In the Matter of Diane Mendez, Respondent,v.New York City Department of Education, et al., Appellants.BriefN.Y.October 19, 2016June 2, 2016 Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Matter of Mendez v. N.Y.C. Dept. of Education APL-2016-00053 Dear Mr. Asiello: In response to this Court’s March 25, 2016 letter request, this letter brief is submitted on behalf of respondents-appellants New York City Department of Education and Dennis Walcott, as its former Chancellor (collectively “DOE”). Pursuant to Rule 500.11, DOE notes its position that the certified question presented in this appeal warrants full briefing and argument, because the decision below illustrates an error that has recurred in several decisions of the Appellate Division, First Department, on an issue of public importance: the standard to be applied in reviewing the discontinuance of probationary public school teachers. In this Article 78 proceeding, the First Department, by a vote of three to one, overturned DOE’s decision to discontinue Diane Mendez’s probationary service as a special education teacher. Mendez contended that DOE’s decision was arbitrary and capricious, claiming that DOE ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 EMMA GRUNBERG Phone: (212) 356-0841 Fax: (212) 356-2509 Email: egrunber@law.nyc.gov 2 did not follow certain internal rules with regard to her unsatisfactory ratings. She had received two unsatisfactory ratings during her two- year probationary period. The Appellate Division majority found that one of these unsatisfactory ratings was not supported by a rational basis, reasoning that Mendez’s conduct—screaming at another teacher in front of her special education students—did not constitute unprofessional behavior. On that basis alone, and without even considering the circumstances underlying her second unsatisfactory rating, the majority annulled the termination of Mendez’s probationary employment. Although the majority’s annulment of Mendez’s summer-session unsatisfactory rating was mistaken, the DOE does not challenge it here in order to focus on a separate error that appears in a number of First Department decisions (but not in others): the improper conflation of the distinct standards for reviewing (1) an unsatisfactory performance rating and (2) the discontinuance of probationary employment. By basing its annulment of the discontinuance of Mendez’s probationary employment on its finding that there was no rational basis for her unsatisfactory rating, the Appellate Division majority essentially incorporated a “for cause” requirement to the termination of probationary teachers. But under the governing statute, a probationary teacher may be terminated for any constitutionally and statutorily permissible reason. Because school boards are granted broad discretion to evaluate a probationary teacher’s fitness for tenure, a court’s review of a probationary termination is limited to determining whether the employee was dismissed for a constitutionally or statutorily impermissible purpose. Here, Mendez failed to allege, much less show, that she was dismissed for an impermissible reason. Moreover, the Appellate Division did not find that DOE dismissed her for an impermissible reason. In the absence of such a finding, the court should not have interfered with the school board’s responsibility to ensure that teachers who receive the significant protections of tenure will be effective and professional educators and role models. School officials, who are charged with the responsibility of running an effective school and are able to observe a teacher’s demeanor and competence, are best placed to make these judgment calls. Allowing courts to freely reevaluate a 3 probationary teacher’s fitness for tenure, as the Appellate Division did here, is contrary to the governing statute and well-settled law, and it disserves the City’s public schoolchildren and their parents, who deserve high standards in the classroom. A. Background 1. The New York City Public School System DOE operates the nation’s largest public school system, serving around 1.1 million students (a number larger than the entire population of Montana), running over 1,800 schools, and employing about 75,000 teachers.1 Its mission is to provide all students with a quality education that helps them reach their full potential. In order to fulfill that mission, DOE’s teachers must have the proven skill to provide an appropriate learning environment for a student body that is not only massive, but also diverse in backgrounds and educational needs. Well over 100,000 students, comprising 19 percent of students in the City’s public schools, are enrolled in special education programs.2 English is not a native language for 15 percent of students.3 And nearly eighty percent are eligible for free or reduced lunch assistance from the federal government.4 All of these children deserve to be educated by effective and professional teachers. 1 New York City Department of Education, http://schools.nyc.gov/AboutUs.htm (last visited June 2, 2016); City of New York, Preliminary Mayor’s Management Report (Feb. 2016), at 181, available at http://on.nyc.gov/1TLztQd; United States Census Bureau, Quick Facts: Montana, http://1.usa.gov/1Y4As3q (last visited June 2, 2016). 2 New York City Independent Budget Office, New York City Public School Indicators: Demographics, Resources, Outcomes (Oct. 2015), at 10, available at http://bit.ly/1hmbx9f. 3 Id. at 9. 4 Id. at 15. 4 2. The Statutory Scheme Giving DOE the “Unfettered Right” to Terminate Probationary Teachers The probationary period is DOE’s sole opportunity to observe and evaluate a teacher before determining whether he or she will be granted tenure and its extensive legal protections. Once granted the protections of tenure, public schoolteachers in New York State may be dismissed only for certain statutorily enumerated reasons. Educ. Law § 3012(2)(a). Before they can be dismissed or disciplined, tenured teachers receive robust due process protections, including a lengthy procedure of independent arbitral review. Id. at § 3020-a. During the review process, tenured teachers may make discovery requests, subpoena and cross- examine sworn witnesses, and ask that the arbitrator consider the extent to which the school made efforts to remediate the teacher’s performance. Id. at § 3020-a(4)(a). Tenured teachers with seniority receive even greater protection, because administrators must exclusively consider seniority to determine who is dismissed when school layoffs are necessary. Id. at §§ 2585(3); 3013(2). To ensure that teachers who are granted the protections of tenure have first demonstrated their effectiveness and professionalism, the Education Law expressly provides for periods of probationary service. Educ. Law §§ 2509(1)(a); 2573(1)(a); 3012(1)(a). Depending on the teacher’s background, the probationary period may last from one to three years, or for teachers appointed since July 1, 2015, for two to four years. Id. During the probationary period, a school district may dismiss a teacher at any time, for any reason or no reason at all, so long as the reason is not statutorily or constitutionally impermissible. Id. at §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). Dismissal need not be based on a teacher’s misconduct or classroom performance. Id. at §§ 3012-c(1); 3012-c(5)(b). Tenured and probationary teachers both undergo an annual review and evaluation process. Educ. Law §§ 3012-c(1); 3012-d(1). But the Education Law takes pains to ensure that review of a teacher’s rating is separate from any review of a decision to terminate a probationary teacher. The statute thus explicitly provides that nothing in the evaluation process—including a teacher’s administrative appeal from an unsatisfactory rating—affects a school board’s right to 5 discontinue a teacher’s probationary employment. Id. at §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). In 2015, the Legislature amended the statute to add even stronger language reaffirming that school boards have the “unfettered statutory right” to terminate a probationary teacher for “any” statutorily or constitutionally permissible reasons. Educ. Law §§ 3012-c(1); 3012- c(5)(b); 3012-d(9) (as amended by L 2015, ch. 56). See FY 2016 New York State Executive Budget Summary, Bill Jacket, L 2015, ch. 56.5 3. Mendez’s Probationary Service Record Mendez received two unsatisfactory ratings during her two-year probationary period as a special education teacher at P.S. X017, a school in the Bronx serving students up to the ninth grade (Record on Appeal (R.) 13-14, 27, 73-74). The probationary period began in September 2010, and Mendez received unsatisfactory ratings for the 2011 summer school session and the 2011-2012 school year (R. 27, 73- 74). Mendez was not granted tenure and, in June 2012, she was advised that her services would be discontinued (R. 14, 74). a. Mendez’s summer 2011 unsatisfactory rating Mendez received an unsatisfactory rating for the summer 2011 period based on an incident in which she engaged in a shouting match with another teacher in front of her special education students (R. 27, 48-54). Mendez and the other teacher were arguing about their room assignments (R. 59-61). Assistant Principal Jacqueline Colon heard yelling from her office around the corner and rushed out to the hallway to see what was going on (R. 53-54). During the ensuing discussion with 5 This amendment was part of a package of legislative changes instituting stricter standards for teachers seeking to earn tenure. See Governor Cuomo Announces Highlights from the Passage of the 2015-16 State Budget (Apr. 1, 2015), Bill Jacket, L 2015, ch. 56. These changes included longer probationary periods with a minimum term of four years for most teachers, and the requirement that a probationary teacher must be rated “effective” or “highly effective” in at least three of four years to be eligible to receive tenure. Educ. Law §§ 3012(1)(ii); 3012(2)(b). 6 Colon, Mendez was confrontational and told her: “I don’t care if you’re the President of the United States” (R. 61-62). Mendez appealed the unsatisfactory rating, and the Chancellor’s Committee held a hearing to review it (R. 13, 40-70). At the hearing, the school principal, Robin Cohen, stated that she investigated the incident and spoke with two eyewitnesses, assistant principal Colon and another teacher (R. 53). A representative for the superintendent of special education reviewed Principal Cohen’s unsatisfactory rating decision and found the situation to be very serious, noting that regardless of what the argument was about, it was “totally inappropriate” behavior in front of the students (R. 50-52). Mendez also gave her account of the argument before the Chancellor’s Committee (R. 57-63). She submitted into evidence a document signed by three people, asserting without further detail that no unprofessional behavior occurred (R. 55-57, 160). None of the signatories appeared at the hearing (R. 40-70). During closing arguments, Mendez’s union representative asserted that Mendez was “very loud and maybe a little misunderstood” (R. 68). Following the hearing, the Chancellor upheld the unsatisfactory rating (R. 13). b. Mendez’s 2011—2012 year-end unsatisfactory rating for unprofessional behavior and unsatisfactory teaching Mendez received an unsatisfactory rating on her annual professional performance review for the 2011-2012 school year (R. 73- 74). As Mendez has conceded, her Article 78 challenge to that rating was premature because she had not exhausted her administrative remedies when she filed her petition (R. 7, 11-18, 149, 155; App. Br. 2, 15). The unsatisfactory rating was based on (1) an observation report from April 2012 rating Mendez’s teaching as unsatisfactory and (2) a January 2012 incident of unprofessional conduct (R. 74). Mendez was formally observed in November 2011; although that observation was rated satisfactory overall, she was rated unsatisfactory on several pedagogical categories (R. 162-65). 7 Following the 2011-2012 school year, Mendez was not granted tenure and her probationary services were discontinued (R. 14, 74). 4. Mendez’s Challenge to the Termination of Her Probationary Position Mendez filed an Article 78 petition in Supreme Court, New York County (R. 11-18). She challenged both her summer 2011 unsatisfactory rating and her unsatisfactory rating for the ensuing 2011-2012 school year, as well as challenging the discontinuance of her probationary employment (R. 14). Her grounds for challenging the 2011-2012 year-end rating were (1) the alleged lack of a formal teaching evaluation (although she was formally observed in November 2011); (2) insufficient remedial teaching help; and (3) on the rating form, not every unsatisfactory rating in individual subject areas was keyed to a specific piece of supporting documentation (R. 15-17, 162-65). Mendez’s challenge to the summer 2011 unsatisfactory rating was the conclusory claim that the unprofessional conduct “did not take place” (R. 13). Mendez made no factual allegations regarding DOE’s discontinuance of her probationary employment, beyond the bare assertion that it was “in bad faith.” (R. 11-18). Supreme Court (Wright, J.) dismissed the petition on DOE’s motion (R. 4-7). On appeal, Mendez did not challenge Supreme Court’s dismissal of her challenge to the year-end unsatisfactory rating as premature, but continued to argue that her summer 2011 unsatisfactory rating was arbitrary and capricious (App. Br. 2, 15). She also argued that her termination should be annulled based on the alleged technical issues with the year-end unsatisfactory rating and her claim that she did not behave unprofessionally in summer 2011 (App. Br. 9-14). 8 5. The Appellate Division’s Decision Annulling Mendez’s Termination The Appellate Division, in a three to one decision, reversed the lower court’s dismissal of the petition, except that it affirmed the dismissal of Mendez’s challenge to her year-end unsatisfactory rating as premature, a point that Mendez had conceded. Matter of Mendez v. N.Y.C. Dep’t of Educ., 132 A.D.3d 533 (1st Dep’t 2015). The majority determined that the summer unsatisfactory rating lacked a rational basis and was arbitrary and capricious. Id. at 534. The majority accepted the evidence that Mendez “engaged in a loud argument” with another teacher in front of students, but found that there was no basis to determine whether that conduct was unprofessional without “more elaboration” on what it was about or what language was used. Id. at 534-35. The majority disagreed with the Superintendent’s judgment that the evidence showed insubordination. Id. at 535. The majority also annulled the discontinuance of Mendez’s probationary employment. Id. In doing so, the majority did not inquire into whether Mendez was terminated for impermissible reasons. Instead the majority reasoned that DOE’s failure to establish a rational basis for the summer unsatisfactory rating was a “deficiency” in the termination process that undermined its “integrity and fairness.” Id. The majority also noted that Mendez had “received satisfactory ratings since February 2010, which established her professional conduct but for the incident of a loud argument,” although her performance during the 2011-2012 school year was also rated unsatisfactory based in part on another instance of professional misconduct. Id. Justice Sweeny dissented. Id. at 535-37. The dissent would have sustained both the discontinuance and the summer unsatisfactory rating. Id. The dissent reasoned that the school principal’s testimony, based on eyewitness accounts that Mendez yelled at another teacher in front of students, was a rational basis for the unsatisfactory rating. Id. at 536. With regard to the discontinuance, the dissent noted that the majority improperly equated the standard for annulling an 9 unsatisfactory rating with the far more demanding standard for annulling the discontinuance of probationary employment: namely, that a probationer may be discontinued for any reason or no reason at all in the absence of bad faith, a constitutionally impermissible purpose, or a violation of law. Id. at 537. DOE moved in the Appellate Division for reargument and, alternatively, for leave to appeal. The motion for reargument asked the Appellate Division to reconsider their decision in light of an intra- departmental split in authority, given that certain First Department decisions have recognized the distinction between the standards of review for an unsatisfactory rating and the discontinuance of probationary service. See, e.g., Matter of Almonte v. Dep’t of Educ., 132 A.D.3d 505, 505-06 (1st Dep’t 2015); Matter of Rieser v. New York City Dep’t of Educ., 133 A.D.3d 465, 466 (1st Dep’t 2015). The First Department denied reargument, but granted leave to appeal, certifying its decision for review by this Court pursuant to C.P.L.R. 5713 by order dated February 23, 2016. B. Argument The First Department’s decision conflicts with statutory law providing that DOE may terminate a probationary teacher for any statutorily or constitutionally permissible reason. Because a probationer’s dismissal need not be for cause, the court’s role is not to reassess her conduct or performance—as the First Department did here—but instead to determine whether she was terminated for an impermissible reason. Nor does a probationer’s claim that DOE was mistaken in finding misconduct or poor performance constitute a basis for annulling the discontinuance of probationary employment. Under the correct standard, there is no basis to annul Mendez’s termination, and this Court should reverse the Appellate Division’s decision to the contrary. 10 1. A Teacher Challenging the Discontinuance of Probationary Employment Must Show That it Was Done For a Constitutionally or Statutorily Impermissible Reason. Because probationary employees have no property rights to their positions, they may be dismissed for almost any reason or for no reason at all. See Swinton v. Safir, 93 N.Y.2d 758, 762-63 (1999); see generally Bd. of Regents v. Roth, 408 U.S. 564 (1972). In the education context specifically, the dismissal of probationary teachers is governed by the express and detailed provisions of the Education Law. That statute explicitly authorizes a school board to terminate a probationary teacher for any statutorily and constitutionally permissible reason. Educ. Law §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). The decision to terminate need not be based on the teacher’s conduct or classroom performance. Id. Nor is the school board’s discretion to terminate a probationary teacher constrained in any way by the teacher’s performance ratings, or by the procedures governing the performance review process. Id. In 2015, the Legislature added even stronger language to the statute, reaffirming that a school board has the “unfettered statutory right” to terminate a probationary teacher for “any” statutorily or constitutionally permissible reason. Educ. Law §§ 3012-c(1); 3012- c(5)(b); 3012-d(9) (as amended by L 2015, ch. 56). As this Court has long recognized, the Education Law leaves “no doubt” that a probationary teacher may be denied tenure without stated reasons unless the teacher establishes that the dismissal was “for constitutionally impermissible reasons or in violation of statutory proscriptions.” Cohoes City Sch. Dist. v. Cohoes Teachers Ass’n, 40 N.Y.2d 774, 777 (1976). In other words, a probationary teacher’s dismissal “need not be for cause”; consequently, the teacher may be dismissed for reasons unrelated to her performance, such as the perceived needs and requirements of the school district. Venes v. Cmty. Sch. Bd., 43 N.Y.2d 520, 525 (1978). The principle that a probationer may be dismissed for any reason or no reason applies to all probationary employees, but it acquires heightened importance for public school teachers. In the education 11 context, the decision whether to terminate probationary employment is inextricably linked to the crucial decision whether to grant a teacher the special protections of tenure. Thus, the Education Law explicitly vests school boards with the broad authority to make these decisions, limited only by statutory and constitutional law. Cohoes, 40 N.Y.2d at 777-78. For the benefit of its pupils, a school board may not delegate or abnegate this statutory responsibility. Id. Though some decisions include “bad faith” as well as constitutionally or statutorily impermissible reasons in describing the grounds for reviewing probationary terminations in general, “bad faith” cannot serve as a ground for judicial review in this context. Rather, the Education Law expressly authorizes dismissal of a probationary teacher for any constitutionally or statutorily permissible reason, and thus makes clear that a petitioner may not rely on allegations of “bad faith” to dispense with the requirement to identify and prove a constitutionally or statutorily impermissible reason for the determination. Educ. Law §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). A probationary teacher cannot, for example, get around the requirement to plead a constitutionally or statutorily impermissible reason by alleging some generalized bad motive, such as that school officials wanted to harm her without justification. James v. Bd. of Educ., 37 N.Y.2d 891, 892 (1975). As this Court reasoned, such claims could be made following almost any dismissal. Id.; see also Bergamini v. Manhattan & Bronx Surface Transit Operating Auth., 62 N.Y.2d 897, 898-99 (1984) (reasoning that there was no bases to overturn a public at-will employee’s termination where the employee claimed that he was wrongfully terminated because he did not accept blame for his supervisor’s failed experiment, but did not assert a constitutionally or statutorily impermissible reason), rev’g 94 A.D.2d 441 (1st Dep’t 1983). Even if “bad faith” could provide an additional ground to review a probationary teacher’s dismissal, that ground must remain narrowly drawn to require something akin to a showing of an impermissible reason, lest it upset the long-settled rule that a probationer may be dismissed for any reason, including reasons unrelated to performance, or for no reason at all. See Swinton, 93 N.Y.2d at 762-63; Venes, 43 N.Y.2d at 525. Indeed, this Court has seldom if ever overturned a probationary dismissal on stand-alone grounds of “bad faith,” absent a 12 constitutionally or statutorily impermissible reason. At a minimum, to the extent that “bad faith” supplies an incremental ground for review, a probationer must at least establish an egregious motive for the termination and the absence of any good faith basis supporting the decision. See, e.g., Cohen v. Koehler, 82 N.Y.2d 882, 884-85 (1993) (holding that probationary corrections officer failed to raise an issue of fact regarding bad faith where he alleged that the department conducted a selective investigation and withheld information from the administrative record), rev’g 181 A.D.2d 285 (1st Dep’t 1992); Johnson v. Katz, 68 N.Y.2d 649, 650 (1986) (finding no bad faith where probationary employee asserted that she was told she was being dismissed to protect other employees from scheduled layoffs, but evidence suggested she had interpersonal problems with other employees). 2. Mendez Failed to Demonstrate that her Probationary Services Were Terminated for Any Impermissible Reason. Under the governing statute and this Court’s precedents, judicial review of a probationary teacher’s termination is limited to determining whether the teacher has established that she was terminated for a constitutionally or statutorily impermissible reason. James, 37 N.Y.2d at 892. The probationer bears the burden not only of asserting such a claim, but of supporting it with legal and competent evidence. Bergstein v. Bd. of Educ., 34 N.Y.2d 318, 322-23 (1974). Here, Mendez’s petition failed to allege, much less prove, that DOE terminated her for any unconstitutional or statutorily impermissible reason. Instead, she pointed to alleged technical deficiencies in the year-end unsatisfactory rating and claimed that she did not behave unprofessionally during the confrontation with another teacher that led to the summer unsatisfactory rating (R. 11-18).6 6 Mendez alleged that the year-end unsatisfactory rating was deficient because: (1) she did not receive a formal teaching evaluation (although she was formally evaluated in November 2011); (2) she received insufficient remedial teaching help; and (3) not every unsatisfactory rating in an individual area on the review form was Continued… 13 Nor did Mendez make any credible showing of “bad faith,” even if the Education Law did not foreclose it as any stand-alone ground for annulling discontinuance of a probationary teacher’s service. Mendez did not assert that the unsatisfactory ratings served as a smokescreen for any improper motive, and her claim that DOE did not follow certain internal guidelines in rating her unsatisfactory for the 2011-2012 school year does not create an issue of bad faith, since the concept of bad faith is “entirely tied to motive.” See, e.g., Tractebel Energy Mktg. v. AEP Power Mktg., 487 F.3d 89, 100 n.8 (2d Cir. 2007) (analyzing New York law). The Education Law specifically provides that the details of the performance review procedure do not affect DOE’s right to terminate probationary teachers. Educ. Law §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). Mendez’s complaints about her unsatisfactory ratings do not constitute the type of “bad faith” that could plausibly be a basis to annul a probationary termination. First, during the 2011-2012 school year, Mendez received an unsatisfactory teaching evaluation and was disciplined for misconduct (R. 74). Her Article 78 petition did not dispute the substantive bases for the rating, nor did she challenge those bases on appeal to the Appellate Division (R. 11-18; App. Br. 9-14). Second, her summer 2011 unsatisfactory rating was based on her confrontation with another teacher in front of her students. Although Mendez claims that it was merely a discussion, eyewitnesses to the argument indicated that she was yelling loudly enough to be heard in offices around the corner (R. 53-54). While Mendez submitted a bare- bones statement claiming that no unprofessional behavior occurred, the document contains no further detail and the signatories did not appear at the administrative hearing (R. 40-70, 160). And Mendez admits that, during the discussion with school officials following the argument, she told the assistant principal, “I don’t care if you’re the president of the United States” (R. 61-62). Thus, even assuming there were grounds to keyed to a specific piece of supporting documentation (R. 15-17, 162-65). Although in reply, Mendez summarily alleged that she was retaliated against during the school year for filing a notice of claim against DOE, she did not make this claim in the petition or raise it before the Appellate Division, and therefore any such argument has been abandoned (R. 11-18, 151-58; App. Br. 1-15). 14 dispute whether Mendez’s conduct was unprofessional, the discontinuance of her probationary services based in part on this incident was not for impermissible or unlawful reasons. 3. By Annulling Mendez’s Termination Without Evidence of a Constitutionally or Statutorily Impermissible Purpose, the First Department Improperly Imposed a “For Cause” Standard on Probationary Terminations. Without requiring any showing of the existence of an impermissible reason, the First Department majority annulled Mendez’s termination based on its reevaluation of what type of conduct should be considered unprofessional for a special education teacher. The majority’s reasoning essentially imposed a “for cause” standard on a probationary termination, abrogating the purpose of the probationary period and contravening the Education Law and this Court’s precedent. See Venes, 43 N.Y.2d at 525 (holding that a probationary termination may be done for any reason and “need not be for cause”). Moreover, the majority improperly relieved Mendez of her burden to show a constitutionally or statutorily impermissible purpose, requiring instead that DOE justify its decision to dismiss her. But as this Court has held, “it [is] not incumbent upon the board to show that its reasons for denying tenure . . . were proper; it [is] for the petitioner to prove that the reasons for denying tenure were improper.” Bergstein, 34 N.Y.2d at 323. The burden shifts to the employer to show a good faith basis for the employment action only when the probationer materially alleges that the termination was done for an impermissible reason, which Mendez did not. See Matter of Duncan v. Kelly, 9 N.Y.3d 1024, 1025 (2008) (no bad faith where, despite probationary police officer’s assertion that he was dismissed due to pre-hiring conduct, the Commissioner relied on his post-hiring conduct in terminating him); Johnson, 68 N.Y.2d at 650 (no bad faith where, despite probationary employee’s assertion that she was dismissed to protect other employees from scheduled layoffs, she received a low performance rating and had difficult relationships with other staff). The majority attempted to shoehorn its rationale into the probationary termination standard by reasoning that “the failure to 15 establish a rational basis for the summer 2011 [unsatisfactory] rating” was a “deficiency in the review process to terminate [Mendez’s] employment that was ‘not merely technical, but undermined the integrity and fairness of the process.’” Mendez, 132 A.D.3d at 535 (quoting Matter of Kolmel v. City of New York, 88 A.D.3d 527, 529 (1st Dep’t 2011)). Essentially, the majority concluded that giving Mendez an unsatisfactory rating for yelling at another teacher in front of their students was so egregiously irrational that it made her termination unfair. That leap of logic conflates the arbitrary and capricious standard of review for an unsatisfactory rating with the sharply distinct and far more demanding standard for reviewing the discontinuance of probationary employment. The performance review process applies to both tenured and probationary teachers and is separate from the discretionary authority to dismiss probationary employees. The performance review process does not affect a school board’s right to terminate a probationary teacher for any reason, including reasons unrelated to performance (such as the school district’s perceived needs). Venes, 43 N.Y.2d at 525; see also Educ. Law §§ 3012-c(1); 3012-c(5)(b); 3012-d(9). Without any showing of a constitutionally or statutorily impermissible reason, a court’s disagreement with the reasons for an unsatisfactory rating is not a basis to overturn a probationary termination. Thus, although an unsatisfactory rating will unquestionably support a termination of probationary employment, the discontinuance of a probationary teacher will also be lawful in many cases where an unsatisfactory rating is vacated or even where the employee has received a satisfactory rating. Indeed, certain other decisions from the First Department itself recognize just this point, acknowledging the distinction between the two standards. See, e.g., Matter of Almonte v. Dep’t of Educ., 132 A.D.3d 505, 505-06 (1st Dep’t 2015); Matter of Rieser v. New York City Dep’t of Educ., 133 A.D.3d 465, 466 (1st Dep’t 2015); see also Kahn v. New York City Dep’t of Educ., 18 N.Y.3d 457, 470-73 (2012) (holding that the decision to discontinue a probationary teacher is separate from any internal review process, including appeals from unsatisfactory ratings, created by collective bargaining agreements and school board bylaws). 16 The distinct limits on review of dismissals of probationary teachers exist for good reason: the statutory scheme vests school boards, and not courts, with sole discretion to assess whether a teacher is qualified for tenure. School officials are best placed to conduct that assessment because they have day-to-day experience with the needs of students, parents, and the school, and they can observe the teacher’s performance and demeanor. For example, here Mendez sought tenure in the special education field, which particularly requires discretion, good judgment, and the ability to maintain positive relationships with students, parents, and administrators. Although the First Department concluded that the shouting match between teachers did not constitute unprofessional conduct because the content of the argument was not inappropriate, Mendez, 132 A.D.3d at 534-35, a representative for the superintendent of special education had a different view. She noted that some of the special education students were severely disabled and might not have been able to comprehend what the argument was about, but it was irrelevant because the behavior itself was completely inappropriate in front of elementary school aged special education students (R. 51). Significantly, Mendez’s termination was also based on her unsatisfactory performance during the following school year (R. 74).7 Mendez’s petition did not materially challenge the factual bases for that year-end rating: the unsatisfactory teaching evaluation and additional 7 The majority inaccurately stated that other than summer 2011, Mendez had received satisfactory ratings since February 2010. Mendez, 132 A.D.3d at 535. This is a short period of time to begin with, but in any event the majority was mistaken. Mendez in fact received an unsatisfactory rating for the 2011-2012 school year (R. 73-74). At any rate, Mendez’s previous satisfactory ratings are irrelevant to the analysis. The fact that a probationer received satisfactory as well as unsatisfactory ratings does not raise an issue of fact as to bad faith. Matter of York v. McGuire, 99 A.D.2d 1023, 1024 (1st Dep’t 1984). To hold otherwise would be to defeat the purpose of the statutory requirement that the probationary period lasts for a defined term of years, and could create a situation where DOE is powerless to terminate any probationer who displayed uneven performance or whose performance declined or failed to progress as expected towards the end of the probationary period. 17 incident of misconduct. Her sole challenges to that rating—properly held by both lower courts to be premature until the resolution of her pertinent administrative appeal—were based on claimed failures by DOE to follow the procedural requirements of its bylaws and the collective bargaining agreement. Thus, even if DOE were required to establish some affirmative ground for the dismissal, and even if the conduct documented in the summer 2011 rating were entirely disregarded, the dismissal still should not be disturbed given the 2011- 2012 unsatisfactory rating. In sum, Mendez has never suggested, let alone credibly alleged, that DOE had any legally impermissible reason for discontinuing her probationary service. Nor has she brought forth credible allegations of bad faith, if that were even a permissible ground for reviewing the discontinuance under the governing statute. Her challenge to the discontinuance should have been dismissed. 4. The First Department’s Decision Impairs DOE’s Ability to Ensure that Only Effective Teachers Receive Tenure. The First Department’s decision here is not only contrary to statute and precedent, but would frustrate DOE’s mission to provide the City’s schoolchildren with a quality education. Teacher quality is the most important school-related factor that influences student performance. See Eric A. Hanushek, The Economic Value of Higher Teacher Quality, 30 Econ. Educ. Rev. 466, 467 (2011); William L. Sanders & June G. Rivers, Value-Added Research & Assessment Ctr., Univ. of Tenn., Cumulative and Residual Effects of Teachers on Future Student Academic Achievement 5-6 (1996). The probationary period is vital to achieving this goal. Once a teacher is tenured, she receives legal protections against dismissal without cause setting forth a stringent standard and a lengthy procedure of independent arbitral review before she can be dismissed for cause. The probationary period allows school officials to, among other things, conduct a holistic review of a teacher’s demeanor and competence on the job before she is granted tenure’s significant protections. As long ago as 1898, this Court recognized that candidates 18 for public employment might be qualified on paper but nonetheless unfit for the position “by reason of . . . want of character, experience, tact, integrity, or lack of a proper disposition.” People ex rel. Sweet v. Lyman, 157 N.Y. 368, 380-81 (1898). The Court has thus recognized for more than a century that probationary periods are a well-calculated and appropriate way of determining the merit and fitness of a candidate based on a person’s actual experience in the position. Id. at 377. DOE takes its responsibility over these decisions seriously, and most probationers who are not granted tenure have their probationary periods extended for further evaluation. During the 2013-2014 school year, for example, sixty percent of probationary teachers were granted tenure and 38 percent had their probationary periods extended. Only two percent were denied tenure outright.8 Yet even in that small percentage of cases where school officials decided that a probationary teacher was not fit to receive tenure, courts within the First Department have in multiple cases overturned these officials’ judgments without requiring any showing that the determinations were made for improper reasons. See Matter of Gumbs v. Bd. of Educ., 125 A.D.3d 484 (1st Dep’t 2015); Matter of Kolmel v. City of New York, 88 A.D.3d 527 (1st Dep’t 2011); Matter of Pape v. Walcott, 2014 N.Y. Slip. Op. 31779(U), 2014 N.Y. Misc. LEXIS 3096 (Sup. Ct. New York County. July 9, 2014); Matter of Clemente v. Board of Educ. of City Sch. Dist. of City of N.Y., 2014 N.Y. Slip. Op. 30147(U), 2014 N.Y. Misc. LEXIS 217 (Sup. Ct. New York County, Jan. 16, 2014). This recurring thread of First Department decisions second- guessing the tenure judgments of DOE impedes the department’s ability to ensure that teachers do not receive tenure if they have failed to prove their professionalism, integrity, and ability in the classroom. Allowing those teachers not only to remain in the classroom, but to receive legal protection against future removal, disserves the City’s schoolchildren and their parents. Mendez did not make any showing 8 Elizabeth A. Harris, Staten Island Judge Allows Suit on Teacher Tenure to Proceed, N.Y. Times, March 12, 2015, available at: http://nyti.ms/1t4kcUE. 19 that DOE dismissed her for impermissible reasons, and under the Education Law and this Court’s precedent, there was no basis for the First Department to annul the dismissal. C. Conclusion This Court should reverse so much of the First Department’s order entered October 20, 2015 as annulled the termination of Mendez’s probationary employment. Respectfully submitted, Emma Grunberg Assistant Corporation Counsel Richard Dearing Fay Ng of Counsel cc: Rutkin & Wolf, PLLC Attn: Jason M. Wolf, Esq. 203 East Post Road White Plains, NY 10601 Counsel for Petitioner-Respondent Diane Mendez