Pierre v. New York City Dept. of Educ.

2024 NY Slip Op 30943(U)

• Court: New York Supreme Court, New York County
• Decided: March 20, 2024
• Status: Unpublished

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 State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official 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. ---------------------------------------------------------------------------------X

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. 650946/2022 PIERRE, DAVID vs. NEW YORK CITY DEPARTMENT OF EDUCATION Page 1 of 7 Motion No. 001

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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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