Cite as: Matter of Schein v. New York City Dept. of Education, 101682/12, NYLJ 1202639616929, at *1 (Sup., NY, Decided January 15, 2014)


Justice Peter H. Moulton

Decided: January 15, 2014




Petitioner commenced this proceeding to vacate the decisions by the New York City Department of Education ("DOE") awarding her an unsatisfactory rating ("U Rating") for the 2010-2011 school year and terminating her from probationary employment as a English Language Arts teacher. Petitioner sought reinstatement with back pay, and to amend the U Rating in favor of a satisfactory rating. By Decision, Order and Judgment dated September 24, 2012 (the "prior Decision"), the court granted respondents' cross-motion to dismiss that portion of the petition seeking reinstatement as time-barred and severed the issue of the U Rating. The court also dismissed the City of New York as an improper party.




This decision addresses the remaining issue of the U Rating, which was held in abeyance pending further submissions. In the prior Decision, the court stated "The court cannot review the issue of the U Rating without a complete record and further briefs. Even though the committee decision is advisory and the Chancellor does not have to follow the recommendations of the hearing committee (see Matter of Kaufman v. Anker, 42 NY2d 835, supra), the court must first know what evidence was submitted to the committee, and considered by the Chancellor, before it renders any decision"2 (emphasis added).

In her further submissions, dated January 8, 2013, petitioner attaches several exhibits which she states she submitted to the Chancellor's hearing committee. While petitioner followed the court's directive, respondents' submission of affirmation of James Hallman (respondents' counsel) is unresponsive. Hallman reiterates respondents' legal arguments regarding agency deference and attaches respondents' prior memorandum of law.3 He also attaches the four formal observation reports by the school's Principal Grismaldy Laboy-Wilson (the "Principal"). Hallman does not submit the decision of the committee or the Chancellor. Relying solely on the four observations, respondents do not discuss any evidence which was




introduced at the hearing, nor the post-hearing decisions.


Petitioner was appointed by DOE in September of 2009, subject to a three-year probation period scheduled to expire in September of 2012. During the 2010-2011 school year, petitioner had four classroom observations, all made by the Principal. The first two observations were rated as unsatisfactory and latter two were rated marginally satisfactory.4 On June 22, 2011, at her annual performance review ("Annual Review") petitioner received an overall U Rating for the year, comprised of individual U Ratings in 17 of 23 categories.

On July 1, 2011, petitioner received a letter from the Superintendent, dated June 30, 2011. That letter notified her of the U Rating and that the Superintendent "will review and consider whether your services as a probationer be discontinued as of the close of business August 1, 2011." It also provided petitioner with the opportunity to respond, which she did. Petitioner was subsequently notified that her probationary service was terminated, effective August 1, 2011.


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 2011]; Black v. New York City Dept. of Educ., 62 AD3d 468 [1st Dept 2009]; see generally Matter of Arrocha v. Board




of Education of City of N.Y., 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 [emphasis in original; internal citations omitted]). "Arbitrary action is 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 NY2d 222, 231 [1974]).

Petitioner complains that the Principal arbitrarily checked off seventeen boxes with individual U Ratings which do not correlate to the documentary proof. Further, she contends that the individual U Ratings were contradicted, or undermined, by statements elsewhere in the observation reports (see pages 9-15 of the Verified Petition) or by other evidence favorable to petitioner. Petitioner questions why two observations were conducted within the first two months of the school year (September 30, 2010 and November 5, 2010) and why all observations were performed by the Principal, when DOE procedures "recommended" that the observations include at least two periods by the Assistant Principal, in addition to the Principal's observation.5




The U Rating is annulled. It is troubling that despite the court's request for further submissions, respondents made no effort to support the Chancellor's decision. If the Chancellor "rubber stamped" the Principal's decision, that would be arbitrary and capricious. The evidence introduced at the hearing raised significant doubt as to the validity of the U Rating. Absent any evidence that the committee or the Chancellor considered the evidence, the court can only conclude that respondents did not engage in the appropriate review.

The evidence includes a letter from the Principal herself, dated June 18, 2010 congratulating petitioner, and stating that:

I am a true believer that passing rates reflect the effectiveness of a teacher. Your passing rate were impressively high this semester as follows:

- English 4-72 percent, 80 percent

- English Honors-97 percent, 100 percent

- Journalism-97 percent

While this letter is from the prior year, it is from the very person who gave petitioner the U Ratings. Shortly thereafter, petitioner received U Rating for her September 30, 2011 lesson. Further, while the Principal's observations included criticism that students talked socially in class and that two lessons needed focus, all the observations listed many "areas in your instruction are worthy of commendation."

In addition, the evidence included a letter from Robin Sampson, one to the two individuals assigned by the Principal to assist Ms. Schein. By letter dated June 27, 2011, Sampson (a staff developer) praised many things about Ms. Schein (specified in her letter) and indicated no negatives. Her opinion was entitled to weight given that she stated that she "worked along side Karen for two years, I listened to her passion for teaching, especially during our coaching sessions, which could have occurred more frequently if not for periodic scheduling





Also troubling is the fact that the Annual Review (reflecting that petitioner received a U in 17 of 23 categories) listed the documentation relied upon solely as the Principal's first two observation reports conducted early in the year. The form states that "All recommendations for discontinuance or denial of certification must be accompanied by copies of substantiating documentation attached hereto, including but not limited to, observation reports." Yet, the latter two observations with the rating of "marginally satisfactory" were not referenced. It is arbitrary and capricious for respondents to base a determination only on a portion of the documentation which is required to be considered, and, to ignore other documents that reflects petitioner's progress (see Matter of Brown v. City of New York, 111 AD3d 426 [1st Dept 2013]) [U Rating reversed where petitioner implemented the recommendations in the observation report and where other recommendations could not be implemented because there was little time to implement them, due to the timing of the observations and reports]).

Based on the totality of these circumstances, respondents acted arbitrarily and capriciously in assigning petitioner a U Rating for the 2010-2011 school year (see e.g., Matter of Kolmel v. City of New York, 88 AD3d 527 [1st Dept 2011] [U Rating annulled where, among other things, the principal awarded unsatisfactory rankings in every category on an annual report, even where unsupported or contradicted by other evidence in the report]).

It is hereby

ADJUDGED that the petition is granted to the extent that the U Rating for the 2010-2011 school year is annulled.




This Constitutes the Decision and Judgment of the Court.

DATED: January 15, 2014


1. The Part was formerly known as Part 40 B.

2. In the prior Decision, the court noted respondents' footnote in their memorandum of law indicating that the Chancellor designated a committee to hear and review the termination and the U Rating. According to respondents, a hearing was held, at which petitioner and her representative were permitted to present evidence. The decisions were affirmed. It appears that the review procedures are governed by Regulation of the Chancellor Number C-31.

3. Respondents' prior memorandum of law asserts that the petition "disagrees with the assessments of the Principal and the Chancellor's Committee and the Chancellor of petitioner's performance, it does not dispute that the Principal conducted observations throughout the 2010-11 school year and found petitioner's performance lacking." The memorandum, however, does not discuss the findings of the Committee or Chancellor.

4. There is no official rating marginally satisfactory. Apparently the Principal felt that petitioner did not deserve a U Rating as she improved, yet did not quite merit an S Rating. This highlights that the rating system is flawed. The DOE and the union are presently negotiating changes to this system.

5. Petitioner also complains that in violation of DOE procedures, DOE failed to provide her with support to correct her shortcomings or to provide her with a written notice warning her that her failures could lead to a U Rating. Petitioner points out that the although the Principal created a "Log of Assistance" delineating the assistance offered to petitioner, the Principal scheduled meetings during times when petitioner had to teach. She questions the quality of her support, but was in fact provided with several avenues of support. Her allegation that the Principal wilfully omitted of a page of petitioner's Annual Review and had misleading conversations with her on June 17, 2011, were previously rejected by the court for the reasons stated in the prior Decision.