

Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of New York (2015 NY Slip Op 01384)





Matter of Gumbs v Board of Educ. of the City Sch. Dist. of the City of New York


2015 NY Slip Op 01384


Decided on February 17, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 17, 2015

Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels, Clark, JJ.


14213 104277/12

[*1] In re Darlene Gumbs, Petitioner-Appellant,
vBoard of Education of the City School District of the City of New York, et al., Respondents-Respondents.


Office of Richard E. Casagrande, New York (Lori M. Smith of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for respondents.

Judgment, Supreme Court, New York County (Alexander W. Hunter, Jr., J.), entered June 13, 2013, denying the petition to annul petitioner's unsatisfactory rating for the 2011-2012 school year and discontinuance of her probationary employment as a guidance counselor, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted, the unsatisfactory rating and discontinuance of employment annulled, and the matter remanded to respondents for further proceedings.
The record demonstrates deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-rating) for the 2011-2012 school year that were not merely technical, but undermined the integrity and fairness of the process (see Matter of Kolmel v City of New York, 88 AD3d 527, 529, 930 NYS2d 573 [1st Dept 2011]; Matter of Brown v City of New York, 111 AD3d 426 [1st Dept 2013]). Petitioner had received a satisfactory rating for the 2010-2011 school year. She did not receive the disciplinary letters underlying the U-rating for the 2011-2012 school year until June 20, 2012, at the end of the school year. Moreover, her receipt of the letters was contemporaneous with the issuance of the U-rating and recommendation of discontinuance. Thus, petitioner received scant notice of respondents' concerns about her performance and had little opportunity to improve her performance.
Even assuming petitioner was aware, via certain email and other correspondence, of the facts and circumstances underlying the respective disciplinary letters, there is no evidence to suggest that these communications, made in the ordinary course of petitioner's employment as a probationary guidance counselor, would have alerted her that her year-end rating or her employment was at risk. We note also, in light of the range of dates of the incidents referred to in the disciplinary letters, that no explanation has been given for respondents' failure to bring their concerns to petitioner's attention before June 2012.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 17, 2015
CLERK


