Petitioner (self-represented): David Deutsch
For Respondents: Michael A. Cardozo Corporation Counsel for the City of New York
By: Daniel J. LaRose, Esq.
Michael D. Stallman, J.
Petitioner, a tenured teacher at a New York City public school, received an overall unsatisfactory rating (U-rating) for the 2010-2011 school year. Petitioner brings this Article 78 proceeding to annul the U-rating. The issue presented is whether respondents acted arbitrarily and capriciously in determining that petitioner should receive an overall U-rating based on three incidents (and related unsatisfactory comments), even though petitioner received otherwise satisfactory comments in his annual professional performance review and satisfactory ratings in all his formal classroom observations.
Petitioner is a tenured teacher who has been teaching at the Manhattan Center for Science and Mathematics (MCSM), a magnet public high school in East Harlem, for over 20 years. According to petitioner, he has taught Advanced Placement Physics and Regents Physics at the MCSM, and he was a recipient of the Blackboard Award for Outstanding Science Teaching. (Verified Petition ¶ 9.) It is undisputed that, for the 2010-2011 school year, petitioner served as a union delegate for the United Federation of Teachers (UFT), and also as the UFT representative on the School Leadership Team. 
Prior to the 2010-2011 school year, petitioner had never received a U-rating. (Id.; Verified Answer ¶ 9.) It is undisputed that the MCSM formally reviewed petitioner's class seven times during the 2010-2011 school year, and each of these formal observations resulted in satisfactory ratings. (See Verified Petition, Ex C; Verified Answer ¶ 16.)
In Section 1 of his annual professional performance review for the 2010-2011 school year, petitioner received satisfactory comments in 19 out of 23 areas (Verified Petition, Ex E.) The four areas where petitioner received unsatisfactory comments were: (1) Voice, speech, and use of English; (2) Professional attitude and professional growth; (3) Maintenance of good relations with other teachers and with supervisors; (4) Effort to establish and maintain good relationships with parents. (Id.) In Section 2 of the annual professional performance review, petitioner received an overall evaluation of unsatisfactory, i.e., a U-rating. 
Petitioner's overall U-rating was based on three incidents that occurred during the 2010-2011 year. (Verified Petition ¶ 19; Verified Answer ¶ 19.) Section 4 of the annual professional performance review sets forth three documents to substantiate the U-rating, with a brief description of each document: (1) a disciplinary letter dated January 3, 2011 for "Cursing and aggressive behavior toward supervisor in front of staff and parents"; (2) a disciplinary letter dated February 16, 2011, for "Willful failure to follow school rule. Attempt to misrecord attendance record"; and (3) a disciplinary letter dated June 14, 2011 for "Failure to follow directive when asked to dept. meeting." (Id.)
The First Incident: "Cursing and aggressive behavior"
It is undisputed that, on December 21, 2010, petitioner said "Damn you" to the MCSM's principal, J. David Jimenez, after an ad hoc committee meeting of the School Leadership Team. According to petitioner, "Damn you" was uttered in a private conversation, out of frustration.
The disciplinary letter dated January 3, 2011 by Principal Jimenez states, in pertinent part:
"On December 23, 2010, I met with you and your union representative, Eric Cohen, to discuss an allegation against you of misconduct....
I began the meeting by asking you to explain why you said, damn you' to me on December 21, 2010 after we had just finished an ad hoc committee meeting of our SLT. Before you could reply Mr. Cohen said that he did not believe that damn you' was necessarily a curse. When I asked you if you agreed, you replied, If you were offended by my statement then I apologize.' Although I thank you for your apology, I regret that you failed to provide me with an explanation as to why you said damn you' to me.'"
(Verified Petition, Ex F.)
The Second Incident: "Willful failure to follow school rule. "
It is undisputed that petitioner was not present at work on February 3, 2011. The disciplinary letter dated February 16, 2011 by Denise Winchester, Assistant Principal ...