In the Matter of Diane Mendez, Respondent,v.New York City Department of Education, et al., Appellants.

Brief

N.Y.October 19, 2016

To Be Argued By: Jason M. Wolf, Esq. New York County Clerk's Index No. I59047/12 NEW YORK SUPREME COURT APPELLATE DIVISION- FIRST DEPARTMENT In the Matter of the Application of DIANE MENDEZ Petitioner -Appellant, -against- For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules NEW YORK CITY DEPARTMENT OF EDUCA TJON; DENNIS WALCOTT, CHANCELLOR ofNEW YORK CITY DEPARTMENT OF EDUCATION, Respondents-Respondents APPELLANT'S BRIEF ~------------------------------------------------------------------~-------------- ZACHARY CARTER Corporation Cou nscl of the City of New York Attorneys for Respondents-Respondents I 00 Church Street New York, New York 10007 (212) 356-2500 lkoerner@law .nyc.gov RUTKIN & WOLF PLLC Attorneys for Petitioner-Appellant 91 0 Grand Concourse, Ste. IF Bronx, New York 10451 (718) 410-0653 jmw308@aol.com REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................... I QUESTIONS PRESENTED .......................................................................... J STATEMENT OF FACTS ............................................................................. .4 A. Ms. Mendez's Employment History ................................. .4 B. The Allegations Underlying the Article 78 Proceeding .......... 5 C. Chancellor's Rules and Regulations ................................ .5 D. The Article 78 Proceeding ............................................ 8 ARGUMENT .................................................................................................. 9 THE DECISION TO RATE APPELLANT AS UNSATISFACTORY AND TO TERMINATE APPELLANT'S PROBATIONARY EMPLOYMENT WAS IRRATIONAL, MADE IN VIOLATION OF LAWFUL PROCEDURE, WAS ARBITRARY AND CAPRICIOUS, AND/OR MADE IN BAD FAITH ..... 9 CONCLUSION ............................................................................................. l5 PRINTING SPECIFICATION STATEMENT .................................... .l6 TABLE OF AUTHORITIES Cases Brown v. Board ofEduc. of City School Dist. of City ofNew York, 89 A.D.3d 486,932 N.Y.S.2d 64 (1st Dept., 2011) ..................... 11 Cohn v. Bd. ofEduc., 102 A.D.3d 586 (1st Dept., 2013) ..................................... .12, 13 Kolmel v. City of New York, 88 A.D.3d 527 (1st Dept., 2011) ............................................. 9 Lehman v. Board ofEd. of City School Dist. of City ofNew York, 82 A.D.2d 832,439 N.Y.S.2d 670 (2d Dept., 1981) ................. 9, lO Administrative Regulations Section 102.2(0) (a) of the New York State Commission of Education Regulations ..................................... 5 ii SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------)( DIANE MENDEZ Petitioner, -against- NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents, For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 159047112 -----------------------------------------------------------------)( APPELLANT'S BRIEF PRELIMINARY STATEMENT Petitioner-Appellant, Diane Mendez, appeals from the decision and order of the Supreme Court, New York County (Wright, A.J.S.C.), granting Respondent's motion to dismiss for failure to state a cause of action and denying Petitioner's application to annul her probationary termination and two unsatisfactory ratings. Ms. Mendez commenced this special proceeding to challenge her probationary termination and two unsatisfactory ratings. The Respondent New York City Department of Education ("DOE") cross-moved to dismiss for failure to state a cause of action and failure to exhaust administrative remedies, arguing that Ms. Mendez failed to establish that (I) she was terminated in bad faith; (2) that she was not denied a substantial right; and (3) that the challenge to her 2011-2012 Unsatisfactory Rating is premature. The issues are whether DOE's decision to uphold Ms. Mendez's 2011 Unsatisfactory Summer Rating was arbitrary and capricious and whether her probationary termination was made in bad faith. We submit that the Court below erred and abused its discretion in denying Ms. Mendez the relief she sought, and asks this Court to reverse the Order appealed from. 2 QUESTIONS PRESENTED l. Did the Court err by denying Appellant's Article 78 proceeding where Appellant's unsatisfactory rating and te111Jination of probationary service was made in violation of lawful procedure, and was otherwise arbitrary, capricious, unreasonable, an abuse of discretion, irrational and made in bad faith? 3 STATEMENTOFFACI'S1 A. Ms. Mendez's Employment History On or about February 2007, Ms. Mendez was appointed as a probationary common branches teacher for the DOE at P.S. X017 in Bronx, New York (13 2). Ms. Mendez performed her duties satisfactorily and received all satisfactory ratings, leading to tenure in common branch license in February 2010 (13, 20). Since Ms. Mendez taught special education for over three (3) years with excellent reviews and satisfactory ratings, she was told to switch her license from common branches to special education (13). By switching licenses, Ms. Mendez had to pass state exams, and forfeit her tenure under her common branches license ( 14 ). As a result, Ms. Mendez was duly appointed as a probationary special education teacher in September 2010, and was due to receive tenure after the successful completion of her third year in September 2012 (14). 1 The standard of review on a motion to dismiss for failure to state a claim under CPLR § 32ll(a) (7) is well settled and will not be repeated at length herein. Appellant simply notes that the court must accept the allegations of the petition as true and accord Appellant the benefit of every possible favorable inference and determine only whether the facts as alleged fit within a cognizable legal theory. Polonetsky v. Better Homes Depot. 97 N. Y.2d 46, 54 (200 I). 2 Numbers in parenthesis L) refer to pages of the Record on Appeal. 4 B. The Allegations Underlying the Article 78 Proceeding Ms. Mendez worked during summer 2011 and was given an unsatisfactory rating suspended for four ( 4) days without pay, based upon an incident that did not take place (13, 26). Notwithstanding the incident, Ms. Mendez received a satisfactory annual rating for the 2010-2011 school year and satisfactory observation reports (13, 28, 31 ). On June 27, 2012, shortly before Ms. Mendez was about to achieve tenure, the Principal ofP.S. X017, Robin Cohen, advised Ms. Mendez she would not recommend her for tenure and terminated her probationary services (14, 72). Ms. Mendez appealed the rating, and on September 19, 2012, her appeal was denied (13). Upon information and belief, during the investigation and appeal hearing, the DOE did not interview the witnesses who gave statements supporting Ms. Mendez's defense, nor were these witnesses allowed to testify at the appeal hearing (13, 39). C. Chancellor's Rules and Regulations Teacher evaluations and appeals of unsatisfactory ratings must be conducted in compliance with the formal procedures promulgated pursuant to Section 102.2(0) (a) of the New York State Commission of Education Regulations ( 15). 5 • In the City of New York. those procedures are set forth primarily in two Handbooks prepared by the Division of Human Resources, namely "Rating Pedagogical Staff Members" and "The Appeal Process" (78, 123). Pages 1-2 of the Rating Manual provide: A. Rating Officer as a Trainer To develop and maintain the maximum potential of each pedagogical employee, the principal and other rating team members should: 1. Become involved in the observation and training of those who show a need for more attention than the average. 2. Make formal and informal visits. 3. Make the employees aware of their existing strengths and deficiencies. 4. Characterize each formal observation of the employee's performance as Satisfactory or Unsatisfactory and indicate why this is so. 5. Follow each formal observation with a conference and written report as soon as practicable. 6. Provide a planned program for improvement with attainable goals. 7. Communicate, on a continuing basis, concerning progress or lack of progress. 8. Advise the employee in writing of the consequences of failure to improve. 9. Demonstrate understanding, patience, respect and a professional attitude at each step of this training. lO.Commit to writing all phases of the above-described program and see that all material is properly acknowledged and placed in the official file (83-84 ). 6 The Rating Manual, Page 7, Section E (Component B) provides: Component B: Formal Observation An observation may be conducted as a single full-period classroom visit or a series of short visits by the principal or supervisor. Discussion between a teacher or supervisor before and after an observation must be built into a school's formal classroom observation process, along with a post-observation conference and written report by the principal or supervisor including prescriptive recommendations for professional growth, where appropriate. • New and probationary teachers, tenured teachers who received an unsatisfactory rating the prior year and tenured teachers who are in danger of receiving an unsatisfactory rating must have formal observations (Component B) by the principal or designee as part of a prescriptive plan to improve their teaching (89). Page 13 of the Rating Manual provides: J. Constructing a Key After all the relevant and admissible items have been pulled from the file, the Rating Officer should, in the space provided on the Evaluation Form, key the documentation to those areas characterized as "Unsatisfactory" on that form (94 ). 7 • • D. The Article 78 Proceeding Ms. Mendez filed a Notice of Claim on or about November 16,2012 (75). Ms. Mendez commenced the underlying special proceeding by filing a Notice of Petition and Verified Petition in the Office ofthe New York County Clerk on December 21,2012 (8). The DOE filed a pre-answer Cross-Motion to Dismiss on March 29, 2013 (149). On December 19, 2013, the Supreme Court granted Respondent's Cross-Motion and dismissed Ms. Mendez's Verified Petition, holding that "[t]he record established that the administrative decision to uphold petitioner's unsatisfactory review was not arbitrary or capricious and the discontinuance of petitioner's probationary employment was not in bad faith." (7). This appeal ensues (3). 8 • ARGUMENT THE DECISION TO RATE APPELLANT AS UNSATISFACTORY AND TO TERMINATE APPELLANT'S PROBATIONARY EMPLOYMENT WAS IRRATIONAL, MADE IN VIOLATION OF LAWFUL PROCEDURE, WAS ARBITRARY AND CAPRICIOUS, AND/OR MADE IN BAD FAITH Appellant claims that the unsatisfactory ratings were made in violation of the Chancellor's Rules and Regulations, which the Courts have held are "quasi-legislative prescription[s] which establish[] a course of conduct for the future." Lehman v. Board of Ed. of City School Dist. of City ofNew York, 82 A.D.2d 832, 833,439 N.Y.S.2d 670,672 (2d Dept.,l981). Without the support of the unsatisfactory ratings, the DOE's decision to terminate Ms. Mendez's probationary appointment was made in bad faith. This Court held that failing to observe an adversely rated teacher violated DOE's rating rules, which led to deficienc.ies in the review process which were "not merely technical, but undermined the integrity and fairness oftheprocess". Kolmel v. City ofNew York, 88 A.D.3d 527,528-9 (1st Dept., 20 11). In Kolmel, petitioner submitted evidence that the principal who made the detennination to award the 2008-2009 U-rating did not observe petitioner's teaching during either of his final two years at the school, which violated the DOE's rules concerning teacher rankings, which required at 9 • least one observation by the principal and pre-observation meetings with probationary teachers in danger ofU-ratings. The year-end report was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsuppmied by any evidence or contradicted by evidence in the report itself. Petitioner submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U- ratings without observing the teachers. The facts set forth herein are similar to those in Kolmel. Respondent has terminated a teacher, who, since 2007, has been receiving satisfactory ratings (13, 20). Ms. Mendez was given an unsatisfactory rating for her voluntary work during the Summer of 2011, based upon an alleged verbal shouting match with another teacher in front of schoolchildren, although she was given a Satisfactory end of year rating for the 2010-2011 school year, and Satisfactory observation reports for her summer work (28-31 ). Ms. Mendez never had a verbal shouting match with another teacher, but merely was discussing inconsistent information received by her and this other teacher from the school principal, while taking her children down to lunch (151-153). 10 • • When Ms. Mendez reached the cafeteria, she was summoned by Assistant Principal Colon. When Plaintiff arrived in AP Colon's office, AP Colon became confrontational, aggressive, and insisted that Plaintiff admit to this verbal shouting match (153-154). AP Colon even threatened Ms. Mendez with discipline for insubordination if she did not "confess" (153). Unlike in Brown v. Board ofEduc. of City School Dist. of City of New York, 89 A.D.3d 486, 932 N.Y.S.2d 64 (1st Dept., 2011), where the principal had witnesses the incidents upon which the rating was based, Ms. Mendez's principal, the only witness who testified for the DOE at the hearing related to the Summer 2011 rating, did not witness any of the underlying events. Although the DOE will argue this hearsay is acceptable in administrative hearings, Ms. Mendez had the benefit of a written statement from three other employees who witnessed the discussion first hand, and who contradicted the hearsay testimony of the Principal, which was rejected without reason and support by the Chancellor's Committee (9, 154, 160). 11 • Regarding the decision to terminate Ms. Mendez's probationary employment, the same defects present in Kohmel are present herein. According to the annual rating that provided the sole support for Ms. Mendez's discontinuance, Ms. Mendez's rating and discontinuance was based upon one, not two3, letters of misconduct, and one informal observation. Basing the rating and discontinuance on one informal observation violated the DOE's rules conceming teacher ratings, which require at least one formal observation by the principal and pre-observation meetings with probationary teachers in danger ofU-ratings, and the Union Contract (89, 155, 166). These facts are unlike those present in Cohn v. Bd. ofEduc., 102 A.D.3d 586 (1st Dept., 2013), where it was held that failure to hold a pre- observation conference did not deprive petitioner of a substantial right. The facts in Cohn that distinguish it from the case at bar is that the record there demonstrated that, after petitioner received aU-rating at the end of the prior school year, he was provided with a professional development plan at the start of the 2006-2007 and, throughout the year, received professional 3 Ms. Mendez explains that the two letters are actually one letter, as the first letter was not presented to Petitioner for her signature as required to have it placed in her file. The letters represent the same incident of alleged misconduct, and not two separate incidents (156). 12 • • support and had a series of classroom observations by the principal and two assistant principals, each documented by a detailed letter to him noting areas of improvement and making specific recommendations for addressing continuing deficiencies. Cohn does not preclude this Court from reversing the Court below, as it is clear and undisputed that the breadth of documentation submitted in Cohn was not submitted during Ms. Mendez's appeal. Ms. Mendez only received one formal observation, which was rated satisfactory, wherein Principal Colon noted that Ms. Mendez's classroom was safe and orderly, that her instruction was properly supported, and that her students were engaged (157, 161). In addition the 2011-12 APPR was completed by the principal in an arbitrary manner by rating her unsatisfactory in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Finally, Ms. Mendez also has alleged that the DOE violated its own due process rules as established in its Appeal Manual, when it failed to provide her with the documentation to be presented at the discontinuance hearing weeks prior thereto (123). 13 ; • • Ms. Mendez has established that that the deficiencies in the review process leading to her termination were not merely technical, but undermined the integrity and fairness of the process. Accordingly, the Summer 2011 Unsatisfactory Rating should be reversed and Ms. Mendez should be reinstated to her teaching position and be made whole with back pay and other emoluments of employment. 14 CONCLUSION For the foregoing reasons, Appellant has alleged and established that she was deprived of substantial rights during her appeal process and the Decision and Order of the Court below should be reversed, with such other and further relief as this Court may deem just and proper. In the alternative, the instant proceeding should be remanded to the Supreme Court and held in abeyance or marked off calendar pending receipt of the decision of the Chancellor's Committee with respect to Petitioner's 2011-12 APPR. Dated: Bronx, New York June 2, 2014 By: Respectfully submitted, RUTKIN & WOLF PLLC Attorneys for Petitioner-Appellant JASON M; :WOLF 910 Grand C~e, Ste. 1 F Bronx, New York 10451 (718) 410-0653 15 • PRINTING SPECIFICATION STATEMENT This brief was prepared with Microsoft Word 2013, using Times New Roman 14pt. for the body and Times New Roman 12pt. 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 2,415 words 16 CLED: NEW YORK COUNTY CLERK 01/02/20141 INDEX NO. l59J47/20l2 RECEIVED NYSCEF: Ol/02/20l4 SCEF DOC. NO. 22 1 • Pre-Argument Statement (pp. 1-2) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------~ ln the Matter of the Application of DIANE MENDEZ, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- NEW YORK CITY DEPARTMENT OF EDUCATION; DENNIS WALCOTT, CHANCELLOR OF NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. ---------------------------------------------------------------)( 1. TITLE OF ACTION: As set forth in caption. Index No. 159047/12 PRE-ARGUMENT STATEMENT -CIVIL 2. FULL NAMES OF ORIGINAL PARTIES AND ANY CHANGE IN THE PARTIES: As set forth in caption. There has been no change in the parties 3. NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR APPELLANT OR PLAINTIFF-APPELLANT: RUTKIN & WOLF PLLC 910 GRAND CONCOURSE SUITE IF BRONX, NEW YORK 10451 (718) 410-0653 4. NAME, ADDRESS, AND TELEPHONE NUMBER OF COUNSEL FOR DEFENDANTS-RESPONDENTS: MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street, 4th Fl. New York, NY 10007 • • • > 2 5. COURT AND COUNTY, OR ADMINISTRATIVE BODY, FROM WHICH APPEAL IS TAKEN: Supreme Court, New York County. 6. THE NATURE AND OBJECT OF THE CAUSE OF ACTION OR SPECIAL PROCEEDING: Petitioner brought this action pursuant to annul her termination, as well as two unsatisfactory ratings, and to seek reinstatement to her probationary teaching position. 7. RESULT REACHED IN THE COURT OR ADMINISTRATIVE BODY BELOW: The Court below granted denied the Petition in its entirety and dismissed the proceedings 8. GROUNDS FOR SEEKING REVERSAL, ANNULMENT, OR MODIFICATION: (1) The Court improperly ignored the fact that DOE did not follow the Chancellor's regulations with respect to administrative appeals; (2) The Court improperly decided that the "U"' rating for 2011-12 was premature to be heard since Petitioner had not exhausted her administrative remedies because if Petitioner waits until she gets a decision on the 2011-12 rating she will be timed-barred as more than four months would have passed from the date of the final determination; and (3) The Court ignored the fact that the arbitrator rejected hearsay testimony over first-hand accounts. 9. THERE IS NO RELATED ACTION OR PROCEEDING NOW PENDING IN ANY COURT OF THIS OR ANY OTHER JURISDICTION. 10. THERE IS NO ADDITIONAL APPEAL PENDING IN THIS ACTION. Dated: Bronx, New York, January 2, 2014 RUTKIN & WOLF PLLC Attorneys for Plaintiff By: Is/ Jason M. Wolf Jason M. Wolf, Esq. 910 Grand Concourse, Ste. 1 F Bronx, New York 10451 (718) 410-0653