Opinion
100192/2016
01-19-2017
Lyhnn Brown, Petitioner, v. The City of New York; New York City Department of Education; Carmen Fariña, Chancellor of New York City Department Of Education, Respondents.
Petitioner Pro Se Lyhnn Brown For Respondents: Brian Polivy, Esq., Assistant Corporation Counsel to Zachary Carter, Esq., Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 (212) 356-0890
Petitioner Pro Se Lyhnn Brown For Respondents: Brian Polivy, Esq., Assistant Corporation Counsel to Zachary Carter, Esq., Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 (212) 356-0890 Kathryn E. Freed, J.
Petitioner Lyhnn Brown, acting pro se, commenced this article 75 proceeding for a judgment vacating an arbitration award made after a disciplinary hearing held pursuant to Education Law § 3020-b. The January 28, 2016 Opinion and Award (Award) found just cause for petitioner's termination from her employment with respondent New York City Department of Education (DOE). Respondents the City of New York, the DOE, and Carmen Fariña, as Chancellor of the DOE (collectively the DOE), cross-move to dismiss the petition, pursuant to Education Law § 3020-b (5), CPLR 3211 (a) (5), (7), 404 (a), and 7511. After oral argument, and after a review of the parties' papers and the relevant statutes and case law, the petition is denied, the cross motion is granted, and the proceeding is dismissed.
Petitioner incorrectly brought her petition under Education Law § 3020-a (5). Education Law § 3020-a had previously been the sole provision to terminate tenured teachers for incompetence. As explained below, effective July 2, 2015, Education Law § 3020-b provides an alternative process for terminating tenured teachers based on ineffective teaching.
According to the DOE, it is "[f]ormally, the Board of Education of the City School District of the City of New York." DOE's mem of law at 1.
BACKGROUND AND FACTUAL ALLEGATIONS
Prior to being terminated on January 28, 2016, petitioner had been employed by the DOE for over 25 years and was a tenured teacher. Most recently, she had been assigned to Public School 157 in The Bronx as a writing cluster teacher.
In September 2015, the DOE served petitioner with "specifications," or charges, alleging that, during the 2013-2014 and 2014-2015 school years, petitioner, among other things, demonstrated a pattern of ineffective teaching. Despite providing petitioner with a teacher improvement plan (TIP), the DOE alleged that petitioner did not show any improvement and was rated as "ineffective" for two consecutive years. A peer validator further agreed with the 2014-2015 "ineffective" annual professional performance review (APPR). As set forth in the charges, due to her ineffective teaching, the DOE maintained that a presumption of termination is warranted. Petitioner was charged with 11 specifications, of which the first four are set forth as follows:
A peer validator is "jointly selected by the UFT and the DOE, and that individual conducts three observations of the [petitioner] during the year." Tr of hearing at 12. The peer validator's scores are then calculated to see if they coincide with the "ineffective" review given by the supervisors to the teacher on the APPR.
Charges 5-11 are not at issue here.
"1. [Petitioner's] pedagogical practice was ineffective during the 2013-2014 school year.
"2. [Petitioner]'s pedagogical practice was ineffective during the 2014-2015 school year.
"3. Pursuant to the collective bargaining agreements between the Department of Education and United Federation of Teachers (hereinafter collectively referred to as the 'CBA'), a peer validator was appointed to evaluate [petitioner] in a manner consistent with Education Law § 3012 (c) during the 2014-2015 school year. The peer validator agreed with the overall 'ineffective' rating given to [petitioner] for the 2014-2015 school year.
"4. During the 2014-2015 school year, the Department developed and substantially implemented a teacher improvement plan, in accordance with Education Law § 3012 (c).
"The foregoing constitutes:
1. A pattern of ineffective teaching or performance pursuant to Education Law § 3012 (c) and a presumption that termination is warranted;DOE's exhibit 3 at 2-3.
2. Grounds for termination under Education Law § 3012 (c) (5-a) (j)/3020/3020(a);
3. Neglect of duty;
4. Incompetent and inefficient service;
5. Conduct unbecoming [petitioner's] position;
6. Conduct prejudicial to the good order, efficiency or discipline of the service;
7. Misconduct;
8. Substantial cause rendering [petitioner] unfit to properly perform obligations to the service; and
9. Just cause for termination."
Pursuant to Education Law § 3020-b, a hearing began on January 5, 2016 to determine the validity of the charges. As a result of recent changes in the Education Law, the DOE is no longer required to bring incompetence charges pursuant to Education Law § 3020-a. Effective July 2, 2015, Education Law § 3020-b provides "[s]treamlined removal procedures for teachers rated ineffective." Pursuant to Education Law § 3020-b, the DOE may bring charges of incompetence against any teacher who receives two consecutive "ineffective" ratings. In relevant part, the charges brought as a result of two consecutive "ineffective" ratings "shall allege that the employing board has developed and substantially implemented a [TIP] in accordance with section three thousand twelve-c . . . for the employee following the first evaluation in which the employee was rated ineffective . . . ." Education Law § 3020-b (2) (d).
Pursuant to Education Law § 3020-a, the DOE bore the burden of proving its charges by the preponderance of the evidence. However, now, as result of the statutory changes, the burden has shifted, and, after two consecutive "ineffective" ratings, it is up to the employee to rebut the presumption of incompetence. The new applicable standard is, in pertinent part, as follows:
"Legal standard. (A) Two consecutive ineffective ratings pursuant to annual professional performance reviews conducted in accordance with the provisions of section three thousand twelve-c or three thousand twelve-d of this article shall constitute prima facie evidence of incompetence that can be overcome only by clear and convincing evidence that the employee is not incompetent in light of all surrounding circumstances, and if not successfully overcome, the finding, absent extraordinary circumstances, shall be just cause for removal."Education Law § 3020-b (3) (c) (v).
Effective April 13, 2015, Education Law § 3012-c, as referenced above in Education Law § 3020-b, sets forth the way APPRs shall be conducted for teachers. In the current APPR reviews, teachers are rated either as highly effective, effective, developing or ineffective, "with explicit minimum and maximum scoring ranges for each category, for the state assessments and other comparable measures subcomponent of the evaluation and for the locally selected measures of student achievement subcomponent . . . ." Education Law § 3012-c (2) (a) (1). An APPR review of "ineffective" is warranted if the employee receives a composite effectiveness score of 0-64 out of 100.
Evaluations for teachers starting in the 2013-2014 school year can be partially based on either classroom observations performed by independent trained evaluators, classroom observations by trained peer teachers, and evidence of student development, among other criteria.Petitioner received an "ineffective" APPR for the 2013-2014 school year. She was provided with a TIP and assigned a peer validator. After receiving another "ineffective" rating for the 2014-2015 school year, the DOE preferred charges against petitioner.
Arbitration is compulsory in Education Law § 3020-b disputes pursuant to petitioner's collective bargaining agreement and the DOE's rules. Within 10 days of receiving the charges, the employee may request a hearing in front of a single hearing officer. Petitioner requested a hearing, and Hearing Officer Barry Goldman (H.O. Goldman) was appointed to preside over the proceedings. A hearing took place over three days, where both parties were entitled to examine and cross-examine witnesses and submit evidence. The DOE called seven witnesses and introduced 31 exhibits.
In his Opinion and Award (Award), H.O. Goldman explained that "the basic facts of this case are not in dispute." DOE's exhibit 1, Award at 3. He summarized that petitioner received two "ineffective" ratings, was provided with a TIP and was also evaluated by a peer validator who agreed with this rating. Goldman concluded that, pursuant to the statute, when this combination of facts are present, "[t]he pattern of ineffective teaching or performance shall give rise to a rebuttable presumption of incompetence and if the presumption is not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal." Id. at 4.
Although H.O. Goldman stated that he was "ruling here in a 3012-c case," he actually set forth the correct standard as stated in Education Law § 3020-b. Award at 4.
During the hearing, petitioner argued that she had been teaching for 27 years and had never received an unsatisfactory rating until the 2013-2014 school year. She believed that "the difference in her effectiveness came about when she received a new assignment to teach penmanship and when the [DOE]implemented the new Common Core standards, the Danielson Rubric, and the Advance system." Id. In the alternative, petitioner alleged that the DOE was trying to fire her for being sick.
H.O. Goldman found that there was just cause for petitioner's termination. In sum, he determined that the DOE had shown a pattern of ineffective teaching and that petitioner failed to rebut this presumption. He found that petitioner's failures were documented and that they were "credibly supported by the testimony of the Literacy Coach, the Principal, and the Peer Validator." Id. at 5. H.O. Goldman did not find any evidence that the DOE expected petitioner to "teach outside of her license or asked her to do any more than it asked of every other teacher in New York City." Id. at 4.
Stating that he wanted the record to be "clear," H.O. Goldman added that petitioner's absences played no role in his analysis. He continued that he confined his determination to the first four specifications, which referred to petitioner's ineffective teaching.
The record reflects that specifications 5-11 refer to, among other things, allegations that petitioner exercised poor judgment, acted unprofessionally and failed to follow school procedure.
H.O. Goldman held the following, in pertinent part:
"I find no support for the claim that [petitioner's] illness prevented her from providing effective instruction on the days she appeared for work. It was not because of her illness that [petitioner] failed to engage her students, failed to manage student behavior, failed to utilize effective discussion techniques, failed to assess her students, and failed to differentiate her instruction. It was not because of her illness that [petitioner] failed to implement the suggestions and strategies conveyed to her by the administration. And it was not because of her illness that [petitioner] failed to meet the goals of her [TIP]."Id. at 5.
Shortly after receiving the Award, petitioner commenced this proceeding.
THE PARTIES' CONTENTIONS
Petitioner argues that the penalty of termination is shocking and excessive given her many years of service with the DOE. She contends that incompetency charges are subjective and H.O. Goldman disregarded her testimony, only giving credence to the evaluations performed by the DOE. She further alleges that Education Law § 3012-c is "unlawful" and "illegally shifts the burden of proof to prove her innocence on the tenured teacher." Petition at 2. As a result, according to petitioner, H.O. Goldman's decision to uphold her termination is irrational and arbitrary and capricious. Petitioner also argues that H.O. Goldman issued a "boilerplate decision with no real analysis." Petition, ¶ 13. In addition, petitioner claims that she was not provided with proper remediation. In addition, petitioner maintains that she was penalized for legitimate medical concerns.The DOE maintains that petitioner cannot support her petition since the record substantiates that she was ineffective. According to the DOE, and as shown in the record presented during the hearing, petitioner received an "ineffective" rating for the 2013-2014 school year. For the 2014-2015 school year, petitioner was provided with a TIP that contained five areas of improvement and detailed steps on how to improve. However, petitioner's overall rating for the 2014-2015 school year was "ineffective."
In support of its argument, the DOE stresses that Petitioner was assigned a peer validator, Brandi LoPinto (LoPinto). LoPinto observed three of petitioner's lessons and gave her a peer validator score of "ineffective." In addition to LoPinto's observations, petitioner received three informal and one formal observation by her supervisors. Petitioner received either "ineffective" or "developing" scores on these evaluations. By way of example, Principal Ramona Duran (Duran) informally observed petitioner on March 18, 2014 and rated her "ineffective" in multiple categories. In the "demonstrating knowledge of content and pedagogy," category, Duran noted that petitioner "displays little or no understanding of the range of pedagogical approaches suitable to student learning of the content." DOE's exhibit 3 at 16. In the "managing classroom procedures" category, Duran stated that "much instructional time is lost due to inefficient classroom routines and procedures." Id. at 17. Duran found that the purpose of the lesson was unclear to students and that the procedures were confusing. She added that petitioner's explanation of the content contained major errors. Duran further noted that petitioner "is not alert to students' needs and contributes to school practices that result in some students being ill served by the school." Id. at 19.
Duran's evaluation notes reflect that she informed petitioner that the latter's lesson planning was not up to par and that her delivery was inconsistent. Duran told petitioner that she had been unprepared and that this noticeably impacted the students negatively. Duran noted that petitioner was being advised for the third time to meet with the Literacy Coach as petitioner had "not done much reaching out to date." Id. at 20. Duran concluded by stating that she had not seen much improvement in petitioner's "teaching/instructional delivery and as a matter of fact I am actually seeing a downward slide. Please read the Danielson Framework and discuss questions you may have with me and/or with Ms. Roopchand, the Literacy Coach." Id.
Although petitioner had been provided with a concrete TIP and options for remediation, the evaluations indicated that petitioner did not follow through with professional development. For example, on an informal class observation report dated May 22, 2014, Duran wrote the following:
"Next Steps: During the prior 4 informal observations you have been asked to see and meet with Ms. Roopchand the Lower House Literacy Coach and after checking with her I am disappointed that your meetings with her have been sporadic at best. Please note that I still do not see an improvement in your instructional preparation, instructional delivery, differentiation and assessment. Once again I am asking that you make appointments to see Ms. Roopchand in order to get some assistance with the items listed above."Id. at 29.
Several of the classroom observations conducted by petitioner's supervisors indicated that petitioner did not have a lesson plan while she was teaching. For instance, when Assistant Principal Katrina Fennell (Fennell) conducted an informal classroom observation on March 28, 2014, she stated that petitioner was ineffective. Fennell noted that petitioner did not have a lesson plan. As a result, petitioner is "not alert to students' needs. The teacher does not comply with school and district regulations, for example - having a lesson plan available for each class/lesson." Id. at 24. Fennell further indicated that there was "little teacher monitoring of student behavior," and that "[m]uch instructional time was lost due to inefficient classroom routines and procedures." Id. at 23.
Thus, according to the DOE, petitioner has failed to establish any basis for vacating the Award.
Although petitioner submitted reply papers, they do not correspond to the factual record and were not considered by the court. For example, she references alleged testimony that never occurred during the instant hearing, people who were not called as witnesses, and observation reports that were evidently from previous, and thus irrelevant, years.
DISCUSSION
As an initial matter, although not addressed by the parties, the City of New York is a distinct entity from the DOE. Perez v City of New York, 41 AD3d 378, 379 (1st Dept 2007). As a result, the City of New York is an "improper party to the action" and is dismissed as a respondent. Stepper v Department of Educ. of the City of NY, 104 AD3d 412, 412 (1st Dept 2013).
Pursuant to Education Law § 3020-b (5), CPLR 7511 provides the basis of review of an arbitrator's findings. CPLR 7511 limits the grounds for vacating an award to "misconduct, bias, excess of power or procedural defects [internal quotation marks and citation omitted]." Lackow v Department of Educ. (or "Board") of City of NY, 51 AD3d 563, 567 (1st Dept 2008). However, where, as here, the parties are subject to compulsory arbitration, the Appellate Division, First Department, has held that judicial scrutiny is greater than when parties voluntarily arbitrate. Id. The arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Id. The person challenging the award shoulders the "heavy burden" of vacating the award. Lehman Bros., Inc. v Cox, 10 NY3d 743, 744 (2008).
Alleged Procedural Violations:
Petitioner asserts that H.O. Goldman did not include enough information in the Award. Education Law § 3020-b (4) (a) states the following, in pertinent part, "[t]he written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state whether the penalty of dismissal shall be taken by the employing board."
This Court concludes, after a review of the full record, that H.O. Goldman's findings are sufficient for judicial review. H.O. Goldman satisfied the statute by setting forth written findings of fact for each charge, a conclusion and a recommendation to uphold the penalty of dismissal. Although not every aspect of the hearing is necessarily mentioned in the Award, there is no indication that H.O. Goldman did not consider all of the evidence before drafting the Award. H.O. Goldman stated in the Award that the failures documented in the written record were supported by the testimony.
As explained above, there is no specification as to the quantity of information required to be included in the Award. Courts have found that an award "must be in a form to enable the party aggrieved to understand its basis so as to permit intelligent challenge . . . and adequate judicial review [internal quotation marks and citations omitted]." Matter of Bader v Board of Educ. of Lansingburgh Cent. School Dist., 216 AD2d 708, 709 (3d Dept 1995).
Credibility Determinations:
Petitioner claims that the evaluations performed by her supervisors were subjective and that H.O. Goldman improperly credited them over any explanation given by petitioner. However, it is well settled that petitioner's contention regarding the credibility of witnesses is not a proper ground upon which to vacate an arbitration award. See e.g. Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012, 1013 (2d Dept 2009) ("When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists").
In addition, H.O. Goldman's determinations regarding petitioner's unsatisfactory classroom observations are also unreviewable, as a Hearing Officer has the authority to determine what weight, if any, to give to the evidence. Matter of Board of Educ. of Byram Hills Cent. School Dist. v Carlson, 72 AD3d 815, 815 (2d Dept 2010)("the hearing officer did not err in refusing to give substantial weight to the tape recording and the documents which had been submitted by the petitioner into evidence").
The Findings Were Rational and Were Not Arbitrary and Capricious:
An action is considered arbitrary and capricious "when it is taken without sound basis in reason or regard to the facts." Matter of Peckham v Calogero, 12 NY3d 424, 431 (2009). An arbitration award is considered irrational if there is "no proof whatever to justify the award [internal quotation marks and citation omitted] . . . ." Matter of Roberts v City of New York, 118 AD3d 615, 617 (1st Dept 2014).
Applying both standards to the present case, it was not irrational for H.O. Goldman to find that there was just cause to terminate petitioner. H.O. Goldman applied the standards set forth in Education Law § 3020-b by first requiring the DOE to establish prima facie incompetence. The DOE met this requirement by demonstrating that petitioner received two "ineffective" ratings conducted in accordance with section 3012-c. As one court noted, "[i]n this court's view, section 3020-b unmistakably overrides previous decisions by the Court of Appeals that required DOE to demonstrate, by a preponderance of the evidence, that the charged specifications were justified." Matter of Douglas v New York City Dept. of Educ., 52 Misc 3d 816, 828-829 (Sup Ct, NY County 2016). These ratings were supported by "unsatisfactory" observations conducted by both petitioner's supervisors and her peer evaluator.
H.O. Goldman noted that petitioner's failures were consistently documented in the record and that they were supported by credible evidence provided during the hearing. In addition, H.O. Goldman did not find that there were extraordinary circumstances that would permit rebuttal of the presumption of incompetence. He also addressed petitioner's allegations that she was fired due to an illness and found that petitioner's illness did not prevent her from providing effective instruction. He continued that petitioner failed to engage her students and failed to manage student behavior, among other things, and these failures are not a result of petitioner's illness.
Although the "unsatisfactory" observations were not individually addressed in the Award, the record presented at the hearing rationally supports the finding that petitioner was incompetent since she was unable to effectively teach and manage her students.
Additionally, the transcript indicates, for example, that LoPinto described at length why petitioner's classroom observations were "unsatisfactory." She testified, among other things, that petitioner's students were arguing with one another, that petitioner's questions to the students were of low cognitive challenge and that there was no new learning taking place during the lesson. DOE's exhibit 2, tr at 41, 43 and 44.
Petitioner claims that she was not provided with remediation. However, a review of the record indicates that the TIP was detailed and gave petitioner exact steps and strategies for improvement. Moreover, the record reflects that she did not take advantage of many professional development opportunities. Petitioner was offered one-on-one coaching, various professional development opportunities in and outside of school and received feedback from her supervisors who identified specific deficiencies and how to improve them. However, petitioner failed to improve. As a result, petitioner provides no basis to disturb the Award. See e.g. Matter of Carroll [Pirkle], 296 AD2d 755, 756 (3d Dept 2002) ("In other words, we must determine whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation]" [internal quotation marks and citation omitted]); see also Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560, 561 (2d Dept 1999) ("determination had a rational basis and is supported by the record.
The evidence at the hearing further supports H.O. Goldman's conclusion that petitioner's absences disrupted the educational process and adversely affected her students. Further, petitioner did not demonstrate any basis for vacating the determination pursuant to CPLR 7511.
Further, although petitioner asserts that H.O. Goldman's findings were arbitrary and capricious because Education Law § 3012-c unlawfully shifts the burden of proof of innocence to the tenured teacher (Pet., at 2), this contention is without merit. Education Law § 3020-b (v)(A), as recently amended, provides, in relevant part, that:
Two consecutive ineffective ratings pursuant to annual professional performance reviews conducted in accordance with the provisions of [§ 3012-c] of this article shall constitute prima facie evidence of incompetence that can only be overcome by clear and convincing evidence that the employee is not incompetent in light of all surrounding circumstances, and if not successfully overcome [by petitioner], the finding, absent extraordinary circumstances, shall be just cause for removal.2015 Sess. Law News of NY Ch. 56 at Subpart G, §4 (S. 2006-B) (McKinney's).
The amendment evidences "the Legislature's intent to create a streamlined hearing procedure for teachers accused of a pattern of incompetence, and to clarify the specific standard to be applied by hearing officers." Matter of Douglas v New York City Dept. of Educ., 52 Misc 3d, at 825. Thus, petitioner's argument that Education Law § 3012-c is illegal must fail. In any event, this proceeding is not the proper vehicle for a challenge to the legality of the statute, as such must be determined in a a declaratory judgment action. See New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 203-204 (1994). Even assuming, arguendo, that declaratory relief were sought herein, the absence of the Attorney General as a party further precludes petitioner from challenging the legality of the statute. Manhattan Stor. & Warehouse Co. v Movers & Warehousemen's Assn., 289 NY 82 (1942).
Penalty Appropriate and Not Shocking:
Petitioner argues that the penalty of termination is shocking, given that she has been teaching close to 30 years and that H.O. Goldman should have given her an alternative penalty to termination. However, the court finds that the penalty of termination is not excessive. Pursuant to the statutory language itself, the new streamlined removal procedures provide for termination of teachers with two consecutive "ineffective" ratings.
Courts have routinely upheld the penalty of termination when the teacher was found to have been incompetent. As held in Matter of Davis v New York City Bd./Dept. of Educ., 137 AD3d 716, 717 (1st Dept 2016), the penalty of termination was found not to be excessive when petitioner was provided with assistance to improve her teaching skills but she was unwilling or unable to adjust her teaching methods to comply with a supervisor's directives. See Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, 948 (2015) (when a teacher is found to be incompetent, even one with a long-standing, unblemished career, termination is not a shocking penalty); see also Matter of Benjamin v New York City Bd./Dept. of Educ., 105 AD3d 677, 678 (1st Dept 2013)(petitioner terminated after being charged with incompetent and inefficient service during three school years).
"An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." Matter of Idahosa v Farmingdale State Coll., 97 AD3d 580, 581 (2d Dept 2012). Given the record of repeated "ineffective" ratings documented by multiple people and petitioner's failure to follow through with the remediation provided to her, this Court concludes that the penalty of termination does not shock one's sense of fairness.
Award Upheld and Confirmed:
This Court notes that, upon the DOE's cross motion to dismiss, "the court will accept the facts as alleged in the [petition] as true, accord [petitioner] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (internal quotation marks and citation omitted). Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 484 (2009). However, for the reasons set forth above, petitioner cannot adequately plead a claim. Accordingly, petitioner's request to vacate the Award is denied in its entirety and the petition is dismissed.
Pursuant to CPLR 7511 (e), upon denial of a motion to vacate or modify an arbitration award, the court "shall confirm the award." As a result of this decision denying the petition, the Award must be confirmed and a "judgment shall be entered upon the confirmation of an award." CPLR 7514 (a).
CONCLUSION, ORDER AND JUDGMENT
In accordance with the foregoing, it is hereby:
ADJUDGED that the petition is denied and the proceeding is dismissed; and it is further,
ORDERED AND ADJUDGED that the cross motion by respondents the New York City Department of Education and Carmen Fariña, as Chancellor of the New York City Department of Education, is granted in its entirety and the January 28, 2016 Award is confirmed; and it is further,
ORDERED that this constitutes the decision and order of the court. Dated: January 19, 2017 KATHRYN E. FREED, J.S.C.