The opinion
Pierre v New York City Dept. of Educ.
2024 NY Slip Op 30943(U)
March 20, 2024
Supreme Court, New York County
Docket Number: Index No. 650946/2022
Judge: Arlene P. Bluth
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
FILED: NEW YORK COUNTY CLERK 03/20/2024 04:34 PM INDEX NO. 650946/2022
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 03/20/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARLENE P. BLUTH PART 14
Justice
---------------------------------------------------------------------------------X INDEX NO. 650946/2022
DAVID PIERRE
MOTION DATE 07/18/20221
Petitioner,
MOTION SEQ. NO. 001
-v-
NEW YORK CITY DEPARTMENT OF EDUCATION, DECISION + ORDER ON
MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 28, 29, 30, 31, 32,
33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53
were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
Respondent’s cross-motion to dismiss the petition, which seeks to vacate a determination
by respondent to terminate petitioner, is granted.
Background
Petitioner started working for respondent as a substitute teacher in the 2001-02 school
year. He eventually worked as a full-time tenured teacher and is certified to teach both
Chemistry and Health. Petitioner admits that for three years (2016-2019) he received a
“Developing” rating as a teacher. He emphasizes that he received an “Effective” rating for
measures of student learning (which is based on student outcomes) but a “Developing” rating for
his teacher performance. Teacher performance is evaluated by administrators who draft
evaluations after observing teachers.
1
Although this case was assigned to the undersigned a few days ago, the Court acknowledges that is has been
floating around the courthouse for far too long. On behalf of the court system, the Court apologizes for the absurd
delay in deciding this case.
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Petitioner strenuously objects to the evaluations he received from the administrators that
observed him in the classroom. He insists that these observations were marred by procedural and
substantive defects, including that certain classrooms lacked labs (even though it was a science
class) and that he never received a teacher improvement plan as required. He stresses that during
the subject three years (where he worked at different schools), he was provided assistance from
administrators that were not certified in his field of teaching and was assigned to professional
development groups with teachers who did not teach his subjects.
Respondent issued nine separate charges against petitioner arising out his poor
performance reviews. These included, but are not limited to, the failure to submit weekly lesson
plans, a lack of professionalism, failing to have two labs a week, the failure to adhere to a plan of
assistance, failing to comply with the school’s grading system, the failure to execute lessons in
connection with 12 observations and the failure to implement directives (see NYSCEF Doc. No.
3 at 4-6). An 11-day hearing followed (NYSCEF Doc. Nos. 4-14) and respondent then issued an
over 80-page decision terminating petitioner (NYSCEF Doc. No. 3).
Respondent provides a different account of petitioner’s teaching abilities. It insists that
the Hearing Officer rationally found that petitioner failed to provide his students with an
appropriate educational experience and that his performance did not improve despite attempts to
remediate the issues.
In reply, petitioner blames the chaotic environment at the first school he worked at
(Urban Assembly, which was subsequently closed) and the lack of functioning labs or textbooks
at a subsequent school at which he taught. He questions the contradiction between his student
outcomes and the poor ratings he received from his supervisors. Petitioner contends that the nine
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charges are largely redundant and repetitive and simply pile on a teacher in order to revoke his
tenure.
He argues that each of the witnesses who testified for respondent at the hearing (various
principals and assistant principals) failed to provide persuasive evidence to justify his
termination. For instance, petitioner observes that one supervisor simply parroted the
observation reports without providing any independent recollection of petitioner’s performance.
Petitioner stresses that the first school he worked at (Urban Assembly) had well known
disciplinary issues and that he should not be punished for this general dysfunction. He blames the
school administrators for the students’ overall lack of discipline. At another school (Kingsbridge
Academy), he argues that the supervisor who evaluated him was not licensed in Chemistry and
was therefore incapable of providing him the resources necessary to aid his improvement.
Petitioner insists that even if the charges could be sustained, the penalty of termination is
excessive and should be vacated.
Discussion
“Education Law § 3020-a(5) provides that judicial review of a hearing officer’s findings
must be conducted pursuant to CPLR 7511. Under such review an award may only be vacated
on a showing of misconduct bias, excess of power or procedural defects” (Lackow v Dept. of
Educ. [or Board] of City of New York, 51 AD3d 563, 567, 859 NYS2d 52 [1st Dept 2008])
[internal quotations and citation omitted]. “[W]here the parties have submitted to compulsory
arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties
have submitted to voluntary arbitration” (id. at 567). The hearing officer’s “determination must
be in accord with due process and supported by adequate evidence, and must also be rational and
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satisfy the arbitrary and capricious standards of CPLR article 78. The party challenging an
arbitration determination has the burden of showing its invalidity” (id. at 567-68).
The Court’s primary task in this proceeding is to evaluate the Hearing Officer’s rationale
in terminating petitioner. The Hearing Officer thoroughly evaluated each of the observed lessons
and sustained the charges against petitioner. For instance, for the February 13, 2017 observed
lesson, she noted that she found witness testimony from one of petitioner’s supervisors (Mr.
Pichardo) credible, stating that “I credit Pichardo's testimony [that] students were yelling,
cursing, lifting furniture, throwing clothing around the room, and engaging in horseplay during
the lesson. In addition, I credit Pichardo's testimony [petitioner] failed to differentiate
instruction, utilize effective questioning techniques, assess or engage students in the lesson”
(NYSCEF Doc. No. 3 at 48). She discounted petitioner’s claim that he properly grouped students
and noted that Mr. Pichardo’s observation revealed that “nearly all students were on their cell
phones at one point during the lesson” (id.). The Hearing Officer noted that petitioner admitted
that “he never went to the administration or the Dean to refer students for discipline, and he
failed to contact parents to seek involvement in addressing the disciplinary concerns (id. at 48-
49).
During another observation in February 2018, the Hearing Officer concluded that “the
weight of the credible evidence was [Petitioner] delivered a lesson lacking in rigor that was
unconnected to the curriculum and with learning tasks not designed to engage students in active
thinking” (id. at 54). She noted that only four of the eighteen students in class actually
participated in the discussion (id. at 54-55). The Hearing Officer’s discussion of an observation
in April 2019, noted that “there was general chaos in the room” (id. at 60).
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The Hearing Officer also explored petitioner’s failure to provide his students with
appropriate feedback as he was only grading the completion of tasks and assignments rather than
the mastery of the subjects (id. at 62-63). She also sustained a charge based on petitioner’s
failure to submit weekly lesson plans (id. at 65).
After sustaining each of the charges, the Hearing Officer addressed the appropriate
penalty (id. at 78). She maintained that “I further find [petitioner] failed to consistently
implement directives, recommendations, counsel, instruction and professional development from
observational conferences, action plans, inter-visitations and professional development sessions
on a number of instances during the charged school years. Accordingly, I find the [petitioner]
engaged in incompetent and inefficient service and there is just cause to discipline the
[petitioner]” (id. at 79).
“As the record in this case demonstrates, [petitioner] was repeatedly cited for deficiencies
in planning and executing his lessons in a coherent manner, failing to use questioning and
discussion techniques which challenged students and required critical thought, and failing to
properly implement classroom management techniques on a consistent basis, among many other
things such as failing to differentiate instruction. Despite extensive efforts to remediate
[petitioner]’s pedagogy, [petitioner] was never able to correct any of the deficiencies in his
pedagogy” (id. at 78-79).
The Hearing Officer found that petitioner routinely declined additional support, failed to
follow his assigned curriculum and failed to take the appropriate steps to manage his classroom
(such as posting classroom rules) (id. at 82). She also noted that petitioner was directed to
provide about 10 lesson plans in advance of meetings with a supervisor regarding his
improvement but that he typically only brought a single lesson plan or none at all (id.). She
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concluded that “Accordingly, I find [petitioner] is not capable of providing a valid educational
experience for students assigned to his classroom. For the reasons set forth in this Opinion and
Award, I find [petitioner] is either unwilling or incapable of providing a valid educational
experience for his students and termination is the only appropriate remedy” (id. at 84).
The Court sees no basis to annul the Hearing Officer’s well-reasoned decision. The
Hearing Officer evaluated each and every charge lodged against petitioner and cited to relevant
witness testimony in support of her conclusions. “A hearing officer's determinations of
credibility, however, are largely unreviewable because the hearing officer observed the witnesses
and was able to perceive the inflections, the pauses, the glances and gestures—all the nuances of
speech and manner that combine to form an impression of either candor or deception” (Lackow,
51 AD3d at 568). It is not this Court’s role to second guess the credibility determinations of the
Hearing Officer especially where, as here, there is no suggestion that the witness testimony was
“incredible as a matter of law” (id.). To be sure, petitioner clearly disagrees with the observation
reports issued by his supervisors and the testimony offered by these individuals at the hearing.
But that disagreement is not a basis to vacate the Hearing Officer’s decision.
With respect to the penalty of termination, “The standard for reviewing a penalty
imposed after a hearing pursuant to Education Law § 3020–a is whether the punishment of
dismissal was so disproportionate to the offenses as to be shocking to the court's sense of
fairness” (id. at 569). The Court is unable to find that termination shocks any sense of fairness.
The Hearing Officer detailed that petitioner received poor ratings for three consecutive years and
that he never embraced the assistance offered by his supervisors.
As noted above, petitioner routinely failed to come to support meetings with lesson plans
as requested (NYSCEF Doc. No. 3 at 82). The Hearing Officer noted another example where
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petitioner was asked to prepare a spreadsheet outlining his student’s progress in completing
required labs (id.). “It took over five (5) weeks for [petitioner] to prepare such a spreadsheet and
by then, students were so far behind, [a supervisor] was required to take over [Petitioner]'s class
for a week to facilitate lab completion” (id. at 82-83). Simply put, there was ample basis to
support both the charges and the penalty of termination.
Accordingly, it is hereby
ORDERED that the cross-motion by respondent to dismiss is granted; and it is further
ADJUDGED that the petition is dismissed and the Clerk is directed to enter judgment
accordingly along with costs and disbursements upon presentation of proper papers therefor.
3/20/2024 $SIG$
DATE ARLENE P. BLUTH, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
GRANTED DENIED GRANTED IN PART X OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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