In the Matter of the Application of YOLANDA T. STRONG, Petitioner,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent For a Judgment Pursuant to C'PLR Article 78 of the Civil Practice I, aw and Rules Index No. 400171/13
Present: Donna M. Mills, Justice
DONNA M. MILLS, J.S.C.
In this special proceeding pursuant to C.P.L.R. Article 78, Petitioner Yolanda T. Strong ("Petitioner"), a former teacher employed by the Board of Education of the City of New York ("BOE"), seeks a reversal of the BOE's determination to uphold her annual performance rating of "Unsatisfactory" (("U-rating") for the 2005-06 school year. Petitioner further seeks an annulment of the BOE's determination to place her name on the BOE's Ineligible/Inquiry List effective March 17, 2006, following the termination of her BOE teaching license(s)/certificate(s), and seeks reinstatement as well as compensation for lost wages as well as pain and suffering. Respondent opposes the petition and cross-moves to dismiss the petition.
Petitioner was employed by the BOE, most recently as a per diem substitute teacher during the 2005-06 school year. On or about February 13, 2006, petitioner was assigned to teach a second grade class at Public School 52 ("PS 52") located in Queens, New York. On or about February 17, 2006, BOE's Office of Special Investigations ("OSI") received a call from an Assistant Principal at PS 52, Deborah Roney, who reported that an accusation of corporal punishment had been made against petitioner. Specifically, a student alleged that petitioner had grabbed him and swung him into a chair, causing him to fall to the floor and to sustain a scratch on his stomach. OSI Confidential Investigator Benjamin Francis was assigned to investigate the allegations.
Based on his investigation and the student interviews, OSI Investigator Francis issued his conclusions and recommendation on April 26, 2006. Specifically, OSI Investigator Francis concluded that the corporal punishment allegations against petitioner for her acts in grabbing the subject student and swinging him into a chair, causing him to fall, were substantiated. He further recommended that petitioner remain on the Ineligible/Inquiry List and that the matter be transferred to BOE Region 3 Superintendent Judith Chin so she could commence the process of terminating petitioner's employment.
For the school year ending in June 2006, petitioner received a U-rating from PS 52 Principal Linda Pough. Specifically, Principal Pough rated petitioner "unsatisfactory" in the areas of "Effect on character and personality growth of pupils, " and "Attention to pupil health, safety and general welfare."
Petitioner requested and had a U-rating review before the Chancellor's Committee on February 8, 2007. Chancellor's Committee Chairperson Michael Agona issued a report and recommendation to the Chancellor's Office. In his report Chairperson Agona found that petitioner engaged in corporal punishment and recommended to terminate any and all license(s)/certificate(s) held by petitioner.
On May 24, 2007, after reviewing Chairperson Agona's Report, Deputy Chancellor Andres Alonso, as the Chancellor's designee, adopted the recommendation, terminated petitioner's teaching license(s)/certificate(s) and sustained the decision to place petitioner's name on the Ineligibility/Inquiry List.
On or about July 30, 2007, petitioner commenced a special proceeding pursuant to Article 78 in New York County seeking to have her name removed from the Ineligible/Inquiry List, her U-rating for the 2005-06 school year annulled, and reinstatement to her position with the BOE as a per diem substitute teacher.
On August 19, 2008, a Justice of this Court granted petitioner's application to annul respondent BOE's determination to terminate petitioner's probationary employment as a per diem substitute teacher. However, the Appellate Division, First Department reversed this decision and dismissed the petition on May 26, 2009. The First Department dismissed the petition as time-barred having been commenced more than four months after petitioner was informed of BOE's determination that she had engaged in an act of corporal punishment in violation of the Chancellor's Rules and Regulation and that her name would remain on the Ineligible/Inquiry List. Moreover, the First Department found that Respondent BOE's determination that petitioner engaged in an act of corporal punishment was not arbitrary and capricious.
On Mach 20, 2012, petitioner then requested another U-rating appeal review to challenge the U-rating she received for the 2005-06 school year. Upon consideration of testimony and information presented, the Chancellor's Committee Chairperson Sheila Bobo issued a recommendation to the Chancellor to deny petitioner's U-rating appeal, concurring with the recommendation that her teaching license(s)/certificate(s) be terminated effective March 17, 2006.
On August 28, 2012, Senior Deputy Chancellor Shael Polakow Suransky, acting as the Chancellor's designee, sustained the recommendation of the Chancellor's Committee and denied the appeal of petitioner's U-rating as well as upheld the termination of any and all New York City Department of Education ...