Summary
In Mangone, the court denied the Board's motion to dismiss the teacher's petition which challenged, among other things, an unsatisfactory rating.
Summary of this case from Smith v. Bd. of Edu. of City Sch. Dist. of N.Y.Opinion
0117353/2006.
August 3, 2007.
DECISION AND ORDER
This proceeding was commenced by Petitioner Richard M. Mangone ("Mangone") a New York City high school teacher, by motion made on November 3, 2006, pursuant to Civil Practice Law and Rules, ("CPLR") Article 78, to set aside the action of Respondent Joel Klein, as Chancellor of Education of the school district of the City of New York ("DOE"), denying his appeal of an "unsatisfactory" rating, to direct Respondent to change such evaluation, and to pay Mangone salary for a certain position for summer school in 2005 (the "Position") to which he was not appointed. The City of New York (the "City") is also named as a respondent. Mangone claims that his evaluation rating of unsatisfactory was improper "because it was based on the letter which had been removed from his personnel file." Mangone had initially appealed this rating up to the Chancellor and it was the Chancellor's decision confirming the rating (the "Decision") which is the subject of this proceeding.
Mangone claims the Decision was made in bad faith, was arbitrary and capricious, and constituted gross error, and that the denial or withdrawal of Mangone's paid summer position for the summer of 2005 rating was in bad faith, was arbitrary and capricious, and constituted gross error. Mangone further asks this Court to direct DOE to change his evaluation for the 2004-2005 school year from "unsatisfactory" to "satisfactory" and to pay Mangone for his salary for the withdrawn 2005 paid summer school position.
DOE and the City, instead of answering the Petition, cross moved on February 2, 2006, to dismiss the Petition on the grounds that (1) the Court lacks subject matter jurisdiction over Mangone's claims relating to the Position, and (2) that the Petition fails to state a cause of action, and also to dismiss the proceeding against the City as it is not a proper party. Thus, for the purposes of this Decision and Order, the Court must assume that the facts are as alleged by Mangone. Respondents also seek leave to answer Mangone's Petition if this Court does not grant their Cross Motion to Dismiss in its entirety.
FACTS
Mangone was a tenured high school social studies teacher at Lafayette High School ("Lafayette") in Brooklyn. His employment was covered by a Collective Bargaining Agreement ("Agreement") entered into between his Union and DOE. On November 29, 2004, Mangone allegedly verbally abused and corporally punished a student in a classroom.
On December 13, 2004, Mangone, accompanied by his Union representative, met with Alan J. Siegel ("Siegel"), the principal of Lafayette in connection with the allegations. On December 23, 2004, Siegel gave Mangone a letter (the "Letter") which recited that at the meeting, Mangone and his representative were given a copy of Mangone's statement denying the incident and the statement of the student alleging the incident. Siegel also orally advised Mangone of the substance of statements allegedly made by eight other students present at the time of the alleged incident but did not show Mangone copies of such statements. Mangone did not comment or refute or explained his actions or inquire further as to the other students' statements although he was given a chance to do so. The Letter further recited that Siegel found that Mangone had verbally abused the student and directed Mangone to "cease and desist from this inappropriate and unprofessional behavior," and advised Mangone that a failure to comply could lead to "further disciplinary actions and negatively affect" Mangone's end of year rating. This letter was placed in Mangone's personnel file.
Mangone commenced a grievance proceeding as provided in the Agreement to remove the Letter from his file on the grounds that Siegel's finding was not based on any investigation and that Mangone did not see the evidence other than the complaining student's statement and have an opportunity to address it. The first step of such grievance proceeding was to request Siegel to review the grievance. After Siegel denied the grievance on June 15, 2005, Mangone proceeded to the next level of the grievance process, i.e. arbitration. Before the arbitration was completed, Siegel rated Mangone unsatisfactory for the school year and withdrew Mangone's appointment to the Position, which had been previously made.
On April 12, 2006, the arbitrator heard Mangone's grievance and upheld his grievance ordering that the Letter be removed from his file. This arbitration decision made it clear that the arbitrator had not determined the merits of the underlying facts and that such facts might be otherwise established and placed into Mangone's file without reference to the Letter.
Mangone then sought a review of his unsatisfactory rating, claiming that his rating review was improper as once the letter became a nullity there was nothing else in his file to support such a rating. This review led to an appeal went before an appeal conference held on June 9, 2006. At this conference, the issue as to what the information the panel could use in determining Mangone's appeal was raised. Mangone objected to the consideration of the Letter, by reason of the arbitration decision, and to the consideration of certain A-421 report and Mangone's own report of the incident as neither were in his file. The chair of the appeals panel supported Mangone as to the Letter, but allowed the A-421 report and Mangone's accident report to be considered and considered them for the purpose of the appeal. Siegel, who was no longer principal of Lafayette, did not testify in the review process and the current principal of Lafayette, who testified by telephone, stated that she had no personal knowledge of the matter. No other evidence was presented. The Deputy Commissioner, based on a decision against Mangone by the appeal panel, denied Mangone's appeal. It is such denial which Mangone seeks to review in this proceeding.
The procedure for the review of teachers is set forth in Appendix I to the Chancellor's Special Circular. No. 45, dated April 10, 1998 ("Circular 45") which provides that evaluations must be based on material in the teacher's file. "[A] certification of unsatisfactory. . .shall be accompanied by appropriate supporting data." Regulation 389.7. Here, Mangone's file, absent the Letter, contained no material relating to the Incident. Mangone, by objecting to both documents not in his file, preserved this issue for review.
The process of placement of material into a teacher's file requires that the teacher be given notice and a copy of such material and the right to annex a statement of explanation and to seek its removal.
If the facts are as presented by Mangone and there are no other relevant facts, it would appear that the unsatisfactory rating was issued in violation of procedures mandated by Law, i.e. Circular 45 which has the force of law. See, e.g. Bonilla v. Board of Educ., 286 AD2d 548 (2nd Dept. 2001), (setting aside an unsatisfactory rating by the City Board of Education on the grounds that the rating was not preceded by an inspection of Petitioner's work and consultation with him).
Mangone contends that rating process as set forth in Circular 45 which provides that an unsatisfactory rating must be sustained by material in a teacher's file, controls the rating process of teachers in the City School District. Mangone asserts that DOE's consideration of material not in his file requires this Court to grant his petition. DOE, after referring to Circular 45 as a "Handbook," asserts that Circular 45 does not have the force of law, citing Roberts v. City of New York, 3 Misc.3d 549 (Sup.Ct. NY Co. 2003), aff'd mem, 21 AD3d 329 (1st Dept. 2005). In Roberts, this Court found that a Layoff Manual, prepared to advise city managers how to lay off employees was a "how to" manual, and did not create additional notice rights for employees. The Layoff Manual suggested giving workers to be laid off thirty days notice, notwithstanding that their union contract required only twenty. This Court found, as a matter of fact, that such provision of the Layoff Manual was intended to avoid "some glitches in giving notice" rather than extend the 20 day notice period. DOE, in referring to Circular 45 as a Handbook, attempts to characterize it as having a status similar to the Layoff Manual in Roberts, i.e. a document which is perhaps useful, but certainly not binding, and to require such a rating as a matter of law. For the purpose of this motion, the Court does not agree. State Education Law requires standards for rating to be set by DOE regulation. As Mangone has asserted that Circular 45 in fact is the product of such obligation, this Court is on this motion bound to such factual assertion. In any event, the State Education Commissioner, the administrator of the education system of the State, treats Circular 45 as one having the force of a regulation. SeeDourie, supra.
While DOE's quotation of the language of the case is correct, its citation in its brief contains three errors. First, the correct appellate citation is 21 AD3d 329, not 20 AD3d 44, second, the page citation for the quotation is 557 not 556 and third, the opinion was issued by this Court, not Justice Stallman.
As this matter is being determined on a motion to dismiss, there are no facts other than those in Mangone's petition, which may be considered by this Court.
Cf the issue in Roberts, supra, where binding union agreement, clearly covered the notice issue
Accordingly, this Court rejects DOE's contention that Circular 45 does not, as a matter of law, bind DOE, and finds, at least for the purpose of this motion, that Circular 45 establishes the proper procedure for rating which must be followed. To the extent the grievance procedure for arbitration to remove documents "wrongfully" placed in a teacher's file has any meaning, it must mean that once a document is removed from a teacher's file, it cannot be resurrected so as to adversely affect a teacher.
DOE asserts that Fahey v. DOE, 16 AD3d 220 (1st Dept. 2005) which it claims is indistinguishable from the instant case, requires Mangone's petition to be dismissed on this motion, without the need to answer and supply any other facts.
Fahey was accused of corporeally punishing two students, was given a letter by his principal to such effect, had received an unsatisfactory rating and won an arbitration to have such letter removed from his file. While the First Department decision in Fahey seems dispositive, Judge Feinman's decision below, which upheld Fahey's unsatisfactory rating and which was affirmed, found that Fahey's file contained additional material in addition to the letter as well as "unsatisfactory" evaluations of supervision finding Fahey deficient in the areas of "professional attitude," "control of class" "planning and preparation" and "attention to pupil health and general welfare." (Sup.Ct., NY County, March 5, 2004).
Mangone contends that instead of Fahey, the decision of the New York State Commissioner of Education in Appeal of Dourie, (No. 15506, December 22, 2006) controls. In Dourie, the State Education Commissioner reversed a decision of DOE which had upheld an unsatisfactory rating given to Dourie for 2004. Dourie had also been accused of verbally and physically abusing a student. After an investigation by a deputy principal which concluded that Dourie had verbally, but not physically, abused a student, a letter to such effect, dated June 7, 2006, was placed in Dourie's file. Dourie was subsequently rated unsatisfactory by her principal. Subsequently, on November 2, 2005, an arbitrator ordered the letter deleted from Dourie's file. Nonetheless, on March 21, 2006 the Chancellor's designee sustained Dourie's principal's unsatisfactory rating "as a consequence of a substantiated allegation of verbal abuse."
DOE asserts that this Court may not follow Dourie, a decision of the State Education Commissioner because it is bound by Fahey, a First Department decision. To the extent Fahey applies, DOE is correct. However, the First Department decision in Fahey is a fifteen line memorandum decision of which only the following seven lines are relevant.
"Respondent's determination to sustain the unsatisfactory performance evaluation was rationally based on administrative findings that petitioner twice corporally punished students during the 2000/2001 academic year (see Matter of Pell v. Board of Educ. 34 NY2d 222 (1974)). The findings of corporal punishment were not undermined by the administrative relief that petitioner was accorded in grievance proceedings."
To understand this ruling, one must inspect the decision which it affirmed. As discussed above, Justice Feinman found grounds other than the excluded letter sufficient to support DOE's decision. Such fact pattern is different from Dourie and here, where, absent the Letter there was no basis in Mangone's file for an unsatisfactory rating. While in Dourie, as here, other documents relating to the incident had been delivered by Dourie's assistant principal to the Office of Special Investigations, together with the excluded letter, none of such other documents were placed in Dourie's file.
The Commissioner found that the use of material outside of Dourie's file for Dourie's evaluation was improper and because the only negative record in her file had been the letter which was ordered removed, and reversed the DOE ruling and ordered Dourie's unsatisfactory rating to be removed. Accordingly, Fahey does not require this Court to rejectDourie as applicable precedent for the purposes of this motion.
It is interesting to note that the Dourie appeal was argued by the same counsel who are counsel for the contending parties here.
The second issue raised in the petition relates to the Position. To establish a right to be compensated for the loss of the Position, Mangone must first establish that the "had" the Position, under a binding contract which was improperly breached, or at least that he had a "right" to the Position, which was withheld improperly. As issues may also turn on when his right to complain of DOE's action accrued, it would be inappropriate to resolve such without an answer from DOE.
As Mangone asserts that it was his improper unsatisfactory rating which was the cause of his loss of the Position and as this Court has determined that DOE's motion to dismiss for failure to state a claim cannot be upheld, and that DOE must proceed to answer the Petition, it would be premature to rule on issues relating to the Position as they may be fully determined by the outcome of the issue of the propriety of Mangone's rating. The third prayer of DOE's motion, seeking the dismissal of the City as a party respondent may, however, be resolved at this time. Mangone's employer is DOE. See New York Education Law § 2590(g). Although Mangone named the City as an additional respondent, Mangone has not contested the City's position that it is not a proper party respondent. Such portion of Respondent's Cross Motion therefore must be granted.
Accordingly, it is the Decision and Order of this Court that Respondent's Cross Motion to Dismiss the Petition is denied in all respects, except for that portion of the Cross Motion which seeks to dismiss the petition against respondent, City of New York, which dismissal is hereby ordered. As requested in respondent's cross motion, the remaining respondent, DOE is hereby granted leave to serve an answer to the petition which answer shall be served within fifteen days of the service of Notice of Entry of this order by either remaining party on the other. This is the Decision and Order of the Court.