Opinion
101208/2015
01-29-2019
In the Matter of the Application of Mabel LAFONTAINE, Petitioner, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK; and Carmen Farina, in Her Official Capacity as Chancellor of the City School District of the City of New York, Respondents.
Petitioner: Robert T. Reilly, Esq., 52 Broadway-9th Floor, New York, NY 10004 Respondents: Elizabeth Robins, Assistant Corporation Counsel, Offices of Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 2-109g, New York, NY 10007
Petitioner: Robert T. Reilly, Esq., 52 Broadway-9th Floor, New York, NY 10004
Respondents: Elizabeth Robins, Assistant Corporation Counsel, Offices of Zachary W. Carter, Corporation Counsel of the City of New York, 100 Church Street, Room 2-109g, New York, NY 10007
Carmen Victoria St. George, J.
In this Article 78 proceeding, petitioner Mabel Lafontaine seeks a judgment annulling the unsatisfactory rating ("U-rating") issued to her by respondents Board of Education of the City of School District of the City of New York ("BOE") for her per session work performed during the 2013-2014 school year. Petitioner requests that her 2013-2014 U-rating be reversed and changed to a satisfactory rating. Respondents answer and oppose the petition.
Respondents had previously cross-moved to dismiss the petition; however, this court denied the motion, and directed respondents to answer.
Background
Petitioner is a tenured bilingual social worker and has been employed by the BOE for over twenty years. During the 2013-2014 school year, petitioner was hired to perform "per session" work at P.S. 273 in Brooklyn, New York, which she conducted between January 18, 2014 and June 22, 2014. Specifically, petitioner was hired to assist in completing social history evaluations. According to the record, a per session position of this kind is created when there is a high volume of students who need social history evaluations, or a school does not have a social worker on staff who speaks the language required in order to conduct a bilingual interview for the social history evaluation. Social history evaluations are part of the process in determining whether a student is eligible for an Individualized Education Program (IEP) . Completing social history involves two main tasks: (1) conducting social history interviews with parents and (2) writing social history reports based on those interviews. Per session work is paid at an hourly rate and is conducted outside of the regular school day. Violet Lipford was petitioner's supervisor and rating officer for this per session work. Ms. Lipford issued a U-rating for petitioner's per session work performed between January 18, 2014 and June 22, 2014.
An IEP is the BOE's plan to provide a child with special education services in the least restrictive environment, in accordance with the Individuals with Disabilities Education Act ("IDEA").
The facts are disputed. Petitioner alleges that at no point during the subject period — January 18, 2014 to June 22, 2014 — did Ms. Lipford provide her with formal or informal notice that her performance was unsatisfactory. While petitioner acknowledges that she attended a disciplinary meeting held by Ms. Lipford on June 25, 2014, she maintains that Ms. Lipford did not inform her that she would be receiving a U-rating. In addition, she points out, the disciplinary meeting was held two days after her per session term ended. According to petitioner, she was not made aware of her U-rating until December 2014. Petitioner states that she only discovered that she had been rated unsatisfactory when the BOE denied her December 2014 application for further per session work. Specifically, petitioner alleges that it was not until December 19, 2014, that she received her Individual Rating Report of Per Session Service ("rating sheet") via email from Ms. Lipford, which indicated that she had been rated unsatisfactory for the per session work she performed between January 18, 2014 and June 22, 2014 (petitioner's exhibit C). The Court notes that said rating sheet is neither dated nor signed by petitioner (petitioner's exhibit B).
Consequently, petitioner timely appealed her U-rating with the BOE's Office of Appeals and Reviews. A hearing was held on February 2, 2015, before Doctor Lester McDowell, Chairperson of the Chancellor's Committee ("Chairperson"). Ms. Lipford appeared on behalf of the BOE. Petitioner was represented by her UFT advocate, Rochelle Block. Petitioner testified on her own behalf and was given an opportunity to cross-examine Ms. Lipford. Significantly, petitioner alleges that she was not furnished with documents that Ms. Lipford utilized to support the U-rating prior to the hearing. However, on the day of the actual hearing, Ms. Lipford submitted into evidence a letter to file, dated July 1, 2014. A copy of the two-page letter is attached to respondents' answer as Exhibit 12. Petitioner is adamant that she never received this letter prior to her appeal of the U-rating. The letter does not contain acknowledgment of receipt by petitioner.
At the beginning of the hearing, the Chairperson inquired about procedural objections. Ms. Block objected to the July 1, 2014 letter on the grounds that petitioner never received it and never signed it. Ms. Block further argued an unsigned letter should never have been included in petitioner's file. The Chairperson asked Ms. Lipford why the letter was not signed, and she stated in relevant part:
"[t]he last meeting was held, because of UFT delays was June 25th, the Wednesday before the end of the year. And the first time available to provide this letter to the -- Ms. Lafontaine, was July 1st. At that time, not only was per session completed, but the end of the year was completed. And the only means of forwarding this information was via—US mail to Ms. Lafontaine with the address that was on file of the per session application. And it was sent to that address" (respondents' exhibit 13 at 3).
Ms. Lipford testified that "it was not return receipt" (Id. at 4). Ms Lipford stated that later that year she sent an unused per session sick time form to the same address and she received an email from petitioner acknowledging that it had been received. Ms. Lipford further testified that she initially attempted to schedule a disciplinary meeting with petitioner and her UFT representative on June 8, 2014, but the UFT representative asked that they reschedule. According to Ms. Lipford, that meeting was rescheduled more than once and they "ended up with a June 25th meeting to accommodate the UFT representative and Ms. Lafontaine" (Id. at 5). The Chairperson denied Ms. Block's objection and found that "a substantial effort was made for her to get it" (Id. ).
Following the ruling, there was back and forth between the Chairperson and Ms. Block on the accuracy of Ms. Lipford's account of events regarding the scheduling of petitioner's disciplinary meeting. Though the transcript often indicates that the parties were interrupting each other, it appears Ms. Block asked petitioner to explain the scheduling issue. Petitioner's answers are unclear, though it appears that Ms. Lipford initially sent petitioner a letter dated June 8, 2014 notifying her that a disciplinary meeting had been scheduled for May 18, 2014. Petitioner testified that she contacted her union representative to let her know that Ms. Lipford made an error as that date had already past and that the meeting needed to be rescheduled. Petitioner further testified that she informed her union representative that "[i]f Ms. Lipford meant June 18th, I would not be available. So please reschedule" (respondents' exhibit 13 at 7). Petitioner testified that Ms. Lipford ended up rescheduling the meeting for June 18th, the date that petitioner was not available. The Chairperson affirmed his ruling stating "effort was made by both parties to try to get this meeting done in a timely manner which she had received it [sic]. Under the circumstances, I'm not going to take it out. So, your objection is denied" (Id. at 8). Ms. Block reiterated that the letter was not signed, it was never received, and thus should not be allowed in.
The letter memorialized a disciplinary meeting held on June 25, 2014. In her letter, Ms. Lipford stated that petitioner repeatedly failed to complete her assigned social history evaluations in a timely manner. The letter stated that petitioner did not meet the expectations outlined in the "Memorandum Per Session Site Policies December 2013." Specifically, petitioner was expected to "submit electronic reports within one week and notify the supervisor via email upon completion" (respondents' exhibit 12). Ms. Lipford's letter also referenced a May 17, 2014 meeting she had with petitioner. According to the letter, Ms. Lipford initiated that meeting because she had received inquiries about missing social history evaluations from supervisors and school-based staff. The letter also noted that during the May 17, 2014 meeting, petitioner identified eight outstanding social history evaluations. The letter indicated that Ms. Lipford provided petitioner with a block of uninterrupted writing time so that she could complete her outstanding social history evaluations. The letter further stated that petitioner was warned would she not be provided additional per session time to re-write reports. However, the letter continued that as of June 4, 2014, petitioner still had three outstanding social history reports to complete and was provided with an additional ten hours to complete said reports. The letter concluded as follows:
The Court notes that there is no indication that the meeting held on May 17, 2014 was a disciplinary meeting.
"The significant delay in submitting your personal history evaluations impacted timely meetings and ultimately supports and services for students with disabilities. Be advised that this letter will be placed in your personnel file and an unsatisfactory rating will be entered for this per session activity ending June 2014. This unsatisfactory rating may lead to further disciplinary action including termination" (respondents' exhibit 12).
Notably, the letter was not signed and dated by petitioner to acknowledge receipt.
In addition to the July 1, 2014 letter, the BOE also presented several emails between Ms. Lipford and petitioner. The emails purport to document petitioner's alleged performance issues. By letter dated March 3, 2015, the Deputy Chancellor for Teaching and Learning, Phillip Weinberg, denied petitioner's appeal and sustained the U-rating as a "consequence of poor performance" (petitioner's exhibit D).
Petitioner then commenced this Article 78 proceeding. Petitioner argues that respondents' issuance of the U-rating for the 2013-2014 year, and the denial of the appeal was arbitrary and capricious, in violation of lawful procedure, and in bad faith. Specifically, she argues that respondents acted in bad faith by issuing and sustaining the U-rating without proper notice. Petitioner contends that she did not receive formal or informal notice that she was in danger of receiving a U-rating. Petitioner asserts that she did not receive her rating sheet until December 19, 2014, approximately 6 months after completing her per session work. She further notes that the letter dated July 1, 2014, was not issued until summer recess, which is eight days after petitioner completed her per session work. Petitioner asserts that respondents' failure to notify her of her unsatisfactory service provided her with no opportunity to improve or correct her alleged deficiencies. Relying on Matter of Gumbs v. Board of Education of the City School District of the City of New York (125 AD3d 484 [1st Dept 2015] ), petitioner contends that the failure to provide her with proper notice is a sufficient basis to vacate her U-rating.
In addition, petitioner claims that the BOE violated its own internal procedures and rules, including the New York City Public Schools, Rating Pedagogical Staff Members handbook ("Rating Handbook"), the BOE's "Teaching for the 21st Century: Guidelines for Annual Performance Reviews including School-Based Professional Development for the New York City Public School Teachers," and Article 8J, of the Collective Bargaining Agreement ("CBA") between the UFT and the BOE (petitioner's exhibits E, F, and G). Specifically, petitioner asserts that the U-rating was not based on admissible evidence. She argues that the Rating Handbook dictates that unsigned letters are inadmissible in a U-rating appeal hearing. Petitioner claims that without the letter, her U-rating is not supported by any documentation from her personnel file. She thus argues that respondents sustained petitioner's U-rating in violation of their own rules and regulations.
In answering the petition, respondents argue that petitioner failed to demonstrate how the U-rating was arbitrary, capricious, made in bad faith or in violation of lawful procedure. Respondents further contend that petitioner's U-rating was rationally based on evidence that was presented at the hearing. Respondents argue that, contrary to petitioner's contentions, the record shows that she was on notice of her unsatisfactory performance by way of emails sent by Ms. Lipford from February to June 2014. They annex to their answer copies of emails between petitioner and Ms. Lipford which were entered as exhibits during the hearing (respondents' exhibits 7, 8, 9, and 10). Respondents note that the emails show that petitioner was on notice starting in February that she was not completing social history reports in a timely fashion (respondents' exhibit 7). They maintain that "petitioner was clearly aware by April that the substantial delay in her completion of reports was potentially impacting student services, and even caused other school social workers to complain to Ms. Lipford" (respondents' memo of law at 10). Respondents point to the "April 2014 emails" in support of this contention (respondents' exhibit 8). In addition, respondents point to a series of emails sent in May and June to purportedly show that petitioner was failing to complete social history evaluations in timely manner even when Ms. Lipford afforded petitioner additional time to do so (respondents' exhibits 9 and 10). In light of these emails, respondents contend that this case is distinguishable from Matter of Gumbs v. Board of Education wherein the Court noted that Ms. Gumbs "received scant notice of respondents' concerns about her performance and had little opportunity to improve" (Matter of Gumbs , 124 AD3d at 485). Therefore, they argue, petitioner's U-rating was warranted as the emails demonstrate that petitioner was notified, given ample opportunity to improve, and failed to do so.
Respondents reject petitioner's assertion that they acted in violation of BOE rules and regulations. Respondents argue that petitioner's reliance on the Ratings Handbook, "Teach for the 21st Century," and Article 8J of the CBA, is misplaced because the procedures and guidelines outlined therein apply to teachers, not social workers. While respondents acknowledge that there is a separate CBA between the BOE and the Social Workers, they contend, that CBA is also inapplicable to the facts of this case. Instead, respondents maintain that the Per Session Policies and Procedures Memorandum ("Per Session Memorandum") is the applicable standard because petitioner's U-rating was not for her regular full-time social work assignment, but rather her per session work. They argue, Ms. Lipford based her rating on whether petitioner performed satisfactorily in her clinical duties in accordance with the Per Session Memorandum. Respondents attach at Exhibit 6 the "Per Session Policies and Procedures Memorandum." They maintain that petitioner received a copy of this document on her first day of her per session assignment — January 18, 2014. Respondents cite to the Per Session Memorandum as a basis for petitioner's U-rating. Regardless, respondents assert that alleged deficiencies in the review process do not serve as grounds for reversal of a U-rating (citing Matter of Brown v. Board of Educ. of the City School Dist. of the City of NY , 89 AD3d 486 [1st Dept 2011] ).
Respondents further provide two affidavits, including one from Ms. Lipford. In her affidavit to the court, Ms. Lipford reiterates some of her hearing testimony and expands upon certain points raised. In particular, Ms. Lipford provides context to the emails presented during the hearing and elaborates on why she believed petitioner deserved a U-rating. Ms. Lipford also explains petitioner's job responsibilities and cites to the "Per Session Policies and Procedures Memorandum" (respondents' exhibit 6). The other affidavit, from Michael Wicks, BOE Director of Advanced Application Support, is provided to the court along with a Special Education Student Information System (referred to as "SESIS") Audit Log. Wicks explains that his job responsibilities include overseeing the day-to-day operations of SESIS. He further attests that the social history reports that petitioner stated were deleted were not in fact deleted.
According to Ms. Lipford's affidavit, social history reports were to be submitted to her electronically through SESIS.
In reply, petitioner argues that respondents improperly rely on certain allegations of fact and documentation that were not introduced at the appeal hearing. Among other documents, petitioner asserts that the court should not consider the Wick and Lipford affidavits as they are outside the scope of the administrative record (respondents' exhibits 2 and 17). Likewise, petitioner argues that the Per Session Memorandum was not submitted at the appeal hearing and thus should not be considered (respondents' exhibit 6). Notwithstanding this, petitioner points out that the Per Session Memorandum is dated December 18, 2014, which postdates petitioner's 2013-2014 per session service. Petitioner notes that her per session service began on January 18, 2014 and concluded on June 22, 2014. Further, petitioner points out that page 4 of the Per Session Memorandum contains an acknowledgement of receipt by petitioner dated January 18, 2014 and thus pre-dates the creation of the document. Petitioner maintains that this irregularity in and of itself should render respondents' exhibit 6 improper. Further, petitioner reiterates that the court should look to the First Department's analysis in Matter of Gumbs because the Gumbs court overturned a U-rating based on similar facts and circumstances presented here.
Discussion
A challenge to a U-rating requires a showing that the determination was arbitrary and capricious or without a rational basis (see CPLR § 7803 [3] ); Matter of Hazeltine v. City of New York , 89 AD3d 613 [1st Dept 2009] ; see generally Matter of Arrocha v. Board of Educ. of the City of NY , 93 NY2D 361, 363-364 [1999] ). "[A] court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion" ( Matter of Arrocha , 93 NY2d at 363 ). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v. Board of Educ. , 34 NY2d 222, 231 [1974] ).
A hearing officer's determination as to the credibility of witnesses is entitled to deference and "largely unreviewable because the hearing officer observed the witnesses" ( Lackow v. Department of Educ. of City of NY , 51 AD3d 563, 568 [1st Dept 2008] ). "Courts are generally reluctant to set aside administrative determinations due to technical deficiencies where the DOE fails to strictly comply with the procedures set forth in the Ratings Handbook as promulgated by the Chancellor" ( Perkins v. New York City Dept. of Educ. , 43 Misc 3d 903, 905 [Sup Ct, NY County 2014, Hagler, J.] citing, Matter of Brown , 89 AD3d at 487 ). However, where there is a showing of deficiencies in the performance review process that "were not merely technical but undermined the integrity and fairness of the process," that would amount to a deprivation of a substantial right which is not waivable (see Matter of Kolmel v. City of New York , 88 AD3d 527, 528 [1st Dept 2011] ). Unsatisfactory ratings have been annulled in cases where there is a showing that the BOE employee was not properly notified that his or her year-end rating was at risk (see, e.g., Matter of Gumbs , 125 AD3d at 485 ; Matter of Taylor v. City of New York , 139 AD3d 430, 433 [1st Dept 2016] [annulling teacher's U-rating where record demonstrated late receipt of feedback without sufficient time for teacher to remediate during a particular school year]; Matter of Murray v. Board of Educ. of City Sch. Dist. of the City of NY , 131 AD3d 861, 865 [1st Dept 2015] [U-rating annulled when, among other things, there was "no evidence that petitioner was notified before the end of the year in June 2011 that her work was considered unsatisfactory"] ).
In this case procedural errors are alleged by petitioner. One of the issues presented here is whether the procedures respondents allegedly violated apply to petitioner in her capacity as a per session social worker. Insofar as petitioner argues that respondents violated the Ratings Handbook, the CBA, and Teach for the 21st Century, this Court is not convinced. This Court agrees with respondents to the extent that it appears that the guidelines and procedures set forth in the above-mentioned documents apply to teachers. For this reason, the Court cannot find that Chairperson violated the Ratings Handbook in his admission of the unsigned July 1, 2014 letter. Although the Chairperson does not specifically state this, his testimony suggests that he believed petitioner received the July 1, 2014 letter based on Ms. Lipford's testimony that she later sent an additional form to petitioner at the same address and received acknowledgement that it was received. Accepting that as true, petitioner raises a separate claim that she was not given advanced notice of her deficient performance until July 2014 and by then it was too late for her to improve the alleged defects in her performance.
Petitioner urges this court to follow the First Department's reasoning in Matter of Gumbs. In Gumbs , the Appellate Division, First Department annulled a U-rating and discontinuance for a probationary guidance counselor based in part, on the fact that the petitioner was not provided with the disciplinary letters that purported to support the U-rating until June 20, 2012, the end of the school year (Matter of Gumbs , 125 AD3d at 485 ). In doing so, the First Department held, that "petitioner received scant notice of respondents' concerns about her performance and had little opportunity to improve her performance" ( Id. at 485 ). Significantly, the Court noted that even if the petitioner was aware of the underlying facts and circumstances, there was no evidence to suggest that she believed that she was in danger of receiving a U-rating. The Court stated:
"Even assuming petitioner was aware, via certain email and other correspondence, of the facts and circumstances underlying the respective disciplinary letters, there is no evidence to suggest that these communications, made in the ordinary course of petitioner's employment as a probationary guidance counselor, would have alerted her that her year-end rating or her employment was at risk" (Id. ).
Upon review of the record, this Court agrees with petitioner's contention that the First Department's analysis in Gumbs is applicable to the instant case. Just as in Gumbs , in the matter at hand, respondents failed to provide petitioner with proper notice that she was at risk of receiving an adverse rating. Contrary to respondents' contention, this Court finds that Ms. Lipford's emails did not constitute adequate notice that petitioner was in danger of receiving a U-rating. For one thing, the Court notes that none of the emails state "you are in danger of being rated Unsatisfactory" or provided any warning that petitioner was at risk of receiving a U-rating. For another, the Court regards the substance of the emails to be the type of routine communications between a supervisor and her subordinate. For example, the February emails merely state "[p]lease finalize your social history evaluation" (respondents' exhibit 7). Likewise, the May 2014 emails discuss, inter alia , petitioner's outstanding social history reports, the additional time allocated to petitioner to complete the reports, and requests for updates on said outstanding reports. These emails, like those in Gumbs , are the type made "in the ordinary course of petitioner's employment" and would not have alerted petitioner that she was in danger of receiving a year-end U-rating (Matter of Gumbs , 125 AD3d at 485 ). Therefore, respondents failed to provide petitioner with an opportunity to improve her performance.
Respondents reliance on the Chairperson's determination that both parties made a substantial attempt to get the disciplinary meeting done in a timely manner does not alter this Court's finding that petitioner lacked adequate notice. The Court notes that Ms. Lipford initially attempted to schedule the disciplinary meeting for June 8, 2014. Even if the meeting did in fact take place on that date and petitioner was in fact notified that she was at risk of receiving an adverse rating, that still would have left her with less than two weeks to improve her performance.
Furthermore, respondents' reliance on the Per Session Memorandum is equally unavailing. First, the Court cannot consider it because it was not previously presented during the underlying hearing. It is well settled that, "judicial review of administrative records is confined to the facts and record adduced before the agency" ( Matter of Aronsky v. Board of Educ. Community School Dist. No. 22 of City of NY , 75 NY2d 997, 1000 [1990] ; Matter of Weill v. New York City Dept. of Educ. , 61 AD3d 407, 408 [1st Dept 2009] ). Second, even if the Court could consider the Per Session Memorandum, it would not be instructive as it provides no guidelines as to the ratings review process itself, but merely outlines the job responsibilities of a per session social worker.
Based on the totality of the circumstances, it is apparent that the deficiencies in the performance review process resulting in petitioner's unsatisfactory rating for her per session work for the 2013-2014 school year "were not merely technical but undermined the integrity and fairness of the process" (see Matter of Gumbs , 125 AD3d at 485 ). Therefore, the Court grants the petition to the extent of annulling the U-rating and remanding the matter to respondents for further review consistent with this decision and order.
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 2013-2014 school year is hereby vacated and annulled; and it is further
ORDERED and ADJUDGED that this proceeding is remanded to respondents for further review consistent with this decision and order; and it is further
ORDERED that the remainder of this petition is otherwise denied.