Opinion
100062/18
01-04-2019
In the Matter of the Application of Brian FORD, Petitioner, v. The BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK (a/k/a NYC DOE); Carmen Farina, Chancellor of NYC BOE, Respondents.
Petitioner: Brian Ford, pro se Respondents: Nicholas Green, New York City Law Department, 100 Church Street, New York, New York 10007
Petitioner: Brian Ford, pro se
Respondents: Nicholas Green, New York City Law Department, 100 Church Street, New York, New York 10007
Carmen Victoria St. George, J.
Petitioner Brian Ford (Ford), acting pro se, brings this CPLR Article 75 proceeding seeking an order and judgment vacating the Opinion and Award (Opinion) of Hearing Officer Robert Barron (HO Barron or the Hearing Officer), dated January 4, 2018, terminating petitioner's employment as a tenured teacher with respondent Board of Education of the City School District of the City of New York (DOE). Respondents DOE and Chancellor Carmen Farina (collectively, DOE) cross-move to dismiss the petition, pursuant to Education Law § 3020-a (5) and CPLR 404(a), CPLR 3211 (a) (7), and CPLR 7511.
Background
Petitioner is a certified high school social studies teacher who was employed by the DOE for 18 years. He began working for the DOE in 1995, and after teaching at a number of different schools, he was assigned to Bronx Guild High School (Bronx Guild) in 2005, and taught there for about 12 years, until his employment was terminated in 2017. Bronx Guild, which has since merged with another high school, had about 300 students in grades nine through twelve, about 30 per cent of which received special education services through Individualized Education Programs (IEPs); and 20-22 teachers, two assistant principals and a principal. Opinion at 4. Designed for small classes and to foster interpersonal relationships with teachers and students, Bronx Guild was an internship school, where students worked at internships two days a week, and attended regular classes the other three days. Id. ; Hearing Transcript (Tr.), at 50, 52.
Sam Decker was the principal of Bronx Guild from about 2005 until July 2017. Opinion at 4; Tr. 45-46. As principal, Decker changed the structure of the school from one where all learning was based around the internships to a more traditional one with traditional classes. Id. at 53-55. Cecily Rauner was an assistant principal during the 2015-2016 and 2016-2017 school years; Stephanie Downing was an assistant principal during the 2015-2016 school year; and Christine Ghaznawi was an assistant principal during the 2016-2017 school year. Opinion at 4-5. Every teacher at Bronx Guild was assigned a coach for the school year as part of the school's professional development efforts; Decker was petitioner's coach for the 2015-2016 and 2016-2017 school years. Tr. at 1097. During the 2016-2017 year, Ghaznawi attended most of Decker's coaching sessions with petitioner. Id. at 1099.
Prior to the 2013-2014 school year, teachers were evaluated "very informal[ly]," and rated as satisfactory or unsatisfactory. Id. at 63. Beginning in the 2013-2014 school year, teachers at Bronx Guild were evaluated using the Advance system and were rated as either highly effective, effective, developing, or ineffective (HEDI scale). See Education Law § 3012-d (3) ; Opinion at 6 n 7. The Advance system relies on the Danielson Rubric, which sets out 22 factors to consider when evaluating a teacher's performance. The DOE uses eight of the Danielson factors in the evaluation process, which are:
1a - Demonstrating knowledge of content and pedagogy;
1e - Designing coherent instruction;
2a - The classroom environment;
2d - Managing student behavior;
3b - Using questions and discussion techniques;
3c - Engaging students in learning;
3d - Using assessment in instruction; and
4e - Growing and developing professionally.
Id. at 5-6 n 6.
For each of the eight Danielson factors, teachers receive a HEDI rating, based on classroom observations. Under the Advance system, teachers have the option of being evaluated based on four informal or four formal observations, although new teachers and teachers on a teacher improvement plan are subject to six observations. Formal observations are at a pre-arranged time and include a pre-observation meeting with the teacher and observer. Informal observations, of at least 15 minutes, do not include a pre-observation meeting and generally are unannounced. Id. at 5.
Evaluators take notes during their observations, referred to as low inference notes, and subsequently use the notes to complete the teacher's Annual Professional Performance Review (APPR). Id. at 6. To determine a teacher's overall APPR rating for the year, using the HEDI scale, teachers are given a Measure of Teacher Practice (MOTP) score, based on the evaluations throughout the year, which is combined with a Measure of Student Learning (MOSL) score. The MOTP is 60 percent of the APPR rating, and the State and local MOSL scores together are 40 per cent of the APPR rating. Id. at 7.
Petitioner, who returned to Bronx Guild for the 2013-2014 school year after being on child care and personal affairs leave from 2010 through the 2012-2013 year, received an effective rating under the newly implemented evaluation system for the 2013-2014 year. Id. at 12. Petitioner otherwise received satisfactory ratings for all prior years except one. Petitioner was on a sabbatical during the Spring 2015 semester and did not receive an evaluation for the 2014-2015 year, and does not recall being observed during that year. For the 2015-2016 school year, petitioner received an ineffective MOTP score, based on three informal observations in November 2015, March 2016, and April 2016, conducted by Decker or Rauner (id. at 15, 17, 18), and an overall APPR rating of ineffective, although he received an effective MOSL score. See Ex. 4 to DOE Cross Motion (DOE Ex. 4), at 0012.
A fourth observation conducted on May 18, 2016, was ruled inadmissible in an administrative proceeding and was not considered by the Hearing Officer at the arbitration hearing. See Opinion at 15.
During the 2015-2016 year, Decker informally observed petitioner's class for the first time on November 20, 2015. Decker observed petitioner for twenty minutes, and rated him ineffective for all the Danielson factors except 4e (growing and developing professionally), for which he gave no rating. Decker's observation report noted, among other things, that petitioner did not deal with students' disrespectful behavior such as talking and yelling to each other and using profanity; that petitioner did not give clear instructions to the students about the in-class assignment they were given; and that petitioner did not ask questions that would engage the students. DOE Ex. 4, at 0001-0002.
Petitioner did not receive Decker's report until mid-March 2016, although he got feedback from Decker in December 2015, which was not positive. Prior to receipt of Decker's report, petitioner was informally observed on March 7, 2016, by Rauner. She observed petitioner's class for 15-20 minutes and also rated him ineffective on all eight Danielson factors, except 4e. Rauner testified that she was concerned that petitioner's learning objective was unclear and students could not focus. Tr at 835. Decker informally observed petitioner again on April 1, 2016, and gave him an ineffective rating on all eight Danielson factors, noting again that petitioner did not address students' disruptive behavior, that the lesson plan was not clear, and that the students were not engaged in the work, and further noting that petitioner was not using suggestions made at coaching sessions. DOE Ex. 4, at 0004-0005.
Decker was petitioner's main coach for the 2015-2016 year. Although Rauner testified that petitioner received weekly coaching and a co-teacher for support on occasion (Tr. at 868), she testified that she worked "just a bit" with petitioner in the Spring 2016 semester. Tr. at 837-838. Other than the oral feedback he got from Decker in December 2015, petitioner received no individual coaching from Decker, and no written feedback, prior to Rauner's March 7, 2016 observation. Opinion at 50. Because of the overall APPR ineffective rating for the 2015-2016 year, petitioner was placed on a Teacher Improvement Plan (TIP) for the 2016-2017 school year, which required him to meet weekly with a coach "to plan and reflect," review lesson plans and address other areas of concern identified in the TIP. DOE Ex. 4, at 0013. Decker drafted the TIP prior to meeting with petitioner to get his input, and denied petitioner's request to make a change in the TIP requirement to submit weekly lesson plans be submitted. Opinion at 20.
Throughout the 2016-2017 year, petitioner had frequent, if not weekly, coaching sessions with Decker and Ghaznawi, and Rauner on at least one occasion. Id. at 22-41. During the Spring 2017 semester, petitioner had additional sessions with Ghaznawi focused on lesson plans. Id. Petitioner testified that he also met with other teachers and sat in on some of their classes, actively participated in school-wide professional development sessions, and sought out other help. Id. He applied during the Spring 2017 semester to the Peer Intervention Program (PIP), and was accepted and wait listed for a spot when available. Id.
Decker informally observed petitioner on October 26, 2016, February 6, 2017, March 6, 2017, and April 28, 2017. See DOE Ex. 4, at 0017, 0020, 0029, 0034. Ghaznawi informally observed petitioner on November 30, 2016, and February 13, 2017. Id. at 0077, 0081. Decker consistently rated petitioner ineffective on six or more of the Danielson factors, notwithstanding the coaching sessions and additional help pursued by petitioner. Opinion at 23-25, 29-31, 35-37, 40-41. Ghaznawi rated petitioner, following her November 30, 2016 observation, as "developing" on six of the eight factors, and "ineffective" on two (1e - designing coherent instruction and 3c - engaging students in learning). Id. at 26-27. Following her February 13, 2017 observation, Ghaznawi rated petitioner as "developing" on five of the eight factors, and "ineffective" on three (1e - designing coherent instruction, 3c - engaging students in learning, and 3d - using assessment in instruction).
During the 2016-2017 year, a peer evaluator, Joshua Frost (Frost), also observed petitioner's class on three occasions. He rated petitioner as ineffective on the five Danielson factors he considered - 2a, 2d, 3b, 3c, 3d - on observations conducted on October 26, 2016 and March 1, 2017; and as developing on 2a and 2d, and ineffective on 3b, 3c, and 3d, on his April 26, 2017 observation. See DOE Ex. 4, at 0096-0100, 0108-0112, 0117-0122. As Frost explained, he gave petitioner a "developing" rating because he observed ineffective and effective elements. Tr. at 745-746.
For the 2016-2017 year, petitioner's overall APPR rating was "developing," based on a calculation of his "ineffective" MOTP rating and his "effective" MOSL rating. Opinion at 42; DOE Ex. 4, at 0075.
In June 2017, the DOE initiated a disciplinary proceeding against petitioner, pursuant to Education Law § 3020-a, for alleged "incompetent and inefficient service, neglect of duty, and unwillingness and/or inability to follow procedures and carry out normal duties during the 2015-2016 and 2016-2017 school years." The DOE served petitioner with "specifications," or charges, which, it claimed, constituted just cause for termination. See Specifications, DOE Ex. 1.
Petitioner was served with the following two specific charges:
1. During the 2015-2016 and 2016-2017 school years, [petitioner] failed to properly, adequately and/or effectively plan and/or execute separate lessons as observed on or about each of the following dates:
a. November 20, 2015;
b. March 6, 2016;
c. April 1, 2016;
d. October 26, 2016;
e. November 30, 2016;
f. February 6, 2017;
g. February 13, 2017;
h. March 6, 2017; and/or
i. April 28, 2017.
2. [Petitioner] failed, during the 2015-2016 and 2016-2017 school years, to fully and/or consistently implement directives and/or recommendations for pedagogical improvement and professional development provided in observation conferences with administrators and/or outside observers; instructional meetings; teacher improvement plans; one-on-one meetings with administrators, school based coaches and/or outside observers; as well as schoolwide professional development, with regard to:
a. Proper planning, pacing, and/or execution of lessons;
b. Using appropriate methods and/or techniques during lessons;
c. Designing coherent instruction;
d. Using assessment in instruction;
e. Student engagement;
f. Creating an environment of respect and rapport;
g. Managing student behavior; and/or
h. Using appropriate questioning and discussion techniques.
The DOE claimed that the above charges constituted:
1. Just cause for disciplinary action under Education Law § 3020-a ;
2. Incompetent and/or inefficient service;
3. Conduct unbecoming {petitioner's] position;
4. Conduct prejudicial to the good order, efficiency, or discipline of the service;
5. Neglect of duty;
6. Substantial cause rendering [petitioner] unfit to properly perform obligations to the service; and
7. Just cause for termination.
Pursuant to the mandatory arbitration provision of Education Law § 3020-a, a hearing was held before HO Barron over eleven days from September 26, 2017 to November 29, 2017. Both parties were represented by counsel and had an opportunity to call and examine witnesses, submit documentary evidence, and present arguments. Opinion at 2. The DOE witnesses included Decker, Rauner, Ghaznawi, and Frost. Petitioner testified and called as witnesses two teachers and former co-workers, Robin Link and Wyatt Matthews, and three students, identified as Student S, Student W and Student X.
The Hearing Officer, after considering all the testimony and other evidence, issued a 69-page Opinion and Award, addressing each specification, and its subparts, sustaining most, but not all, of the charges, and finding just cause for termination of petitioner's employment.
More particularly, with respect to each observation date charged in Specification 1 (1a-1i), HO Barron sustained Decker's ineffective ratings on all 8 Danielson factors for the November 20, 2015 observation (Opinion at 48-50); sustained Rauner's ineffective ratings for the March 7, 2016 observation only as to two factors (2a, 2d) related to classroom management, and dismissed the charge with respect to the other six factors (1a, 1e, 3b. 3c, 3d, 4e) for lack of evidence (id. at 50-51); and sustained Decker's ineffective ratings for his April 1, 2016 except dismissed the charge for factor 4e (growing and developing professionally). Id. at 51-53. HO Barron subsequently dismissed all remaining charges, arising from the 2016-2017 observations, based on an "ineffective" rating for factor 4e, finding that petitioner actively pursued professional development. Id. at 54, 56, 57-58, 59, 60.
HO Barron otherwise sustained the charges based on "ineffective" ratings by Decker for his observations on October 26, 2016, February 7, 2017, March 6, 2017, and April 28, 2017. Id. As to charges based on Ghaznawi's observations on November 30, 2016, rating petitioner "developing" on six factors and "ineffective" on two, HO Barron dismissed the charges based on "developing" ratings for factors 1a and 2a, and otherwise sustained the developing or ineffective ratings. Ghaznawi's ratings for her February 13, 2017 observation, rating petitioner "developing" for five factors and "ineffective" for three, was sustained.
HO Barron also sustained the Specification 2 charges, finding that petitioner consistently failed to design and implement effective lessons, notwithstanding petitioner's sincere belief that he was providing quality lessons, and despite "two years of input on the need to improve." Id. at 62. Based on his conclusions that petitioner was not an effective teacher and was given a fair opportunity to improve but did not and would not with additional professional development, the Hearing Officer found that termination of petitioner's employment was the appropriate penalty.
Legal Standards
Education Law § 3020-a (5) limits judicial review of a DOE hearing officer's decision to the grounds set forth in CPLR 7511. See City School Dist. of the City of New York v. McGraham , 17 NY3d 917, 919 (2011) ; Matter of Davis v. New York City Bd./Dept. of Educ. , 137 AD3d 716, 717 (1st Dept 2016). Under CPLR 7511 (b) (1), an award shall be vacated only upon a showing of " ‘misconduct, bias, excess of power or procedural defects.’ " Lackow v. Department of Educ. (or "Board") of City of NY, 51 AD3d 563, 567 (1st Dept 2008) (citation omitted); see CPLR 7511 (b) (1) (i-iv) ; Matter of Asch v. New York City Bd./Dept. of Educ. , 104 AD3d 415, 418 (1st Dept 2013) ; Austin v. Board of Educ. of City School Dist. of City of NY, 280 AD2d 365, 365 (1st Dept 2001).
"Where, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny." McGraham , 17 NY3d at 919. The hearing officer's "determination 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." Lackow, 51 AD3d at 567 ; see McGraham , 17 NY3d at 919 ; Matter of Santer v. Board of Educ. of E. Meadow Union Free School Dist. , 23 NY3d 251, 261 (2014) ; Matter of Brito v. Walcott , 115 AD3d 544, 545 (1st Dept 2014) ; Matter of Gongora v. New York City Dept. of Educ. , 98 AD3d 888, 889-890 (1st Dept 2012). Petitioner has the burden of establishing that the arbitration award was arbitrary and capricious, irrational, or otherwise invalid. See Lackow, 51 AD3d at 567.
An arbitrary and capricious determination is one that is "without sound basis in reason" and reached "without regard to the facts." Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974) ; see Matter of Peckham v. Calogero , 12 NY3d 424, 431 (2009). An arbitration award may be irrational when there is " ‘no proof whatever to justify the award.’ " Matter of Roberts v. City of New York , 118 AD3d 615, 617 (1st Dept 2014) (citation omitted).
"If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result." Matter of Peckham , 12 NY3d at 431. A court "cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one ... even where an arbitrator makes errors of law or fact." Matter of New York State Correctional Officers & Police Benevolent Assn. v. State of New York , 94 NY2d 321, 326 (1999). Further, because a hearing officer observes the witnesses and generally is in a better position to determine credibility issues, his or her credibility determinations " ‘are largely unreviewable.’ " Lackow , 51 AD3d at 568, quoting Matter of Berenhaus v. Ward , 70 NY2d 436, 443 (1987) ; see Matter of Asch , 104 AD3d at 420 ; Cipollaro v. New York City Dept. of Educ. , 83 AD3d 543, 544 (1st Dept 2011).
"The standard for reviewing a penalty imposed after a hearing pursuant to Education Law § 3020-a is whether the punishment of dismissal was so disproportionate to the offenses as to be shocking to the court's sense of fairness." Lackow , 51 AD3d at 569, citing Matter of Harris v. Mechanicville Cent. School Dist. , 45 NY2d 279, 284 (1978) and Matter of Pell , 34 NY2d at 233 ; see Matter of Asch , 104 AD3d at 421. "A penalty that shocks the conscience of the court and violates its fundamental sense of fairness may be set aside and remanded for a lesser (or harsher) penalty." Jean-Baptiste v. Department of Educ. of the City School Dist. of the City of NY , 2017 NY Misc LEXIS 2831, *9, 2017 NY Slip Op 31565(U), 2017 WL 3149332 (Sup Ct, NY County 2017), citing Matter of Pell , 34 NY2d at 231.
A teacher's unblemished long-term career may be considered in imposing a penalty (see Matter of Solis v. Department of Educ. of City of NY , 30 AD3d 532 [1st Dept 2006] ; Matter of Weinstein v. Department of Educ. of City of NY , 19 AD3d 165 [1st Dept 2005] ), but the hearing officer may also consider a teacher's unwillingness to implement suggestions and failure to take responsibility for his or her actions. See Matter of Davies v. New York City Dept. of Educ. , 117 AD3d 446, 447 (1st Dept 2014) Matter of Leon v. Department of Educ. of the City of New York , 115 AD3d 435, 436 (1st Dept 2014) ; Matter of Benjamin v. New York City Bd./Dept. of Educ. , 105 AD3d 677, 677 (1st Dept 2013). Thus, "even a long and previously unblemished record does not foreclose dismissal from being considered as an appropriate sanction." Matter of Rogers v. Sherburne-Earlville Cent. Sch. Dist. , 17 AD3d 823, 824-825 (3d Dept 2005) ; see Matter of Castle v. Maine-Endwell Cent. Sch. Dist. , 111 AD3d 1221, 1222 (3d Dept 2013) ; See Matter of Davies , 117 AD3d at 447.
Discussion
Petitioner challenges the Opinion as arbitrary and capricious, an abuse of discretion, irrational and a result of bias. See Petition, at 2. He argues that HO Barron was biased because he showed excessive deference to the DOE's testimony and ignored misconduct on its part; and that HO Barron, hearing his first SED case, was not competent to assess the adequacy of petitioner's pedagogy or whether petitioner was capable of being an effective teacher. He also contends that procedural irregularities of the DOE were not taken into account by the Hearing Officer and require vacating the Opinion.
The court finds no evidence of bias on the part of the Hearing Officer and no evidence of incompetency. See Pina-Pena v. New York City Dept. of Educ. , 2014 NY Misc LEXIS 1630, 2014 NY Slip Op 30893(U), 2014 WL 1414983 (Sup Ct, NY County 2014) ; Matter of Williams v. New York City Dept. of Educ. , 2014 NY Misc LEXIS 3829, 2014 NY Slip Op 32258(U) (Sup Ct, NY County 2014). Nor does the delay in issuing the arbitration award provide a basis for vacating the Opinion. While Education Law Section 3020(a) requires a hearing officer to render a decision within 30 days of the final hearing, a party waives the objection that an award was not made within the time required unless he notifies the arbitrator in writing of his objection prior to delivery. See CPLR 7507. Moreover, the Court of Appeals has held that a delayed award does not "constitute prejudice as a matter of law" ( Louis Harris and Assocs. v. deLeon , 84 NY2d 698, 702 [1994] ), and here, petitioner makes no showing of prejudice arising out of the delay. See Scollar v. Cece , 28 AD3d 317 (1st Dept 2006) ; Abreu v. New York City Dept. of Educ. , 43 Misc 3d 1215(A), 990 NYS2d 436, 2014 NY Slip Op 50647(U) (Sup Ct, NY County 2014).
Contrary to petitioner's contention, the record shows that the Hearing Officer carefully considered all the evidence, including witness testimony and documents demonstrating that administrative observers, as well as a peer observer, found that petitioner's classroom was not being well managed, that students were not behaving respectfully, that lesson plans were not being followed and students were not being engaged by petitioner's questions. While recognizing inconsistencies and inaccuracies in some of respondents' witnesses' testimony and documents, and crediting some of petitioner's challenges, the Hearing Officer found that respondents' witnesses were credible and supported the "ineffective" ratings given to petitioner. The court thus will not disturb the Hearing Officer's findings as to Specification 1, as there is adequate evidence in the record and a rational basis to support the Hearing Officer's determination.
As to specification 2, the court finds the evidence equivocal as to whether petitioner "fully or consistently implemented" directives or recommendations for improvement. There is, contrary to respondents' arguments, evidence that petitioner made repeated efforts to comply, and, notwithstanding his disagreements with Decker's approach, changed lesson plans and activities in his classroom, and worked on classroom management. He attended frequent coaching sessions with Decker and Ghaznawi during the 2016-2017 school year, attended professional development meetings at the school, consulted with and observed other teachers at the school, and incorporated practices of other teachers. On his own, he applied for and was accepted to the Peer Intervention Program, which placed him on a priority wait list for the next year.
Nonetheless, the court, again, does not disturb the Hearing Officer's findings on this specification, as they depend in large part on the credibility of the witnesses as to what recommendations were given and what changes were or were not implemented and observed as a result of the TIP coaching and other help received by petitioner.
The court finds, however, that the penalty of termination is, under the circumstances, shocking to one's sense of fairness. Petitioner taught for 18 years, with no prior disciplinary proceedings and satisfactory or effective ratings for all but one year prior to the 2015-2016 year. It is not disputed that he was a caring, dedicated and respectful teacher, and it is not disputed that he sought assistance in a variety of ways to improve his skills, even if he did not agree with Decker's evaluation of his deficiencies. Evidence does not support a finding that he rejected suggestions or refused to acknowledge his weaknesses, although he disagreed with some of the specific suggestions and criticisms.
Further, petitioner's "ineffective" rating for 2015-2016 was based on only three observations, one late in the fall semester and two in the spring semester, and, although Decker spoke to petitioner in December 2015 about his November observation, petitioner received no written feedback until mid-March 2016. There also is no evidence that he had any individualized coaching sessions with Decker between December 2015 and April or May 2016.
As to finding that petitioner was unwilling to acknowledge his performance deficiencies and could not be rehabilitated, evidence shows that petitioner, even if imperfectly, complied with the TIP requirements and followed suggestions, including revising lesson plans, incorporating different activities, modifying the kinds of questions he asked, and monitoring classroom behavior. He consistently sought out additional help, and notably, was accepted into the PIP program in Spring 2017 and advised a spot might be available during the next school year.
Moreover, while courts have repeatedly upheld the penalty of termination of a tenured teacher when a teacher receives an ineffective APPR rating in two consecutive years (see e.g. Ferraro v. Farina , 156 AD3d 549 [1st Dept 2017] ; Matter of Mazzella v. Bedford Cent. School Dist. , 154 AD3d 761 [2d Dept 2017] ), or the record supports a finding that a teacher was professionally incompetent for a sustained period (see e.g. Russo v. New York City Dept. of Educ. , 25 NY3d 946 [2015] ), petitioner here did not receive two consecutive ineffective ratings, and his performance evaluation was based on less than a full two year period. Compare Morales v. New York City Bd./Dept. of Educ. , 150 AD3d 468 (1st Dept 2017) ; Matter of Reed v. Department of Educ. of City of NY , 134 AD3d 499 (1st Dept 2015) ; Matter of Benjamin v. New York City Bd./Dept. of Educ. , 105 AD3d 677 (1st Dept 2013). Notably also, by the DOE's own standards, petitioner's performance improved from one year to the next, moving up a step on the HEDI scale from an "ineffective" rating for the 2015-2016 year to "developing" in 2016-2017 year. Given petitioner's long-term satisfactory performance, his acknowledgment that 2014-2015 was not his best year, his efforts to get help to address weaknesses and make improvements, and his dedication to his students, the finding that he could not further improve is not supported by the evidence and the penalty of termination is not warranted. See Matter of Beriguete v. New York City Dept. of Educ. , 53 Misc 3d 347, 36 NYS3d 556, 2016 NY Slip Op 26229 (Sup Ct, NY County 2016).
Accordingly, it is
ORDERED that respondents' cross motion to dismiss the petition is denied; and it is further
ORDERED and ADJUDGED that the petition is granted solely to the extent that the finding of just cause for termination is vacated and the matter is remanded to DOE for determination of an appropriate lesser penalty. See e.g. Ward-Bourne v. Department of Educ. of City of NY , 2018 NY Misc LEXIS 2065, 2018 NY Slip Op 31047(U), 2018 WL 2416469 (Sup Ct, NY County 2018) ; Matter of Williams , 2014 NY Misc LEXIS 3829.