IN RE: the Application of Danielle Kushner

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Supreme Court, New York County, New York.

IN RE: the Application of Danielle Kushner, Petitioner, For a Judgment Pursuant to Article 78 of the C.P.L.R. v. Carmen Farina, Chancellor, New York City Department of Education, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.

102118/2015

Decided: June 30, 2017

APPEARANCES: For Petitioner Peter E. Brill Esq. Brill Legal Group 15 Maiden Lane, New York, NY 10038 For Respondents Kurt Rose, Assistant Corporation Counsel 100 Church Street, New York, NY 10007

Petitioner, formerly a special education teacher at respondent New York City Department of Education's Richmond Hill High School, seeks reinstatement to her former position with tenure and an annulment of respondents' rating of her performance as ‘ineffective‘ for the 2014-15 school year.

I. UNDISPUTED BACKGROUND FACTS

Petitioner began teaching special education as a permanent substitute in the Patchogue-Medford School District in the 2011-12 school year. In September 2012, respondent New York City Department of Education (DOE) hired petitioner to teach special education at the Richmond Hill High School, with a probationary period of three years. Petitioner received a ‘satisfactory‘ rating for the 2012-13 year, V. Pet. Ex. 1, at 1; V. Answer Ex. A, at 2, and an ‘effective‘ rating for the 2013-14 year. V. Pet. Ex. 1, at 2; V. Answer Ex. A, at 2. During these years, petitioner raised concerns with her union and at staff meetings about students' nonreceipt of mandated special education services.

At the beginning of the 2014-15 school year, petitioner submitted an ‘Application for Reduction of Probationary Service,‘ based on her prior service as a permanent substitute teacher. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Section 1 of the application, titled ‘Jarema Credit,‘ allowed petitioner to request credit for any prior substitute teaching service that was under supervision, consisted of more than 80 days of service in any 90 consecutive school days in the same school, and totaled at least 160 days of actual service during a school year. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Under Section 1, petitioner requested that DOE reduce her probationary period one year based on her 180 days of service as a permanent substitute teacher in the Patchogue-Medford School District during the 2011-12 school year.

DOE issued a written denial dated November 6, 2014, of petitioner's request, because her service was not in the New York City public schools. V. Answer Ex. BB, at 1. Petitioner denies receiving this written denial and alleges that she did not learn of the denial until after respondents discontinued her employment in August 2015. V. Pet. ¶ 35, Ex. 8.

During the 2014-15 school year, petitioner received ‘ineffective‘ ratings on all four required observations of her performance, V. Answer Exs. E, J, N, and P, as well as an ‘ineffective‘ rating for the 2014-15 school year. V. Pet. Ex. 7. In June 2015, DOE denied petitioner tenure and discontinued her employment effective August 12, 2015. Id. Ex. 8. Petitioner then lost a position teaching special education at another New York City high school for the 2015-16 year, see id. Ex. 10, because respondents erroneously had recorded petitioner's previous employment as ‘terminated‘ instead of ‘discontinued‘ and failed to correct the error. Id. ¶ 33.

On June 26, 2015, petitioner filed an improper practice charge with the Public Employment Relations Board (PERB), NY Civ. Serv. Law § 209-a(1), alleging that respondents rated her ‘ineffective‘ and discontinued her employment in retaliation for her complaints about issues in Richmond Hill High School's special education department. V. Answer Ex. U. On February 12, 2016, after petitioner commenced this proceeding, an administrative law judge dismissed petitioner's PERB complaint, holding that respondents' ratings were based solely on her performance and were not in retaliation for her complaints, because the administrators evaluating petitioner had no knowledge of her complaints. Kushner v. Board of Educ. of City School Dist. of City of NY, 45 PERB ¶ 4515, 2016 WL 1169294 (Feb. 12, 2016).

On October 8, 2015, petitioner challenged the ‘ineffective‘ rating and discontinuance pursuant to New York Education Law § 3012-c, claiming respondents arbitrarily rated her ‘ineffective‘ for the 2014-15 school year, in retaliation for her complaints about special education issues. V. Answer Ex. W. On March 10, 2016, an arbitration panel held that petitioner's ‘ineffective‘ rating for the 2014-15 year was due solely to her performance and not in retaliation for her complaints. United Fedn. of Teachers, Local 2, AFT, AFL-CIO v. New York City Dept. of Educ., Op. & Award (Mar. 10, 2016) (Gavin, Arb.).

II. APPLICATION OF THE STATUTE OF LIMITATIONS TO THIS PROCEEDING

Petitioner commenced this proceeding November 30, 2015, to annul respondents' determination discontinuing her employment and denying her tenure and their ‘ineffective‘ rating of her performance for the 2014-15 school year. Insofar as petitioner challenges DOE's denial of her application for reduction of her probationary period, the applicable statute of limitations, C.P.L.R. 217(1), required her to commence the proceeding within four months after her receipt of DOE's denial. Banos v. Rhea, 25 NY3d 266, 280 (2015); Kahn v. New York City Dept. of Educ., 18 NY3d 457, 462 (2012); Yarbough v. Franco, 95 NY2d 342, 346 (2000); King v. Department of Educ. of City of NY, 128 AD3d 443, 444 (1st Dep't 2015). Respondents maintain that the statute of limitations bars petitioner from claiming any entitlement to a reduction of her probationary period because she failed to challenge their determination dated November 6, 2014, denying her application for that reduction within four months.

Since respondents maintain this defense, they bear the burden to show that they provided petitioner notice of their denial of her application more than four months before November 30, 2015. LaSonde v. Seabrook, 89 AD3d 132, 139 (1st Dep't 2011); Vadell v. City of New York Health and Hosps. Corp., 233 AD2d 224, 225 (1st Dep't 1996); Hilburg v. New York State Dept. of Transp., 138 AD3d 1062, 1063-64 (2d Dep't 2016). Respondents must show that they mailed the determination to petitioner via their regular mailing procedures or that petitioner received actual notice of the determination. California Suites, Inc. v. Russo Demolition Inc., 98 AD3d 144, 152 (1st Dep't 2012); Goldberg, Weprin & Ustin, LLP v. Pearlman, 83 AD3d 554, 555 (1st Dep't 2011); Badio v. Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229 (1st Dep't 2004).

Although petitioner did not file her petition until more than a year after the date of the denial, November 6, 2014, petitioner attests that she never received the denial and only learned that her application was denied when she contacted respondents after DOE terminated her employment. V. Pet. ¶ 35. Respondents present no evidence that the determination dated November 6, 2014, actually was mailed or delivered to petitioner, or otherwise rebut her sworn allegation that she did not receive that determination, and thus fail to show that they provided her notice of the denial. Gonzalez v. Ross, 47 NY2d 922, 923 (1979); Ijbara v. City of New York, 300 AD2d 251, 253-54 (1st Dep't 2002); Francis v. Wing, 263 AD2d 432, 432-33 (1st Dep't 1999); City of Mount Vernon v. OMRDD, 56 AD3d 771, 771 (2d Dep't 2008). See Banos v. Rhea, 25 NY3d at 279-80; King v. Department of Educ. of City of NY, 128 AD3d at 444; California Suites, Inc. v. Russo Demolition Inc., 98 AD3d at 152; Goldberg, Weprin & Ustin, LLP v. Pearlman, 83 AD3d at 555. Therefore, based on the unrebutted verified petition's allegation that petitioner did not learn that DOE had denied her application for reduction of her probation until after DOE discontinued her employment August 12, 2015, petitioner's challenge of that denial, filed November 30, 2015, is timely.

III. RESPONDENTS' DISCONTINUANCE OF PETITIONER'S EMPLOYMENT

A. Applicable Standards

Petitioner must complete a three year probationary period before she is eligible for tenure. NY Educ. Law §§ 2573(1)(a)(i), 3012(1)(a)(i). Before the expiration of her probationary period, DOE must notify petitioner whether she will be recommended for tenure. NY Educ. Law §§ 2573(1)(a)(i), 3012(2)(a). If respondents failed either to grant or to deny petitioner tenure upon the expiration of her probationary period and continued to employ her as a teacher, she acquired tenure by estoppel. Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d 110, 114 (1997); Andrews v. Board of Educ. of the City School Dist. of the City of NY, 92 AD3d 465, 465 (1st Dep't 2012); Triana v. Board of Educ. of City School Dist. of City of NY, 47 AD3d 554, 556 (1st Dep't 2008). ‘Jarema Credit,‘ V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2, named for the original law's sponsor, Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114, allows petitioner to use her prior service as a substitute teacher to reduce her probationary period by up to two years. NY Educ. Law § 2573(1)(a)(i); Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114; McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 NY2d 183, 188 (1995); Carpenter v. Board of Educ. of Locust Val. Cent. School Dist., 71 NY2d 832, 834 (1988); Roberts v. Community School Bd. of Community Dist. No. 6, 66 NY2d 652, 654 (1985).

Respondents may discontinue petitioner's service during her probationary employment for any reason or none at all, as long as the discontinuance is not in bad faith, in violation of law, or for a constitutionally impermissible purpose. NY Educ. Law §§ 2573(1)(a)(i), 3012(1)(a)(i); Kahn v. New York City Dept. of Educ., 18 NY3d at 471; Kolmel v. City of New York, 88 AD3d 527, 528 (1st Dep't 2011); Brown v. City of New York, 280 AD2d 368, 370 (1st Dep't 2001). See Talamo v. Murphy, 38 NY2d 637, 639 (1976); Che Lin Tsao v. Kelly, 28 AD3d 320, 321 (1st Dep't 2006). Petitioner's showing that respondents' discontinuance of her probationary employment and denial of her application to reduce her probation violated the law will warrant reversal of those determinations. Frasier v. Board of Educ. of City School Dist. of City of NY, 71 NY2d 763, 765 (1988); Brennan v. City of New York, 123 AD3d 607, 608 (1st Dep't 2014); Zarinfar v. Board of Educ. of City School Dist. of City of NY, 93 AD3d 466, 467 (1st Dep't 2012); Kolmel v. City of New York, 88 AD3d at 528. If petitioner has earned tenure, respondents must demonstrate just cause to terminate her employment and afford her the procedural protections of Education Law § 3020-a. NY Educ. Law § 3020(1).

B. Jarema Credit

Respondents denied petitioner's application for Jarema credit because her substitute service was outside the New York City public school system. V. Answer Ex. BB, at 1. Respondents insist that, because DOE is empowered to determine the qualifications to serve as a substitute teacher in New York City public schools, DOE also is empowered to require petitioner to have held a New York City substitute teacher's license and have substituted in a New York City public school to qualify for Jarema credit. Education Law § 2573, however, does not require that petitioner have held a New York City substitute teacher's license or that her service have been within the New York City public schools to earn Jarema credit and reduce her probationary period.

Consistent with the statute, moreover, DOE's application for a teacher to reduce her probationary period does not indicate that a teacher's substitute service must be under a New York City substitute teacher license or in the New York City public schools to qualify for Jarema credit. The application plainly instructs that teachers may apply for a reduction of their probationary period based on ‘previous teaching (in the level and area of their appointed license) for the New York City Department of Education or in another school district within New York State.‘ V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2 (emphasis added). ‘Section 1: Jarema Credit‘ directs the teacher to: ‘Indicate below . . . regular substitute service in NYC public day schools that may be credited towards the reduction of probationary period,‘ but does not direct that regular substitute service outside New York City public schools, but within New York State, may not also be credited to reduce a probationary period. V. Pet. Ex. 5, at 1; V. Answer Ex. BB, at 2. Respondents cite no statute, regulation, or other authority for imposing such a limitation.

Petitioner fulfilled the requirements for Jarema credit under Education Law § 2573 and the DOE application, since she served as a regular substitute teacher at a public school in New York State for over 160 days in the same area and level as her probationary appointment. Therefore petitioner is entitled to Jarema credit of one year, reducing her probationary period to two years and reversal of respondents' determination denying petitioner Jarema credit and a reduction of her probationary period. Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114; McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 NY2d at 188; Carpenter v. Board of Educ. of Locust Val. Cent. School Dist., 71 NY2d at 834; Roberts v. Community School Board of Community Dist. No. 6, 66 NY2d at 654.

C. Tenure by Estoppel

Since petitioner's probationary period is reduced to two years, respondents were required to grant or deny petitioner tenure before the conclusion of the 2013-14 school year. Since respondents failed to do so, petitioner acquired tenure by estoppel when she continued to teach through the 2014-15 year. Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 114; Andrews v. Board of Educ. of the City School Dist. of the City of NY, 92 AD3d at 465; McManus v. Board of Educ. of Hempstead Union Free School Dist., 87 NY2d at 188; Triana v. Board of Educ. of City School Dist. of City of NY, 47 AD3d at 556. Therefore respondents' discontinuance of petitioner's employment without a showing of just cause and without affording her the protections of Education Law § 3020-a also violated the law and must be reversed. Frasier v. Board of Educ. of City School Dist. of City of NY, 71 NY2d at 765; Brennan v. City of New York, 123 AD3d at 608; Zarinfar v. Bd. of Educ. of City School Dist. of City of NY, 93 AD3d at 467; Kolmel v. City of New York, 88 AD3d at 528.

Petitioner thus is entitled to reinstatement to her former position as a special education teacher at Richmond Hill High School, with tenure, as well as wages and any other benefits she was entitled to had her employment not been terminated August 12, 2015, retroactive to that date. Triana v. Board of Educ. of City School Dist. of City of NY, 47 AD3d at 56; Brown v. Board of Educ. of Mahopac Cent. School Dist., 129 AD3d 1067, 1071 (2d Dep't 2015). See Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 NY2d at 120. Respondents shall restore those entitlements to petitioner and eliminate any indication in their records that she was ‘terminated‘ in 2015.

IV. THE INEFFECTIVE RATING FOR THE 2014-15 SCHOOL YEAR

The dispositions of petitioner's appeals to PERB and to an arbitration panel pursuant to Education Law § 3012-c, who each upheld respondents' rating of her performance as ‘ineffective‘ for the 2014-15 school year and found that the rating was not retaliatory, collaterally estop petitioner from seeking to annul the rating here. Since petitioner has not amended her petition to challenge either of these dispositions, they now bar her from relitigating the merits of this rating. Humphries v. City Univ. of NY, 146 AD3d 427, 427 (1st Dep't 2017); Okocha v. City of New York, 122 AD3d 550, 551 (1st Dep't 2014); Joseph v. Board of Educ. of City of NY, 91 AD3d 528, 530 (1st Dep't 2012).

V. CONCLUSION

For the reasons explained above, the court grants the petition to the extent of:

(1) reversing respondents' denial dated November 6, 2014, of petitioner's application for a reduction of her probationary period;

(2) reversing respondents' discontinuance of petitioner's employment;

(3) reinstating petitioner as a tenured special education teacher, with all lost wages and other benefits since the discontinuance of her employment; and

(4) enjoining respondents to remove any record that she was ‘terminated‘ in 2015.

See C.P.L.R. §§ 409(b), 7803(3), 7806. The court denies petitioner's requests for any other relief, including her motion for a preliminary injunction, which this order renders moot. This decision constitutes the court's order and judgment granting the petition to the extent set forth and otherwise dismissing the proceeding. C.P.L.R. §§ 411, 7806.

DATED: June 30, 2017

_____________________________

LUCY BILLINGS, J.S.C.

Lucy Billings, J.

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