The application by petitioner for an order pursuant to C.P.L.R. Article 78, reversing respondent's determination to sustain the unsatisfactory rating (U-rating) that petitioner received for the 2007-08 school year is denied and the petition is dismissed.

Petitioner asserts that respondent's determination to sustain the unsatisfactory rating that petitioner received for the 2007-08 school year should be reversed because there is no probative evidence that petitioner acted inappropriately toward a particular student or the student's family and because Principal Marsella only gave petitioner the unsatisfactory rating in retaliation for a decision vacating a previous U-rating petitioner received in 2005.

Respondent opposes the application and submits a verified answer denying petitioner's claims. Respondent asserts that it gave petitioner an unsatisfactory rating after the Office of Special Investigations ("OSI") conducted an investigation and substantiated the allegation that petitioner violated Chancellor's Regulation A421 by speaking inappropriately to a student and that petitioner acted unprofessionally when speaking to the student's aunt and uncle. According to respondent, the determination to give the petitioner a U-rating was based on substantial evidence. Regarding petitioner's violation of Chancellor's Regulation A421, petitioner admitted to meeting and counseling "Student A"^[FN1] on November 19, 2007. Later that day, Student A [*2]reported to her aunt and uncle that she had been verbally abused by petitioner. Student A's aunt and uncle then reported it to the principal who then referred it to an OSI investigator. An OSI investigator interviewed all witnesses to the incident and relevant parties and completed an OSI report which substantiated the allegation. Additionally, petitioner admitted to referring to "the projects" when talking to Student A's aunt and uncle. The aunt and uncle reported that petitioner's comments were inappropriate, which prompted the investigator to interview petitioner and Student A's aunt and uncle, the only witnesses to the incident. Upon completing his OSI report, the investigator concluded that petitioner had made an inappropriate remark about living in "the projects" to Student A's aunt and uncle. On April 17, 2008 petitioner was provided an opportunity to respond to the OSI reports and after meeting with petitioner, Principal Marsella gave petitioner an unsatisfactory rating after she determined that petitioner had yelled at Student A and petitioner had made inappropriate remarks to Student A's aunt and uncle.

Respondent also argues that petitioner's request for an appeal of the unsatisfactory rating was denied after a hearing was held on September 20, 2010. The hearing was conducted by an officially designated Chancellor's Committee (the "Committee"). The Committee heard oral testimony, viewed documentary evidence and questioned the petitioner directly. Upon completing its review, the Committee denied the appeal and sustained the unsatisfactory rating.

In order for this court to overturn a determination by an administrative agency such as the New York City Department of Education, the judgment and punishment must shock the conscience as to the proportionality to the offense and the determination must be upheld if it is supported by substantial evidence and is not found to be arbitrary or capricious. The sanction must constitute an abuse of discretion as a matter of law for it to be reversed. Pell v. Board of Education, 34 NY2d 22.237 (1974).

If the agency's determination is rationally supported, the court must sustain the determination "even if the court concludes that it would have reached a different result than the one reached by the agency" (citation omitted). Peckham v. Calogerao 12 NY3d 424, 431 (2009). The court cannot "weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact finder" (citations omitted). Porter v. New York City Hous. Auth., 42 AD3d 314 (1st Dep't 2007). Respondent heard oral arguments, questioned petitioner directly and interviewed the student and the student's aunt and uncle. Upon completing its review, respondent found the student's argument to be more credible.

Courts have upheld New York City Department of Education determinations not to disturb hearing determinations where a principal found, upon an investigation, that a teacher made inappropriate remarks to students. Lackow v. Department of Educ. of the City of New York, 51 AD3d 563 (1st Dep't 2008). Petitioner admitted to referring to the projects when meeting with Students A's aunt and uncle and the Committee found petitioner's unsatisfactory rating to be supported by the evidence in the record.

Moreover, with respect to petitioner's contention that the principal and investigator were [*3]biased, the record does not support that allegation and the petitioner does not put forth substantiating evidence.

Accordingly, it is hereby,

ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs and disbursement to the respondent, New York City Department of Education.

Dated: August 8, 2011____________________________J.S.C.