Moore v. N.Y.C. Dep't of Educ.

• Decision Date: 10 March 2014
• Docket Number: Index No. 106849/2011
• Citation: 2014 NY Slip Op 30819
• Parties: In the Matter of the Application of EDWARD MOORE, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent
• Court: New York Supreme Court

2014 NY Slip Op 30819

In the Matter of the Application of EDWARD MOORE, Petitioner,For a Judgment Pursuant to Article 78of the Civil Practice Law and Rules v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent

Index No. 106849/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46

DATED: March 10, 2014

DECISION AND ORDER

I. BACKGROUND

Petitioner commenced this proceeding pursuant to C.P.L.R. Article 78 challenging respondent's termination of his probationary employment as an assistant principal and respondent's unsatisfactory rating (U-rating) of petitioner's performance for the 2009-2010 school year.. Petitioner claimed respondent's determination was an abuse of discretion, because the penalty of termination was too severe considering his employment record, and arbitrary and in bad faith, because during his administrative appeal hearing respondent prevented him from presenting evidence of retaliation against him for reporting his principal's corporal punishment of a student. C.P.L.R. § 7803(3).

The court granted respondent's motion to dismiss the petition only insofar as it sought review of respondent's termination of petitioner's probationary employment, because morethan four months elapsed between June 21, 2010, the termination's effective date, and his commencement of this proceeding. C.P.L.R. § 217(1); Kahn v. New York City Dept. of Educ., 18 N.Y.3d 457, 462 (2012); Anderson v. Klein, 50 A.D.3d 296, 296 (1st Dep't 2008); Friedland v. New York City Dept. of Educ., 39 A.D.3d 395, 396 (1st Dep't 2007); Lipton v. New York City Bd. of Educ., 284 A.D.2d 140, 141 (1st Dep't 2001). Respondent answered, maintaining that the petition, even insofar as it seeks review of the U-rating, is barred by the statute of limitations and that petitioner fails to state a claim, because respondent acted rationally, in good faith without malice, and according the applicable statutes and regulations.

II. PETITIONER'S CHALLENGE TO THE U-RATING

Petitioner's challenge to the U-rating is timely since the determination of his unsatisfactory performance did not become final and binding until respondent denied his appeal and sustained the rating on May 10, 2011, less than four months before petitioner commenced this proceeding. Brown v. City of New York, 111 A.D.3d 426, 426 (1st Dep't 2013); Hazeltine v. City of New York, 89 A.D.3d 613, 614 (1st Dep't 2011). Petitioner raises no procedural infirmities in the U-rating, but claims that the principal's conclusions regarding petitioner's unsatisfactory performance were arbitrary and an abuse of power, based solely on the principal's personal aversion to petitioner and not on petitioner's professional performance.

Petitioner refers first to his expression of interest inMarch 2 009 in becoming a principal, but nowhere explains how or why his professional objective would cause the principal's animosity toward petitioner, nor is any such causal connection discernible from the record. While a personal bias on the principal's part may undermine his credibility, the record does not show any irrationality, bad faith, or other misconduct that would disqualify him as a rating officer. See Bienz v. Kelly, 73 A.D.3d 489, 490 (1st Dep't 2010); Che Lin Tsao v. Kelly, 28 A.D.3d 320, 321 (1st Dep't 2006).

The seven disciplinary letters from the principal to petitioner, issued in November and December 2009 and January, March, and April 2010, detail a consistent pattern of petitioner's failure to complete his assigned duties adequately and provide support for the teaching staff. V. Answer Ex. 2. Contrary to petitioner's contention that the letters were retaliatory, they show that three of the seven letters, addressing petitioner's performance deficiencies in October and November 2009, were issued before petitioner reported any allegation of corporal punishment by the principal on December 1, 2009. Id. The ensuing four letters are consistent in content and tone with the first three. They do not suddenly become irrational, malicious, or abusive. Even if the disciplinary letters may have been issued to create a record supporting the discontinuance of petitioner's probationary employment, they addressed specific deficiencies in his performance of his duties, such as his failure to follow the principal's directives, performassigned tasks, and maintain school records adequately, to rationally support a U-rating. Goonewardena v. State Workers Compensation Bd., 95 A.D.3d 638, 638 (1st Dec't 2012); Kolmel v. City of New York, 88 A.D.3d 527, 528 (1st Dep't 2011); Bienz v. Kelly, 73 A.D.3d at 490. See Friedman v. Board of Educ. of City School Dist. of City of N.Y., 109 A.D.3d 413, 414-15 (1st Dep't 2013).

Petitioner insists that his satisfactory rating for the 2008-2009 school year, notwithstanding his 33 absences, and his unsatisfactory rating for 2009-2010, when his absences totalled only 15, further demonstrates a retaliatory motive. Respondent's extension of petitioner's probationary period, which...