008) .................................................11 Arrocha v. Bd. of Educ., 93 NY2d 361 (1999) .......................................................... 7 Austin v. Bd. of Educ., 280 AD2d 365 (1st Dept. 2001) ........................................... 9 Brown v. Board of Educ., 89 AD3d 486 (1st Dept. 2011) ......................................17 Brown v. Ristich, 36 NY2d 183 (1975) ..................................................................... 9 Cohn v. Bd. of Educ., 102 AD3d 586 (1st Dept. 2013) ...........................................16 Cove v. Sise, 71 NY2d 910 (1988) ............................................................................ 9 Duncan v. Kelly, 9 NY3d 1024 (2008) ....................................................................12 Files v. Dept. of Educ., 118 AD3d 624 (1st Dept. 2014) ........................................13 Frasier v. Bd. of Educ., 71 NY2d 763 (1988) ..........................................................12 Johnson v. Katz, 68 NY2d 649 (1986) ....................................................................13 Kolmel v. City of New York, 88 AD3d 527 (1st Dept. 2011) ......................... 14, 15 Kroboth v. Sexton, 160 AD2d 126 (1st Dept. 1990) ...............................................15 Matter of Hazeltine v. City of New York, 89 AD3d 613 (1st Dept. 2011) .............12 Matter of Leo v. New York City Dept. of Educ., 100 AD3d 536 (1st Dept. 2012) .............................................................. 11, 13, 14 Mid-State Mgt. Corp. v. New York City Conciliation and Appeals Bd., 112 AD2d 72 (1st Dept. 1985), aff’d, 66 NY2d 1032 (1985) ............................... 8 Morgan v. Safir, 281 AD2d 376 (1st Dept. 2001), appeal dismissed, 97 NY2d 601 (2001). ..............................................................13 Murnane v. Dept. of Educ., 82 AD3d 576 (1st Dept. 2011) ...................................... 8 Olsson v. Bd. of Higher Educ., 49 NY2d 408 (1980) ............................................... 8 Pell v. Bd. of Educ., 34 NY2d 222 (1974) ................................................................. 8 Cases Pages iv Porter v. New York City Hous. Auth., 42 AD3d 314 (1st Dept. 2007) .................... 9 Richards v. Bd. of Educ., 117 AD3d 605 (1st Dept. 2014) .............................. 14, 16 Rivers v. Bd. of Educ., 66 AD3d 410 (1st Dept. 2009) ...........................................14 Venes v. Community School Bd., 43 NY2d 520 (1978) .........................................12 Wilborn v. Starr, 59 AD2d 785 (1st Dept. 1977) ....................................................15 Witherspoon v. Horn, 19 AD3d 250 (1st Dept. 2005) .............................................13 REGULATIONS N.Y. Admin. Proc. Act. § 306 .................................................................................... 9 NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of DIANE MENDEZ, Petitioner-Appellant, -against- NEW YORK CITY DEPARTMENT OF EUCATION; DENNIS WALCOTT, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents-Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. BRIEF OF THE RESPONDENTS PRELIMINARY STATEMENT Petitioner-Appellant Diane Mendez (“Petitioner”), a probationary special education teacher at a Bronx high school, received an unsatisfactory rating (“U-rating”) for Summer 2011 based on an incident of unprofessional conduct wherein she engaged in a shouting match with another teacher in front of her students and was insubordinate to a school administrator when questioned about the incident. Petitioner also received a U-rating for the 2011-2012 school year based on another incident of misconduct and an unsatisfactory performance observation report. As a result, her probationary status was terminated. The 2 Supreme Court properly denied Petitioner’s Article 78 petition challenging the U- ratings and the termination, determining that although Petitioner presented her own account of the Summer 2011 incident at her appeal hearing, the hearing officer was entitled to give more weight to the school administrators’ account. The Supreme Court also properly dismissed as premature Petitioner’s challenge to her U-rating for the 2011-2012 school year. Finally, the Supreme Court properly determined that Petitioner’s termination was not in bad faith, as the fact that the 2011-2012 U- rating was based in part on an informal rather than a formal observation was insufficient to establish that the disciplinary process was arbitrary or unfair. QUESTIONS PRESENTED 1. Did the Supreme Court correctly determine that Petitioner’s Summer 2011 U-rating had a rational basis and was not made in bad faith? 2. Did the Supreme Court correctly dismiss Petitioner’s challenge to her 2011-2012 U-rating as premature? 3. Did the Supreme Court correctly determine that Petitioner’s termination was not made in bad faith or contrary to law? 3 STATEMENT OF FACTS A. Petitioner’s Unsatisfactory Ratings and Discontinuance of Probationary Service. Petitioner was employed by Respondents New York City Department of Education (“DOE”) as a probationary special education teacher at P.S. X017, a Bronx high school (Petition ¶ 14; R14, 73). 1 She was appointed in September 2010, and her probationary period was two years (Petition ¶ 14; R14, 73). She had previously been a common branches teacher, and she forfeited her tenured status in common branches when she switched licenses to special education (Petition ¶ 12- 13; R13-14). Petitioner received a satisfactory rating on her Annual Professional Performance Review (“APPR”) for the 2010-2011 school year (R29-30). While working during the Summer 2011 period, Petitioner was disciplined for an incident of professional misconduct (Petition ¶ 9; R13).2 She and another teacher had a loud argument in front of their students on August 2, 2011 (Hearing Transcript (“Hearing Tr.”) 14, 19; R53, 58). Assistant Principal Jacqueline Colon heard yelling and went to the scene of the argument; she reported 1 Numbers in parentheses preceded by the letter “R” refer to pages in the Record on Appeal. 2 DOE originally suspended Petitioner for four days without pay as a result of the incident, but later restored her pay because the suspension was not permitted under Petitioner’s contract (Hearing Transcript (“Tr.”) 7-8; R46-47). 4 what she saw to Principal Robin Cohen (Hearing Tr. 14-15; R53-54). When questioned by Assistant Principal Colon about the incident, Petitioner was confrontational and told her, “I don’t care if you’re the president of the United States” (Hearing Tr. 23; R62). Petitioner received a U-rating for the Summer 2011 period based on this incident (R27). The Chancellor’s Committee held a hearing on June 7, 2012 (Hearing Tr. 1, R40). Petitioner was represented by union counsel (Hearing Tr. 1; R40) and she gave her account of the events of August 2 (Hearing Tr. 18-25; R57- 64). Petitioner’s counsel cross-examined Principal Robin Cohen (Hearing Tr. 9- 11, 14-15; R48-50, 53-54) and Susan Holtzman, a representative for the superintendent (Hearing Tr. 11-13; R50-52). In addition, Petitioner introduced into evidence a document signed by three school staff members stating that the allegations against her were false (Hearing Tr. 17; R56, 160). Petitioner’s counsel did not call these staff members as witnesses at the appeal hearing, nor were they present at the hearing (Hearing Tr. 1-31; R40-70). Petitioner’s counsel made a closing argument emphasizing Petitioner’s clean record and noting that Petitioner is “loud and maybe a little misunderstood” (Hearing Tr. 26-30; R65-69). Petitioner’s appeal was denied and her U-rating upheld on September 19, 2012 (Petition ¶ 11; R13). 5 Petitioner also received a U-rating on her APPR for the 2011-2012 school year (R73-74). She was rated unsatisfactory in multiple categories, including “professional attitude,” “planning and preparation of work,” and “maintenance of good relations with other teachers and with supervisors” (R73).3 The end-of-year U-rating was based on an April 5, 2012 informal observation of her teaching, which resulted in an unsatisfactory rating, as well as letters of misconduct referencing an instance of unprofessional conduct that occurred in January 2012 (R74).4 Principal Cohen recommended denial of certification of completion of probation (R74). On June 27, 2012, Petitioner was advised of the termination of her probationary service (Petition ¶ 15; R14). The petition did not allege that Petitioner appealed the 2011-2012 U-rating (R11-18). B. Article 78 Proceeding. Petitioner commenced this Article 78 proceeding by Notice of Petition filed December 19, 2012 (R8-9) and Verified Petition sworn to on December 19, 2012 (R11-19). The petition requested in part that the court reverse Petitioner’s U- 3 Petitioner’s assertion that the 2011-2012 APPR was completed “in an arbitrary manner by rating her unsatisfactory in every category” is inaccurate (Appellant’s Brief (“App. Br.”) 13). Petitioner was ranked “satisfactory” in 12 categories and “unsatisfactory” in 11 categories (R73). 4 Petitioner was also formally observed on November 23, 2011 (R162-65). That observation resulted in a satisfactory rating, but Petitioner received unsatisfactory scores in several pedagogical categories (R163). 6 ratings, discontinuance, and denial of certification of completion of probation (R18). Specifically, Petitioner argued that her 2011-2012 U-rating was insufficient because she did not receive a formal observation (Petition ¶ 21-24; R15-16), because the APPR did not “key” supporting documentation for each area characterized as unsatisfactory (Petition ¶ 25-26; R16), and because she alleged that DOE did not provide her with sufficient training throughout the year (Petition ¶ 27-28; R16-17). DOE cross-moved to dismiss the petition on March 29, 2013, on the grounds that it failed to state a cause of action and that Petitioner failed to exhaust her administrative remedies (R149-150). DOE filed a supporting memorandum of law on March 29, 2013. Petitioner submitted an affidavit in opposition to DOE’s cross-motion to dismiss on June 19, 2013 (P151-58). Petitioner related her account of the events on August 2, 2011 (Petitioner’s Affidavit (“Pet. Aff.”) ¶ 2-18; 152- 54) and attached the statement from the three staff members submitted at the administrative hearing (R160). Petitioner stated in the affidavit that, while her appeal of the 2011-2012 U-rating was heard on February 4, 2013, no administrative decision had been rendered as of the date of the affidavit (Aff. ¶ 20; R155). DOE submitted a reply memorandum in further support of its cross-motion to dismiss. 7 DECISION BELOW The Supreme Court denied the petition and granted DOE’s motion to dismiss on December 4, 2013 (R5-7). The Court dismissed Petitioner’s challenge to the 2011-2012 U-rating as premature, as Petitioner had not exhausted the administrative review process (R7). The Court found Petitioner’s argument that the hearing officer did not give sufficient weight to the statement she submitted from alleged eyewitnesses to be “unavailing,” as Petitioner’s disagreement “with the final decision is not evidence of bad faith” (R6). ARGUMENT POINT I PETITIONER HAS NOT ESTABLISHED THAT THE SUMMER 2011 U-RATING WAS ARBITRARY AND CAPRICIOUS OR MADE IN BAD FAITH An administrative determination made in the exercise of an agency’s broad discretionary powers is subject to very limited judicial review. See Arrocha v. Bd. of Educ., 93 NY2d 361, 363 (1999). It is well-settled that “a court may not substitute its judgment for that of a board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion.” 8 Pell v. Bd. of Educ., 34 NY2d 222, 232 (1974) (citation omitted) (emphasis original). “Even though the court might have decided differently were it in the agency’s position, the court may not upset the agency’s determination in the absence of a finding, not supported by this record, that the determination had no rational basis.” Mid-State Mgt. Corp. v. New York City Conciliation and Appeals Bd., 112 AD2d 72, 76 (1st Dept. 1985), aff’d, 66 NY2d 1032 (1985). This is especially true in the area of education, because the evaluation of a pedagogue’s performance requires specialized knowledge and experience. See, e.g., Olsson v. Bd. of Higher Educ., 49 NY2d 408, 413 (1980) (“This judicial reluctance to intervene in controversies involving academic standards is founded upon sound considerations of public policy”). Thus, to vacate a U-rating, a petitioner must show that it was “arbitrary or capricious or made in bad faith.” Murnane v. Dept. of Educ., 82 AD3d 576, 576 (1st Dept. 2011). In other words, the determination must lack a rational basis. Id. Where there is evidence to rationally support a U-rating, that rating must be upheld. See id. In this case, Petitioner’s U-rating for Summer 2011 was based on an incident of unprofessional conduct: a shouting match that occurred between Petitioner and another teacher in front of their students (Hearing Tr. 12, 14-16; R51,53-55). Petitioner was insubordinate to Assistant Principal Colon when 9 questioned about the incident (Hearing Tr. 23; R62). Principal Cohen, the rating officer who testified at the hearing, spoke to two eyewitnesses about the incident: Assistant Principal Colon and another teacher (Hearing Tr. 14-15; R53-54). Petitioner’s assertion that the shouting match “never happened” but was “merely” a “discuss[ion] of inconsistent information,” citing to her own testimony at the appeal hearing (App. Br. 10-11), is insufficient to establish that the U-rating had no rational basis. See Cove v. Sise, 71 NY2d 910, 912 (1988). This Court may not substitute its judgment for that of the DOE in determining whether the incident took place or not. See Porter v. New York City Hous. Auth., 42 AD3d 314, 314 (1st Dept. 2007). In an Article 78 proceeding, “the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative factfinder.” Id. The Chancellor’s Committee was not obligated to give more weight to an out-of-court and conclusory hearsay statement (R120) than to in-court hearsay testimony (Hearing Tr. 13-15; R52-55). It is well-settled that hearsay may be considered at an administrative hearing. See N.Y. Admin. Proc. Act. § 306(1); Brown v. Ristich, 36 NY2d 183, 190 (1975); Austin v. Bd. of Educ., 280 AD2d 365, 365 (1st Dept. 2001) (holding that “the rules governing hearing procedures do 10 not require compliance with technical rules of evidence; therefore, a Hearing Officer may accept hearsay testimony”).5 Although Petitioner states that “upon information and belief” the persons who signed the statement were not allowed to testify at the appeal hearing (App. Br. 5), the transcript of the hearing indicates that Petitioner’s counsel never sought to call any of the three signatories as witnesses (Hearing Tr. 1-31; R40-70). In fact, upon introducing the statement, Petitioner’s counsel stated that it was “hearsay, the same as everything else. But they’re willing to put their names on a piece of paper” (Hearing Tr. 18; R57). Because the hearing testimony demonstrated that a rational basis existed for the U-rating, this Court cannot, and should not, reweigh the evidence and substitute its judgment for DOE’s. 5 Petitioner’s citation of Brown v. Board of Educ., 89 AD3d 486 (1st Dept. 2011), is not to the contrary (App. Br. 11). The court in Brown dismissed the petitioner’s challenge to the termination of his probationary service, despite the fact that the APPR had several blank sections and no attached documentation. Id. at 487-88. The court held that those deficiencies were not controlling because evidence adduced at the administrative hearing “provided ample ground for [petitioner’s] discontinuance,” including testimony from the principal and assistant principal as to petitioner’s poor classroom performance based on their own observations. Id. Here, there is no dispute that the Summer 2011 U-rating was based on the August 2, 2011 incident of professional misconduct. Instead, Petitioner argues that the hearing officer should have given more weight to an out-of-court hearsay statement than to Principal Cohen’s testimony; that argument is unavailing. 11 POINT II PETITIONER’S CHALLENGE TO THE 2011-2012 U-RATING IS PREMATURE, BECAUSE SHE HAS NOT EXHAUSTED HER ADMINISTRATIVE REMEDIES Petitioner’s challenge to her 2011-2012 U-rating is premature, as she had not exhausted her administrative remedies when she brought this Article 78 proceeding (R11-18, 155). The Supreme Court dismissed the portion of the petitioner’s petition challenging her U-rating for the 2011-2012 school year as premature (R7), and Petitioner does not dispute that ruling on appeal. A judicial challenge to a U-rating can be commenced only after a petitioner exhausts the administrative review process. See Matter of Leo v. New York City Dept. of Educ., 100 AD3d 536, 537 (1st Dept. 2012) (“Petitioner’s challenge to his year- end U-rating was premature because he did not exhaust his administrative remedies”); see also Andersen v. Klein, 50 AD3d 296, 297 (1st Dept. 2008). A probationary teacher has the right to an administrative review of a U-rating, and a determination that a probationary teacher’s performance was unsatisfactory does not become final and binding until the Chancellor denies the teacher’s appeal and 12 sustains the rating. See Matter of Hazeltine v. City of New York, 89 AD3d 613, 614 (1st Dept. 2011). In this case, Petitioner admitted below that the Chancellor had yet to issue a final decision on her appeal when the petition was filed (R155). Thus, Petitioner’s challenge to her U-rating for the 2011-2012 school year is premature and the Supreme Court’s dismissal should be affirmed. POINT III PETITIONER HAS NOT SHOWN THAT HER TERMINATION WAS IN BAD FAITH A probationary employee may be terminated for almost any reason, or for no reason at all, as long as it is not “in bad faith or for an improper or impermissible reason.” Duncan v. Kelly, 9 NY3d 1024, 1025 (2008); see also Venes v. Community School Bd., 43 NY2d 520, 525 (1978) (“a probationary employee . . . has no property rights in his position, and may be dismissed for almost any reason, or for no reason at all”). The termination of a probationary teacher may be annulled only if a petition establishes that it was in bad faith, “for a constitutionally impermissible purpose,” or “violative of a statute.” Frasier v. Bd. of Educ., 71 NY2d 763, 765 (1988). A teacher seeking to reverse a discontinuance bears the burden of demonstrating that the discontinuance was based in bad faith, 13 and “the mere assertion of bad faith without the presentation of evidence demonstrating it does not satisfy the employee’s burden.” Witherspoon v. Horn, 19 AD3d 250, 251 (1st Dept. 2005). A petition seeking to reverse the termination of a probationary employee is properly dismissed where there is evidence of good faith, which includes “[e]vidence in the record supporting the conclusion that performance was unsatisfactory.” Johnson v. Katz, 68 NY2d 649, 650 (1986); see also Leo v. Dept. of Educ., 100 AD3d 536, 537 (1st Dept. 2012) (granting DOE’s motion to dismiss where record contained evidence of good faith); Morgan v. Safir, 281 AD2d 376, 377 (1st Dept. 2001) (“The effect of . . . admissions of good faith is not negated by . . . other allegations purporting to show bad faith”), appeal dismissed, 97 NY2d 601 (2001). Here, two unsatisfactory ratings, based on two instances of unprofessional conduct and an informal observation of Petitioner’s teaching, provided a rational basis for the termination (R27, 74). Moreover, Petitioner does not dispute on appeal the 2012 instance of unprofessional conduct upon which the 2011-2012 U-rating was partially based. See Files v. Dept. of Educ., 118 AD3d 624 (1st Dept. 2014) (“Petitioner further failed to sustain her burden of showing that the DOE engaged in bad faith when it terminated her employment since she 14 received two letters of misconduct and an unsatisfactory performance rating”); Leo, 100 AD3d at 537; Rivers v. Bd. of Educ., 66 AD3d 410, 411 (1st Dept. 2009) (evidence of receipt of U-ratings in several categories established that dismissal was in good faith). Instead, Petitioner primarily contends that the termination was arbitrary or in bad faith because the other basis of the U-rating was an informal, rather than a formal, teacher observation (App. Br. 12). A technical procedural irregularity will not constitute evidence of bad faith unless it “undermine[s] the integrity and fairness of the process.” Kolmel v. City of New York, 88 AD3d 527, 529 (1st Dept. 2011); see also Richards v. Bd. of Educ., 117 AD3d 605, 606-07 (1st Dept. 2014). In Kolmel, this Court found a termination to be in bad faith where the petitioner put forward evidence of bad faith in addition to the procedural deficiencies themselves. See Kolmel, 88 AD3d at 528-29. The procedural deficiency alleged in Kolmel was the principal’s failure to personally observe the petitioner’s teaching, but the Court found that deficiency to be “not merely technical” because: (1) the year-end report ranked petitioner as unsatisfactory in every category, even when contradicted by the attached documentation; (2) the principal stated at the administrative hearing that she did not rely on evidence in 15 the file when making her recommendation; and (3) another employee stated that the principal pressured staff members into giving negative ratings without observing the teachers. Id. at 528-29; see also Wilborn v. Starr, 59 AD2d 785 (1st Dept. 1977) (termination improper where evaluators had “no knowledge” of petitioners’ work); Kroboth v. Sexton, 160 AD2d 126, 130 (1st Dept. 1990) (termination had “no good-faith justification” where respondents terminated petitioner for participating in a substance abuse program set up by respondents themselves). Here, by contrast, Petitioner has not established evidence of bad faith by citing reliance on an informal rather than a formal evaluation. Petitioner’s assertion that the 2011-2012 APPR was completed in an “arbitrary manner” because she received an unsatisfactory rating in every category is inaccurate; in fact, Petitioner received more satisfactory ratings than unsatisfactory ratings on the APPR (R73).6 This Court has affirmed U-ratings where alleged procedural deficiencies were insufficient to establish arbitrariness or bad faith. In Cohn v. Bd. 6 Petitioner’s bald assertion that the DOE did not provide her with the documentation presented at the discontinuance hearing (App. Br. 13) is neither alleged in the petition nor supported by any citation to facts in the record. 16 of Educ., 102 AD3d 586 (1st Dept. 2013), this Court found that deviation from DOE’s formal observation guidelines did not render a U-rating arbitrary and capricious. Id. at 587. This Court looked to the context of the U-rating and noted that the petitioner was provided with a professional development plan and received notes following classroom observations regarding “areas of improvement and specific recommendations.” Cohn, 102 AD3d at 587. Similarly, in Richards v. Bd. of Educ., 117 AD3d 605 (1st Dept. 2014), this Court upheld a U-rating despite the petitioner’s allegations that she did not receive mandatory pre-observation conferences and that school officials failed to provide her with sufficient professional support. Id. at 606. This Court noted that, in fact, the record established that DOE conducted three classroom observations detailing “areas of improvement” and offering “specific recommendations.” Id. at 606-07.7 In this case, Petitioner’s formal evaluation in November 2011 included detailed descriptions of her performance and specific suggestions for improvement in the categories in which she received an “unsatisfactory” rating, including the suggestion that students’ work should “reflect originality” and “not [be] copied” and that students should learn how to “use the rubric to assess their 7 Cohn and Richards involved challenges to U-ratings rather than to the termination itself. Cohn, 102 AD3d at 586; Richards, 117 AD3d at 606. 17 own work” (R162-165).8 The evaluation also indicated that a “pre-observation” had taken place two days prior to the formal observation (R162). Further, the April 2012 informal evaluation forming the partial basis for the 2011-2012 U- rating also included specific suggestions for improvement and detailed observations, as Petitioner indicates in her affidavit submitted below (Pet. Aff. ¶ 31; R74, 157), although a copy of the informal observation report itself was not included with the affidavit. Moreover, unlike Cohn and Richards, Petitioner’s termination was based not only on observations of her teaching but on an incident of professional misconduct (R74) that occurred after the prior incident in Summer 2011 (R27). Because there was “ample ground” for Petitioner’s discontinuance – including hearing testimony from the Summer 2011 U-rating appeal, the incident of misconduct in 2012, and the informal observation report – “any deficiencies in the APPR report do not render the determination to discontinue” Petitioner’s employment arbitrary, capricious, or in bad faith. See Brown v. Bd. of Educ., 89 AD3d at 487-88. In other words, Petitioner has provided this Court with no reason to depart from the result reached below. 8 The overall rating for the formal evaluation was “satisfactory,” but Petitioner received unsatisfactory ratings in several categories, including “establishes expectations and consequences 18 CONCLUSION THE SUPREME COURT’S DISMISSAL OF THE PETITION SHOULD BE AFFIRMED, WITH COSTS. Respectfully submitted, Zachary W. Carter Corporation Counsel of the City of New York Attorney for Respondents-Respondents By: ____________________ EMMA GRUNBERG Assistant Corporation Counsel KRISTIN M. HELMERS EMMA GRUNBERG Of Counsel October 7, 2014 for student behavior” (R163). 19 PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010, using Times New Roman 14 pt. for the body and Times New Roman 12 pt. for footnotes. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 3,829 words. Respectfully submitted, Zachary W. Carter Corporation Counsel of the City of New York Attorney for Respondents-Respondents By: ____________________ EMMA GRUNBERG Assistant Corporation Counsel KRISTIN M. HELMERS EMMA GRUNBERG Of Counsel October 7, 2014