Opinion
13035 Index No. 159310/2017 Case No. 2019-4731
02-04-2021
In the Matter of Luckisha AMANWAH, Petitioner–Appellant, v. The DEPARTMENT OF EDUCATION OF the CITY OF NEW YORK, et al., Respondents–Respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
Judgment, Supreme Court, New York County (John J. Kelley, J.), entered May 13, 2019, denying the petition which challenged respondents' issuance of an unsatisfactory rating for the 2016–2017 school year on June 21, 2017, and the determination to discontinue petitioner's probationary position effective July 31, 2017, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to demonstrate that respondents' determination to discontinue her probationary position as assistant principal " ‘was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith’ " ( Matter of Mendez v. New York City Dept. of Educ., 28 N.Y.3d 993, 994, 41 N.Y.S.3d 208, 63 N.E.3d 1152 [2016] ). As found by Supreme Court, petitioner's unsupported allegation that the discontinuance was in retaliation for her purported refusal to negatively evaluate two teachers failed to evidence bad faith (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; see also Matter of Parris v. New York City Dept. of Educ., 111 A.D.3d 528, 528, 975 N.Y.S.2d 42 [1st Dept. 2013], lv denied 23 N.Y.2d 903, 2014 WL 1887333 [2014]). The approximate two-year gap between the alleged protected activity and any adverse action by respondents is too remote to warrant an inference of causal connection (see Parris at 529, 975 N.Y.S.2d 42 ; Baldwin v. Cablevision Sys. Corp., 65 A.D.3d 961, 967, 888 N.Y.S.2d 1 [1st Dept. 2009], lv denied 14 N.Y.3d 701, 2010 WL 456884 [2010] ). Further, the record includes evidence of disciplinary letters showing dissatisfaction with petitioner's work performance that predate the alleged protected activity, demonstrating good faith and refuting the allegation of retaliation (see Matter of Leo v. New York City Dept. of Educ., 100 A.D.3d 536, 537, 954 N.Y.S.2d 89 [1st Dept. 2012] ; Parris, 111 A.D.3d at 528, 975 N.Y.S.2d 42 ). Petitioner's contention that her annual reports of work performance are unfair and inaccurate, even if true, do not establish bad faith (see Matter of Hawkins v. Farina, 171 A.D.3d 624, 625, 97 N.Y.S.3d 469 [1st Dept. 2019] ; Matter of Mathew v. Board of Educ. of the City Sch. Dist. of the City of N.Y., 168 A.D.3d 496, 496, 92 N.Y.S.3d 6 [1st Dept. 2019] ).
Supreme Court properly declined to consider petitioner's conclusory claim of tenure-by-estoppel, raised for the first time in her reply papers (see 416 W. 25th St. Lender LLC v. 416 W. 25th St. Assoc., LLC, 182 A.D.3d 432, 433, 119 N.Y.S.3d 862 [1st Dept. 2020] ; Matter of Cherry v. Horn, 66 A.D.3d 556, 557, 887 N.Y.S.2d 82 [1st Dept. 2009] ).
Petitioner failed to show that the issuance of the unsatisfactory rating which preceded the discontinuance was arbitrary and capricious, as evidence showing documented work issues during the 2016–2017 school year provided a rational basis (see Matter of Freytes v. City of New York, 146 A.D.3d 678, 678, 46 N.Y.S.3d 51 [1st Dept. 2017] ; Matter of Van Rabenswaay v. City of New York, 140 A.D.3d 596, 596, 33 N.Y.S.3d 699 [1st Dept. 2016] ).