Opinion
No. 103855/2012.
10-21-2016
In the Matter of the Application of Jeffrey HORNE, Petitioner, for a Judgment pursuant to Art. 78, CPLR, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; and Dennis M. Walcott, as Chancellor of the City of New York, Respondents.
Heslop & Kalba, Brooklyn, Attorney for Petitioner Borough Safety Director. New York City Law Department, New York, Attorney for Respondent Board of Education:
Heslop & Kalba, Brooklyn, Attorney for Petitioner Borough Safety Director.
New York City Law Department, New York, Attorney for Respondent Board of Education:
DORIS LING–COHAN, J.
In this Article 78 proceeding, petitioner Jeffrey Horne, a tenured educator with over 20 years of experience, seeks a judgment declaring that the actions of respondents The Board of Education of the City School District of the City of New York (DOE) and Dennis M. Walcott, as Chancellor of the City of New York (collectively, respondents), issuing and sustaining an unsatisfactory (U) rating for his 2010–2011 school year, were, among other things, arbitrary, capricious, and made in bad faith. Petitioner requests that the court reverse the unsatisfactory rating and replace it with a satisfactory one. Respondents answer and oppose the petition. Respondents argue, inter alia, that, the petition is barred by the statute of limitations and that their decision to give and sustain petitioner's an unsatisfactory rating was made reasonably and in good faith.
The court notes that it attempted to settle this matter amicably with the parties.
At the outset, it is noted that this Article 78 proceeding is not required to be transferred to the Appellate Division pursuant to CPLR 7804(g). Notwithstanding that a factual hearing was conducted before the Chancellor's Designated Committee, at which evidence was taken with respect to petitioner's appeal of the U rating, such hearing was held in accordance with the collective bargaining agreement, rather than "pursuant to direction by law". CPLR 7803(4) ; see also CPLR 7804(g) ; Matter of Kaufman v. Anker, 42 N.Y.2d 835 (1977) (hearing provided by the by-laws is not a hearing within the contemplation of CPLR 7803(4) requiring a transfer); Batyreva v. New York City Dept. of Educ., 50 AD3d 282 (1st Dept 2008) (rejecting petitioner's claim that matter challenging a U rating should have been transferred to the Appellate Division for a substantial evidence determination); Matter of James, 43 AD3d 764 (1st Dept) (proceeding challenging U rating improperly transferred to the Appellate Division pursuant to CPLR 7804(g), since appropriate standard was whether determination was arbitrary and capricious). Additionally, it was the Chancellor's Designee, not the hearing officer or committee, that made the ultimate determination which is the subject of the within proceeding. See Matter of Kaufman v. Anker, 42 N.Y.2d at 837. It is further noted that none of the parties have requested a transfer to the Appellate Division.
BACKGROUND AND FACTUAL ALLEGATIONS
Petitioner has been employed with the Department of Education (DOE) since 1989 and, prior to receipt of the subject U rating for the 2010–2011 school year, received only "satisfactory" ratings, which is the highest rating permitted. In 2004, after working in various positions such as teacher and assistant principal, petitioner was promoted to his current position of Borough Safety Director, at which he continued to receive only "satisfactory" ratings, until the subject rating for 2010–2011, given his new supervisor, as explained below.
As a Borough Safety Director, petitioner provides safety support to over 200 schools in four (4) school districts. Significantly, notwithstanding their claim that petitioner did not perform his job and duties in a satisfactory manner, the record reflects that at no time have respondents provided a written job description with required duties and expectations, for petitioner's position as Brooklyn Borough Safety Director, against which petitioner's performance could be measured. According to petitioner, however, and undisputed by respondents, his job duties include, the following:
Petitioner is assigned to four (4) school districts (13, 14, 15 & 16), which span throughout the borough of Brooklyn.
"a. Providing support to principals and assistant principals regarding safety and security of the schools, students and staff;
b. Assisting principals and assistant principals in areas of youth development and professional development;
c. Serving as a liaison with local police departments regarding school safety issues;
d. Reviewing school safety plans to help obtain plan certifications from the respective police departments."
Horne Aff, ¶ 6. Thus, petitioner's main responsibility was to ensure the safety and security of the 200 schools under his charge and to perform site visits to all 200 of the schools within the 180–day school year.
In 2009, after a restructuring, petitioner reported to a new supervisor, Harmon Unger (Unger). Unger's title is the Deputy CEO for Safety and Security within the School and Youth Development (OSYD), and he supervises 10 Borough Safety Directors, including petitioner. Notably, in petitioner's over 20 years of employment with the DOE, including approximately six (6) years in his present position of Borough Safety Director, petitioner did not receive any unsatisfactory ratings, prior to Unger's appointment.
Prior to receiving the subject U rating, on November 22, 2010, petitioner filed a complaint with the New York State Division of Human Rights (Division of Human Rights). Petitioner alleged that he suffered "racial discrimination" by Unger. For example, petitioner stated that none of the African Americans in the Borough Safety Director unit were made aware of training opportunities, and, thus, were foreclosed from promotions. Petitioner contends that, during a meeting with Unger in August 2009, he questioned Unger about his rationale for excluding certain Borough Safety Directors from the trainings. According to petitioner, Unger was "visibly annoyed." Horne Aff, ¶ 12.
Also, prior to receiving the subject U rating, petitioner amended his Division of Human Rights complaint in March 2011 to add a claim for retaliation. According to petitioner, Unger increasingly harassed petitioner after he filed the Division of Human Rights complaint. Petitioner describes this harassment as including, inter alia, the following: excessive emails demanding his immediate presence, in another borough other than his normal work site, for unnecessary and extremely inconvenient meetings , on short notice, using vague emails to threaten discipline, and assigning him a mentor without executing a clear plan of improvement. Petitioner believes that these tactics were being used by Unger in hopes that petitioner will eventually resign.
On January 18, 2012, the Division of Human Rights issued a no probable cause determination that respondents have engaged in or are engaging in the unlawful discriminatory practice of which petitioner complained.
Calling/emailing petitioner to attend an excessive number, "(at least forty-seven (47) and counting) unnecessary and extremely inconvenient meetings at Manhattan headquarters, in which he berated Horne for his job performance", which Horne was expected to attend, notwithstanding that as part of his core duties, he had to visit the 200 schools under his charge at least once during the 180–day school year and attend to school emergency incidents and other duties.
In June 2011, subsequent to the filing of the Division of Human Rights complaint, petitioner received his first U rating during his entire 20–year career with the DOE, for his 2010–2011 annual performance review. The Pedagogical Supervisory Personnel Report (personnel sheet), containing the U rating, was solely prepared by Unger and lists three (3) reasons for the U rating as follows: (1)performance; (2)insubordination; and (3)communication. The cursory explanation on the personnel sheet states the following:
"Jeff Horne received 3 letters for file this year and 3 file letters last year. All four [sic] letters were a result of poor performance in providing support to principals in order to keep students and staff safe. His performance is well below the expectations for a Borough Safety Director. Although his attendance has been consistently excellent, in the field, he has been unresponsive, and at times noncollaborative with other members of the safety team (OSYD) and with members from other agencies. Jeff must continue to work on this [sic] skills in the upcoming year. He also needs to be willing to accept support provided by myself (OSYD), in order for him to improve his skills. Instead, Jeff displays periods of insubordination and a lack of cooperation when such attempts have been made."
Petitioner's Exhibit C, at 4. Significantly, the three (3) "letters" referred to by Unger in the personnel sheet for the 2010/2011 school year were written solely by Unger, after the Human Rights complaint was filed and were of a generalized nature, lacking in specifics as to any alleged poor job performance and without supporting corroboration.
Petitioner's Appeal of the U Rating
Petitioner appealed the U rating with the Chancellor's Committee of the Office of Appeals and Reviews (Chancellor's Committee). A hearing was held on March 23, 2012, before a three-person panel, chaired by Michael Tremonte (Tremonte). Petitioner's union representative was present. Petitioner and Unger were the only testifying witnesses. In support of the U rating only three (3) documents were admitted into evidence by respondents, all prepared by Unger.
Petitioner complains that his representative had not previously met with him, was unprepared and did not effectively represent him.
The three (3) documents consisted of the U rating personnel sheet and two (2) of the three (3) letters written by Unger and placed in petitioner's file for the 2010–2011 school year, referred to by Unger in the U rating personnel sheet. The two (2) letters admitted into evidence, which had been placed in petitioner's file, were all prepared by Unger. Significantly, notwithstanding the filing of the Human Rights complaint, no testimony or documentary evidence was admitted into evidence by respondents, to corroborate Unger's testimony and the two (2) self-serving letters placed in petitioner's personnel file, written by Unger. Nor did respondents provide a job description or a list of required duties.
The two (2) letters admitted into evidence at the hearing are dated December 6, 2010 and May 12, 2011 and are summarized, in pertinent part, as follows:
The December 6, 2010 Letter
Unger wrote this letter to petitioner, identifying it as an "outline" for an alleged mentoring plan that was to be provided to petitioner. The letter states, with no specifics, the following, in relevant part:
"Specifically, you have displayed a consistent pattern of failing to respond in timely [sic] fashion to issues concerning school safety, and you have repeatedly failed to communicate appropriately with supervisors.
This plan will outline the steps that will be implemented over a defined period of time that will offer you:
A comprehensive understanding of the roles and responsibilities of a [Borough Safety Director].
A method to prioritize the daily responses of a [Borough Safety Director] to incidents that occur in the schools in order to be responsive to these schools, networks and central leadership.
A review of your facilitating skills to ensure effective training opportunities for staff members within your districts on a variety of safety issues."
Petitioner's Exhibit F, at 1. The letter concluded by informing petitioner that he would be assigned a mentor to help improve his skills as a Borough Safety Director. Significantly, the letter does not list any specific instances of allegedly bad job performance requiring such "mentoring" and fails to contain an actual description of the "roles and responsibilities of a [Borough Safety Director]", which the letter states that petitioner should have a "comprehensive understanding of". Id.
May 12, 2011 Letter
This letter consisted of Unger's description of two occasions in which petitioner allegedly left meetings early, without first receiving permission from Unger. With respect to a meeting on March 25, 2011, the letter indicated that lunch was announced for 12:45 p.m. and petitioner did not object to the scheduled lunch time. According to Unger, petitioner left the meeting and did not return for an important part of the meeting, the debriefing, which was held at 2:35 p.m. The letter concluded by stating the following, in pertinent part:
"At no time prior to 2:38 p.m. did you inform me that you were taking lunch at a different time than the rest of the team, or that you were unable to abide by the assessment schedule. As the assessment leader, I would have expected such communication from you if there was an issue.
During our meeting with your representative, you did not provide any information to explain your actions. I was extremely disappointed in your behavior and was embarrassed on behalf of OSYD by your absence from the debriefing. You remain non-communicative and non-responsive, and show a lack of respect for your role and the schools you are assigned to support."
Petitioner's Exhibit E, at 2. Unger also complained in the May 12, 2011 letter to file about petitioner leaving a March 17, 2011 meeting, prior to its completion and without prior permission.
Unger's Testimony in General
Unger testified that on September 30, 2010, he received an email from the " "Children's First Network Leader", whom he did not identify by name in his testimony. Nor was it mentioned in the December 6, 2010 or May 12, 2011 letters or the personnel sheet containing the U rating. According to Unger, this unnamed Network Leader expressed her opinion in such email that she was concerned about petitioner's effectiveness in handling school safety situations, at a particular school. Unger also testified that this Network Leader was not the first person to complain about petitioner, however, Unger did not name any of the other alleged complainants and none of such individuals-all of whom are employees of respondents-were produced at the hearing to corroborate Unger's bald complaints. Nor was the Network Leader's email admitted into evidence. Unger also failed to establish that the Network's Leader's opinion expressed in such alleged email pertained to the relevant period under review, or that the Network Leader had any basis for her alleged opinion, particularly given that the title "Network Leader" does not necessarily connote any expertise in school safety, for which petitioner was being rated on.
Unger further complained that petitioner "failed to appropriately keep OSYD informed regarding the status of safety conditions at his assigned schools ... the incident reports that [petitioner] does submit are at times lacking in details and difficult to comprehend." Petitioner's Exhibit H, Tr at 10. Significantly, however, Unger failed to refer to, or produce, any specific incident reports which were allegedly lacking; nor did Unger provide specific reasons that they were allegedly lacking. Moreover, as to the incident reports, notably, Unger did not complain in any of the letters which Unger had placed in petitioner's file for the 2010/2011 school year, that petitioner's reports were lacking, nor is it mentioned in the personnel sheet containing the U rating; thus, Unger's testimony at the hearing was the first time petitioner received any notice as to any allegedly insufficient incident reports.
Unger then complained that there were incidents where petitioner did not appropriately "respond" to the level of Unger's expectations, but conceded that there were varying definitions for "response". Id. at 18–19. Nonetheless, aside from generalizations, Unger failed to identify any specific incidents in which petitioner did not appropriately respond.
Unger also stated that petitioner has been "insubordinate" in that petitioner "refused" to attend meetings, without offering any specifics other than the two (2) previously relayed incidents, and testified, "I have repeatedly instructed [petitioner] to keep his Outlook calendar current and updated to reflect his availability, as I require all of my direct reports. But, [petitioner] has often failed to comply." Id. at 11. However, Unger failed to provide any details of alleged non-compliance or details of his claimed "repeated" instruction, in his testimony (nor in the documents admitted into evidence). Unger summarized that petitioner has an overriding "evasive" issue with authority, or, specifically, Unger's authority. Id. at 83.
Petitioner's Testimony in General
Petitioner testified about his dedication to the job and his numerous past satisfactory ratings. He stated, "[b]ecause I'm dedicated to kids, I've been working with young people for over 20 years, and had nothing but satisfactory ratings." Petitioner's Exhibit H, Tr. at 88. Petitioner also testified about his part in removing a number of schools from the list of "dangerous schools" and the numerous praises he received about his job performance from principals and other faculty and staff at his assigned schools.
Petitioner questioned Unger during the hearing by asking, if he had issues with petitioner's response to the schools, were there any principals who complained that petitioner did not follow up appropriately, with respect to any particular incident. Petitioner's Exhibit H, Tr. at 17. Significantly, Unger was unable to respond with the name of even one (1) complaining principal. Given Unger's failure, petitioner pointed out that clearly it was only Unger who was making meritless allegations of petitioner's alleged lack of response, rather than any principals.
Testimony by Unger and Petitioner Regarding the Meetings
With respect to Unger's March 17, 2011 meeting, Unger had complained (in his letter to file dated May 12, 2011) that petitioner left the meeting without prior permission. Petitioner testified, however, that Unger had previously directed petitioner to attend another meeting, a school safety meeting, also on March 17, 2011. Petitioner maintains that Unger forgot about this directive and then got upset when petitioner needed to leave Unger's meeting early.
As to Unger's meeting on March 25, 2011 (also complained about by Unger in the May 12, 2011 letter to file), petitioner testified that Unger asked him at the meeting, in person, to leave the room to attend to an emergency safety incident. Petitioner stated that he left the room around 1:30 p.m. At the hearing, petitioner showed Tremonte the emails he wrote on that date to other school officials regarding the safety incident to which petitioner attended and assisted, which substantiated that he was not AWOL from his work duties, but rather attending to a school safety emergency, which was indisputably a central part of his job duties. Petitioner continued that when he came back around 2:25 p.m., having worked through lunch dealing with a crisis, everyone was eating lunch. Since no one had bothered to order him lunch and all of the food had been eaten, therefore, around 2:30 p.m., he announced to the team and Unger that he was going to get lunch. Unbeknownst to petitioner, as soon as he left, Unger allegedly decided to hold an important part of the meeting (the debriefing), and emailed petitioner at 2:40 p.m., asking him where he was. Since the meeting was over by 3:15 p.m., petitioner returned to the school "to make sure everything was alright." Id. at 69.
Unger maintains that as to the March 17, 2011 meeting, he never gave petitioner permission to leave the meeting early but, significantly, respondents did not directly dispute that there was a school safety incident which petitioner went to address and that such was an important part of his job duties. Unger further testified that he did not direct petitioner to follow up with a safety issue during the March 25, 2011 meeting, but did not dispute that petitioner was working on a school safety incident, through lunch, having been shown the emails petitioner wrote on such day. Respondents failed to produce any witness to dispute that petitioner attended to a school safety emergency during either meeting.
Petitioner also testified that he was not insubordinate. For instance, he described an email from Unger written on November 24, 2011 at 11:30 a.m., asking him to attend a meeting at 1 p.m., when petitioner had a conflicting meeting. Petitioner claims that he contacted Unger and that Unger knew he had another meeting at that time. He testified, "why [would] it would be insubordination if I am emailing you back and forth about [it]" Id. at 40. Thus, petitioner maintains that contacting Unger by email and clarifying was not insubordination, but, rather was normal communication.
Petitioner further testified that he was not notified about one of the meetings scheduled for October 18, 2010, so his nonattendance was not intentional, nor "insubordination". He states that, as indicative of his dedication to his job, out of the entire school year, he had been absent one day and that he was always available. Consistent with such testimony, even Unger commended petitioner of his excellent attendance, as noted in the personnel sheet listing the U rating. See Petitioner's Exhibit C, at 4.
Testimony about the Mentors
Notwithstanding that no details were given of petitioner's alleged "persistent and extensive performance problems" (nor were they mentioned in any of the letters in petitioner's file for the 2010–2011 school year), Unger testified that, as a result, petitioner was assigned two different mentors. Petitioner's Exhibit H, Tr. at 9. Unger admitted that the first mentor did not work out because Unger felt petitioner and the mentor were too familiar with each other and that the second mentor was not assigned until May 2011, less than two (2) weeks before the school year ended. Id. at 15. Notwithstanding Unger's admissions, Unger nonetheless maintained that petitioner "rebuked" the mentors' attempts. Significantly, respondents failed to produce at the hearing any of the mentors—all employees of respondents-to corroborate Unger's claims, nor were details given.
Petitioner denied Unger's claims and testified that he did not understand why the first mentor was assigned to him, when the first mentor allegedly had five times as many incidents as petitioner did. Petitioner further maintained that the second mentor was given to him with only 12 days left in the school year. Petitioner testified in pertinent part, as follows:
"There's no question that I did not deserve a mentor. For eight years, I've been in the same districts. This is 13, 14, 15, and 16 areas. I have more than 300 emails with positive accolades from principals, superintendents, network leaders and other school staff.
I responded to thousands of telephone calls from school officials, parents, outside organizations throughout the year, letters from principals thanking me for setting up mentoring programs and positive character building presentations ..."
Id. at 42.
May 22, 2012 Chancellor's Committee Letter
It is unclear whether the Chancellor's Committee that conducted the hearing actually prepared a report, with findings and recommendations of the committee, and provided it to the Chancellor's Designee for review, prior to the Designee's issuance of the decision on petitioner's appeal, as required. See Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, Article 4, § 4.3.1. Notably, no report from the Chancellor's Committee has been supplied to the court, nor was it referred to by either party.
Nevertheless, subsequent to the hearing, by letter dated May 22, 2012, Chancellor Dennis M. Walcott's Designee (Chancellor's Designee) advised petitioner that his appeal was being denied and the issuance of the U rating was being sustained. The letter was a mere one (1) sentence in length and stated as follows: "Please be advised that the appeal of [petitioner's] rating of ‘[u]nsatisfactory’ for the period ending June, 2011 has been denied and the said rating is sustained as a consequence of failure to perform his duties as the Brooklyn Borough Safety Director to the satisfaction of his supervisors." Petitioner's Exhibit C (emphasis supplied). Such letter, however, fails to even mention the basis upon which the Chancellor's Designee issued the determination to sustain the U rating. Thereafter, petitioner served a notice of claim on respondents and commenced this proceeding.
The word "supervisors" was used despite that throughout the testimony and evidence in this record and before the hearing, the only "supervisor" mentioned was one-Unger.
Article 78 Proceeding
According to petitioner, the U rating lacks a rational basis, is arbitrary and capricious, made in bad faith and part of Unger's plan to place enough U ratings in petitioner's file to warrant terminating his employment, without justification. Petitioner alleges that the three (3) documents used as the basis of the U rating, all of which were written by Unger, were factually incorrect, as elaborated above, and totally uncorroborated. Petitioner maintains that he is being retaliated against by Unger because petitioner questioned Unger's rationale for excluding the African American Borough Safety Directors from a training (which affected their promotional opportunities) and his filing of a discrimination claim against Unger.
Petitioner maintains that his position of Brooklyn Borough Safety Director, job description, duties and performance did not change in the six (6) prior consecutive years in which he received satisfactory ratings. In fact, in his over 20 years at the DOE, he has only received satisfactory ratings. The only significant change as to petitioner's employment has been his change in supervisor.
Petitioner argues that Unger's allegations are conclusory and that there is absolutely no objective evidence that petitioner's response to the schools was ever inadequate. Although respondents rely "heavily on allegations of timely responses to the schools," respondents failed to produce even one corroborating principal or other witness, other than Unger himself, to testify at the hearing. Petition, ¶ 79. In fact, under questioning, Unger was unable to articulate even one name of any principal dissatisfied with petitioner's response to a school safety incident. To the contrary, petitioner referred to numerous letters from principals of the schools in which petitioner is assigned, showing praise for the way he handled their safety concerns.
Furthermore, according to petitioner, he was never given a real improvement plan, "offering positive guidance, templates on how [Unger] would like [petitioner] to report to him, or examples of how other safety directors meet his requirements." Horne Aff, ¶ 15. In addition, petitioner argues that respondents were not able to substantiate any claims that he acted unprofessionally with the mentors, especially since respondents failed to produce at the hearing his assigned mentors—all employees of respondents and under their control-to substantiate Unger's allegations. Petitioner also alleges that he has been harassed by Unger, namely with, inter alia, an excessive number of emails and calls, which demand petitioner's immediate presence, on short notice, at the Manhattan headquarters (when petitioner works in Brooklyn where he is assigned to 200 schools), for "unnecessary meetings" (more than 47 meetings), which would inhibit his ability to perform the central role of his job, which is to visit and ensure school safety for each of the 200 schools, during the 180 day school year, and threatening discipline. Petition, ¶ 22.
In sum, petitioner argues that the evidence given by Unger was "subjective, uncorroborated, and incredulous," and that the evidence demonstrates "not only that [petitioner] is not incompetent or insubordinate, but is extremely hardworking and proficient at his job, such that the decision to sustain the U rating can only be construed as irrational and arbitrary." Petition, ¶¶ 77, 87. Moreover, "[c]onsidering the many hundreds of school safety concerns and emergencies [petitioner] has successfully assisted and or resolved in his time as Borough Safety Director, Unger's conduct in giving [petitioner] a U rating based on a few fabricated and/or exaggerated incidents must not be permitted to stand." Id., ¶ 70.
As a result of the subject U rating, petitioner alleges, among other things, that he will be denied promotions and additional pay, and that he is looked at as a "dead man walking." Horne Aff, ¶ 80. He continues that the effect of a U rating in a career with the DOE is "devastating." Id., ¶ 78.
Respondents answered the petition and provided an affidavit from Unger. Unger essentially reiterates his hearing testimony, namely that petitioner refused to attend meetings and that petitioner was assigned a mentor to assist him with his performance. Respondents maintain, through Unger's affidavit, that he has "continually failed to appropriately keep OSYD informed regarding the status of safety conditions at petitioner's assigned schools." Unger Aff, ¶ 53. While respondents, for the first time, provide such examples in their answer of why, in their view, petitioner deserves an unsatisfactory rating, notably, the majority of these examples either occurred outside of the relevant school year (2010–2011), were not a part of the record in support of the 2010–2011 U rating, or were never raised at the hearing, and will be disregarded.
DISCUSSION
Statute of Limitations
In their answer, respondents argue that the petition should be barred in part due to the statute of limitations. However, as respondents concede in their supplemental memorandum of law, petitioner's challenge to the U rating is timely since the petition was commenced less than four (4) months after the chancellor's committee issued its final and binding determination. Matter of Hazeltine v. City of New York, 89 AD3d 613, 614 (1st Dept 2011).
Respondents further argue that petitioner's claims for discrimination are time-barred and that he should be precluded from introducing some of them as they were allegedly already resolved by the Division of Human Rights's no probable cause determination. However, respondents are mistaken. As petitioner maintains, the within proceeding does not involve a discrimination claim. Rather, any allegations by petitioner regarding discrimination are being utilized as a way to try and demonstrate one of the ways in which the issuance of the U rating was arbitrary and capricious. Thus, respondents' arguments with respect to statute of limitations are without merit.
Petitioner's U Rating
Standard of Review
Judicial review of the U rating is limited to whether it lacked a rational basis or was arbitrary and capricious. See CPLR 7803(3) ; see also Matter of Storman v. New York City Dept. of Educ ., 95 AD3d 776, 778 (1st Dept 2012). An agency's determination is considered arbitrary and capricious when it is taken "without sound basis in reason and is generally taken without regard to the facts." Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 (1974). "Rationality is what is reviewed [in] ... the arbitrary and capricious standard." Id. at 231.
Both the Issuance and Sustaining of the U Rating was Irrational and Arbitrary & Capricious
Applying such principles herein and upon the within record, as further explained below, both the issuing and sustaining of the U rating to petitioner for the 2010–2011 school year was irrational and arbitrary and capricious, as it was done without sound basis in reason or regard to the undisputed facts provided herein. See also Matter of Storman v. New York City Dept. of Educ., 95 AD3d at 778 (1st Dept 2012).
Only Two (2) Designated Ratings and no Written Job Description/Duties/Expectations
The court notes that in rating non-probationary educators as to their performance during the course of a school year, the DOE has only two (2) designated ratings: (1) satisfactory; and (2) unsatisfactory. See Petition, Exhibit B & C, Rating Sheet. While most employees, no doubt, can always perform his/her job a little better or more efficiently, focusing on a few trivial areas in which improvement could be had is not enough to warrant a U rating, particularly when a single supervisor's non-specific claims are entirely unsubstantiated and are not targeted to the employee's core duties (here, school safety).
Respondents, having failed throughout to provide (1) any reference to a written job description, duties or guidelines for petitioner's position as Borough Safety Director and (2) any other name, other than the one supervisor (Harmon Unger), nonetheless, argue that the standard used by the Chancellor's Designee that petitioner "did not perform ... as to his supervisors' expectations" is not irrational and not arbitrary and capricious. For the reasons explained below, this court disagrees.
Expecting an employee to respond to the subjective whims of a supervisor, with no written guidelines against which his performance in such a demanding job would be measured, other than merely "to the satisfaction of his supervisors", is arbitrary and capricious. Petitioner's Exhibit C (emphasis supplied). Notably, it is undisputed that petitioner, who has been employed with the DOE for over 20 years, received only satisfactory ratings, in all of the various positions which he has held, prior to Unger's appointment as petitioner's supervisor. As such, it would appear that based upon petitioner's history, extensive experience, previous excellent record, and that he held the current job title for approximately six (6) years without complaint, and his obvious dedication to his job as conceded by respondents (to wit, taking only one (1) sick day), particularly egregious behavior would have had to have been complained of, corroborated and substantiated, via admissible evidence, to warrant a U rating, at this point in his over 20–year career. Here, however, the facts allegedly relied upon by Unger to support the issuance of a U rating and the evidence presented by respondents at the hearing before the Chancellor's Committee, were lacking and consisted merely of conclusory, vague, hearsay and unsubstantiated allegations of deficiencies, by only one witness, Unger himself. Such vague and uncorroborated self-serving testimony is woefully insufficient to warrant the issuance and sustaining of the subject U rating. Moreover, Unger's testimony at the hearing with respect to incident reports prepared by petitioner which were allegedly lacking, offers no support for the U rating, as such complaint by Unger was not previously asserted in his letters to file for the 2010–2011 school year, nor mentioned in the personnel sheet he prepared. It appears that the issuance of a U rating to petitioner for the 2010–2011 school year was based more upon a personality conflict between petitioner and Unger, or because petitioner filed a discrimination claim, rather than any objective measure of "poor performance", as asserted in the U rating personnel sheet.
No Evidence of Poor Job Performance as to Safety
As a "Borough Safety Director", the core of petitioner's responsibilities is school safety. Yet, noticeably absent from the record is any objective evidence that petitioner's response to safety concerns, during the 2010–2011 school year, at the 200 schools he was assigned to, was ever untimely, inadequate or ineffective, other than the non-specific claim of Unger. In particular, there are no references to, or objective proof of, any specific incident(s) which may have compromised petitioner's position as a Borough Safety Director. In fact, even the self-serving letters to file submitted into evidence at the hearing for the 2010–2011 school year, which were both written by Unger and allegedly relied upon by him as a basis to justify his issuance of the U rating, make no mention of any specific complaints by principals or other DOE employees, at the hundreds of schools to which petitioner is assigned to safeguard. Moreover, respondents failed to produce even one principal or other school employee, to testify at the hearing to corroborate Unger's unsubstantiated, nonspecific allegations as to petitioner's alleged "poor performance in providing support to principals in order to keep students and staff safe". Petitioner's Exhibit C, at 4.
While Unger testified at the hearing that he received an email from the "Children's First Network Leader" in which she indicated that she was allegedly concerned about petitioner's effectiveness in handling school safety situations at a particular school and claimed that she was not the first person to complain about petitioner, significantly, neither the email, the alleged declarent, nor any other supporting proof, were admitted into evidence to corroborate Unger's subjective hearsay testimony. Moreover, the U rating personnel sheet did not even indicate that the U rating was being issued because of complaints from such unnamed "Children's First Network Leader", or any other DOE employees. Further, despite Unger's conclusory assertion that there were "others" who complained about petitioner's performance, Unger failed to identify any alleged complainants, even under direct questioning, casting doubt as to Unger's entire testimony. Nor did respondents produce these "other" complainants at the hearing. Nevertheless, it is noted that petitioner, nonetheless, countered and produced an email written by the principal of the actual school that the Children's First Network Leader allegedly referenced, in which the principal specifically praises petitioner's response to safety matters, refuting any such claim. Petitioner's Exhibit L. Such principal's email, dated October 8, 2010, stated, inter alia, as follows:
"I would like to give a special thanks for the on-site support of ... Safety Borough Director Jeffrey Horne ... Mr. Horne was extremely helpful in getting us the man power [sic] we needed to ensure the safety of all students. He made numerous calls and visits to the school to assess our needs ...".
Id.
Furthermore, Unger's testimony that there were incidents in which petitioner's "response" did not meet Unger's expectations, was lacking in any details or identification of any particular incident or ways in which petitioner's performance was allegedly not appropriate, and further undermined Unger's bald assertions. Unger also failed to offer any specifics or corroboration, as to his conclusory claims that petitioner failed to keep OSYD informed regarding the status of safety conditions at his assigned schools; nor were any allegedly deficient incident reports produced, to support Unger's testimony that they were, "at times", lacking. Petitioner's Exhibit H, Tr at 10.
To the contrary, petitioner testified as to numerous unsolicited emails from principals and other school personnel, actually praising petitioner's work. Certainly, if respondents wished to present evidence at the hearing about any alleged incidents of petitioner's ineffectiveness and untimeliness with respect to safety at particular schools, respondents could have easily done so, via witnesses and/or other proof of specific examples of actual complaints of unsatisfactory job performance. This court notes that all principals and school personnel would be within the actual control of respondents and, thus, respondents' failure to produce such witnesses at the hearing is a basis for an inference that such witnesses, if they indeed existed, would not have supported Unger's testimony. See PJI 1:75 (Missing Witness Charge) and cases cited therein. Respondents' failure to supply even one iota of objective proof of, inter alia, specific complaints as to any alleged poor performance with respect to school safety matters is indicative of the irrational and arbitrary and capricious nature of the issuance and sustaining of the U rating.
Respondents' Documentary Proof Also Conclusory & Subjective
Nor did the documentary proof admitted into evidence by respondents at the hearing justify the sustaining of the U rating as it merely consisted of three (3) self-serving conclusory and subjective documents from petitioner's DOE file , all prepared by Unger, with no corroborating documentation, or testimony from any other witnesses. As indicated earlier, in such documents, Unger merely complains in vague and general terms as to petitioner's alleged "poor performance" as Borough Safety Director, and, instead, offers specifics only as to two isolated occasions, when petitioner left two (2) meetings prior to their completion, which petitioner explains was a result of tending to competing school safety issues, at the direction of Unger. Where, as here, insufficient evidence is provided as to any significant incidents to support a U rating, such rating is considered to be irrational and arbitrary and capricious and cannot stand (see Deutsch v. New York City Dept. Of Educ., 41 Misc.3d 1228[A][Sup Court, N.Y. County 2013] [U rating based upon three (3) incidents considered arbitrary and capricious]; Hazeltine v. City of New York, 89 AD3d 613 [1st Dept 2011] [determination of Chancellor that U rating was warranted, based upon a mere two (2) incidents, lacked a rational basis and was arbitrary and capricious] ).
As indicated above, at the hearing respondents' only three (3) documents which were admitted evidence, which were all prepared by Unger and consisted of merely the following: (1) the U rating personnel sheet; (2) the December 6, 2010 letter; and (3) May 12, 2011 letter.
Claims of "Action Plan" Disingenuous
While respondents claim that petitioner's conduct warranted an "action plan" for improvement and submits the December 6, 2010 letter to support the issuing and sustaining of the U rating, as petitioner noted in his affidavit and, as evident from the wording of such letter, no actual remediation plan was ever offered to petitioner. Nor has any evidence been supplied as to any positive, constructive guidance offered to petitioner. The alleged "action plan" presented in such letter consisted merely of a vague list of criticisms, with no actual "outline [of] the steps that [were to] be implemented over a defined period of time.", despite a claim as to such. Petitioner's Exhibit F. Further, while it is undisputed that two (2) mentors were assigned to petitioner, it is also conceded by respondents that they were assigned for extremely brief periods of time (and in one case a mere 12 days before the end of the school year), such that any potential for guidance, or alleged needed improvement, would be futile.
As indicated, in particular, the first mentor was assigned for approximately only a month's time, during which schools were not in session for approximately ten (10) school days. Moreover, as conceded by respondents, such first mentor was removed by Unger, because he felt petitioner and the mentor were too familiar. It is also conceded that the second mentor was not assigned until only 12 days were left of the school year, at the end of which petitioner received the subject U rating.
Clearly such "action plan" was not a plan for improvement, aimed at success, but rather a mere opportunity to add generalized "complaints" to petitioner's file. Also, as indicated, while Unger testified in a conclusory fashion that petitioner "rebuked" the mentors' attempts, no specifics were offered by Unger, nor were the mentors produced at the hearing to support Unger's assertions that they had been "rebuked", or offer their opinions as to petitioner. As such, respondents' claims that an "action plan" was supplied to petitioner, prior to the issuance of the U rating, are disingenuous and further evidence that the issuance of the U rating was irrational, arbitrary and capricious and made in bad faith.
Respondents' Additional "Proof" Offered in this Article 78 Proceeding to Bolster their Claims are Lacking
Perhaps, in recognition that the evidence offered at the hearing was insufficient, respondents attempt to provide examples, for the first time, in their answer (albeit disputed by petitioner), as a way to bolster the unsatisfactory rating. The court, however, cannot consider such information at this juncture, as it was not previously presented to the Chancellor's Committee, and, nevertheless, was outside of the relevant performance review period (2010–2011). "[A]n argument may not be raised for the first time before the courts in an Article 78 proceeding." Matter of Peckham v. Calogero, 12 NY3d 424, 430 (2009) (internal citation and quotations omitted); see also Matter of Aronsky v. Board of Educ. Community School Dist. No. 22 of City of NY, 75 N.Y.2d 997, 1000 (1990)"Judicial review of an administrative determination is limited to the grounds invoked by the agency"). Moreover, it is also improper for respondents to now present additional documents, all outside of the relevant time period (2010–2011), in conjunction with this proceeding, when it does not appear that such "examples" were presented at the hearing before the Chancellor's Committee, nor do such documents appear to have been the basis for the initial U rating. "A U rating may not be based on documents not shown to the petitioner in advance of the hearing." Budnick v. New York City Dept. of Educ., 25 Misc.3d 1235(A), *7, 2009 N.Y. Slip Op 52425(U) (Sup Ct, N.Y. County 2009) ; see also Friedman v. Board of Educ., 109 AD3d 413 (1st Dept 2013).
Chancellor's Designee's May 22, 2011 Letter Sustaining the U Rating was Irrational and Arbitrary & Capricious
It appears that the Chancellor's Designee's decision, as provided in the May 22, 2011 letter, to deny petitioner's appeal and sustain the issuance of the U rating was a mere "rubber stamping" of the issuance of the U rating (which itself had not been supported by any corroborating proof), and, therefore, is irrational, arbitrary, capricious and taken without regard to the facts. See Schein v. New York City Dept of Education, 2012 N.Y. Slip Op. 32496(U) (Sup Court, N.Y. County 2012). Significantly, the May 22, 2011 letter contained only one (1) sentence, with no reference as to what, if anything, was reviewed and considered by the Chancellor's Designee, in the rendering of the decision to deny petitioner's appeal.
The one (1) sentence letter, provides as follows:
"Please be advised that the appeal of Mr. Jeffrey Horne's rating of ‘Unsatisfactory’ for the period ending June, 2011 has been denied and the said rating is sustained as a consequence of failure to perform his duties as the Brooklyn Borough Safety Director to the satisfaction of his supervisors."
Petitioner's Exhibit C. As explained below, the Chancellor's Designee's decision to deny the appeal and sustain the U rating was irrational and arbitrary and capricious for three (3) reasons.
First, the Chancellor's Designee does not indicate the basis upon which he has decided to sustain the U rating and deny the appeal. There is no indication that he reviewed and considered the transcript of the hearing and the admitted evidence in making the determination that petitioner failed "to perform his duties as the Brooklyn Borough Safety Director to the satisfaction of his supervisors". Nor is there an indication that the Designee even reviewed or relied upon a report containing the "findings and recommendations" of the Chancellor's Committee that conducted the hearing. In fact, there is no indication in the record before this court that a report containing the committee's "findings and recommendations" was ever prepared and submitted to the Chancellor's Designee, as specifically required pursuant to Article 4, Section 4.3.1 of the bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York (titled Appeals re Ratings). In fact, such a report is not a part of the record before this court, nor do respondents ever mention the existence of such a report. It is noted that the Chancellor's Designee's letter also does not ever indicate that the vague and conclusory personnel sheet was even relied upon in the rendering of the decision to sustain the U rating.
Pursuant to Article 4, Section 4.3.1 of the bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York (titled Appeals re Ratings), after a hearing before a committee designated by the Chancellor, "the findings and recommendations of the committee shall be submitted to the Chancellor for a final decision". See also Matter of Frasier v. Board of Educ. of the City School District of the City of New York, 71 N.Y.2d 763 (1988) ; Matter of Von Gizycki v. Levy, 3 AD3d 572 (2nd Dept 2004).
Second, the Chancellor's Designee provides in the May 22, 2012 letter that petitioner had not been performing his duties to "the satisfaction of his supervisors" (id., [emphasis added] ), which demonstrates that the Designee was operating under a flawed set of facts. The record and the testimony at the hearing was abundantly clear that there was only one allegedly dissatisfied supervisor, Unger, and the evidence submitted consisted merely of two (2) self-serving letters of dissatisfaction, written by only one individual, Unger as petitioner's supervisor, with no reference to any other dissatisfied "supervisors". Thus, the alleged explanation for sustaining the U rating is significantly flawed and lacked a rational basis and was arbitrary and capricious.
Third, the apparent criteria used by the Chancellor's Designee that petitioner had to have performed "to the satisfaction of his supervisors" is not an objective measure, is subject to potential abuse of power, and is arbitrary and capricious. Significantly, respondents have provided no job description, list of duties or guidelines against which petitioner was to have been objectively measured. For example, what if a supervisor "felt" that the employee's duties included getting him or her coffee and lunch every day and a U rating was given because the employee did not perform such duty "to the satisfaction of the supervisors". Under the subjective criteria apparently used herein, such could be grounds for the issuance of a U rating, which would be plainly wrong. Using such a non-objective criteria would permit the issuance of a U rating based upon the mere subjective opinion of a single dissatisfied supervisor, unsupported by any objective proof of poor job performance, rather than measuring an employee's performance against a governing written job description with listed duties, which would operate to provide the employee with a tangible set of expectations. If in fact Unger had been required to measure petitioner's performance under objective criteria (such as a written job description with specific duties) appropriately related to the central core of the duties of a Borough Safety Director—safety of the schools-a U rating would not have been given, as the crux of Unger's complaints, based on the objective evidence adduced at the hearing, at most, had to do with missing (in total or part of) a few meetings. Such is insufficient to warrant and sustain a U rating.
CONCLUSION AND ORDER
The court in rendering the within decision certainly does not condone any form of insubordination, substantiated poor job performance or lack of communication in the workplace, especially when it involves children and their safety; however, the allegations by respondents herein were vague, conclusory and/or uncorroborated or, at most, involve trivial isolated matters (such as missing an occasional meeting or leaving a meeting early on occasion to attend to other school safety related matters), and are therefore insufficient to support the issuance of a U rating, for an entire school year. Significantly, as indicated, Unger's testimony deviated dramatically from the personnel sheet and the two (2) self-serving letters admitted into evidence at the hearing, in that for the first time, he raised new claimed deficiencies (such as with respect to petitioner's incident reports). Further, Unger's affidavit submitted on this Article 78 proceeding, in which he asserts examples of petitioner's alleged "unsatisfactory" performance (examples which were not previously asserted), also differs materially from the admitted documents and Unger's testimony at the hearing.
As indicated above, none of the alleged unsubstantiated "incidents" referred to by Unger in his testimony, or the self-serving letters written by him which were submitted into evidence, even if true, were of such an egregious nature, to warrant the issuance of a U rating to petitioner, especially, in light of petitioner's history, his prior unblemished record of satisfactory ratings, significant evidence of praise by school principals and other personnel as to petitioner's excellent job performance as a Borough Safety Director during the 2010–2011 school year, his stellar attendance record and his obvious dedication to his over 20 year career with the DOE.
Clearly, petitioner's job is an extremely demanding one and entails great responsibility for securing safety at 200 public schools in the borough of Brooklyn-seemingly an "impossible" task, given so many societal factors impacting school safety. As it is undisputed that he was required to visit each school at least once, simple math would dictate that each day of the 180–day school year, petitioner was required to visit at least one (1) or two (2) schools, as part of his core duties, in addition to addressing school safety emergencies that would arise daily, as well as other duties. It is undisputed that some of the many serious emergencies at petitioner's assigned schools included incidents with knives, pipes, gang violence and allegations of rape. Even assuming that petitioner failed to update his "Outlook" calendar on occasion, or did not attend or left an occasional administrative meeting (all disputed by petitioner), located in another borough (Manhattan) rather than his work site (200 schools in Brooklyn), due to other conflicting school safety matters, which form the crux of Unger's "complaints", such isolated issues fall drastically short of the behavior which would warrant a U rating for an entire school year, under the within facts. Significantly, none of Unger's complaints, even if true, directly impacted petitioner's performance in ensuring the safety of the children and schools under his watch, which was his core responsibility. Rather, Unger's "complaints", other than the unsubstantiated ones which were non-specific, are more of a petty nature, given that petitioner is responsible for ensuring the safety of children and staff at over 200 schools. Under the within circumstances, the issuance of a U rating for the entire school year is so disproportionate to any of petitioner's alleged inappropriate behavior and, therefore, cannot stand(see Deutsch v. New York City Dept. Of Educ., 41 Misc.3d 1228[A], 2013 WL 6051263 at 10 ).
Thus, based upon the above, under the facts, circumstances and evidence presented herein, respondents' determination to issue and uphold the unsatisfactory rating for the 2010–2011 school year lacked a rational basis, was arbitrary and capricious and, therefore is hereby annulled. Accordingly, it is
ORDERED and ADJUDGED that the petition is granted to the extent that the determination as to the issuance and sustaining of the U rating for the 2010–2011 school year is deemed annulled and respondents are directed to expunge such U rating from petitioner's record; and it is further
ORDERED that within 30 days of entry of this order, petitioner shall serve a copy upon respondents, with notice of entry.