Justice M. Friedman
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PETITIONER, a tenured teacher employed by respondent Board of Education, sought to annul unsatisfactory observations and an unsatisfactory performance review rating for 2007-2008. The board cross-moved to confirm a denial of appeal of the review, and dismissal of the petition, arguing petitioner failed to exhaust contractual remedies and failed to state a cause of action. The court noted the agreement between the board and the teachers’ union provided that tenured teachers who receive unsatisfactory ratings in the prior year must have their review based on the “formal observations” model. It noted such plan was subject to a grievance procedure and arbitration only to determine if there was a failure to comply with procedural requirements. The court stated as petitioner disagreed with the ratings of informal observations she was obligated to grieve same. Hence, petitioner’s challenge in this Article 78 action to the informal observations was barred by her failure to exhaust the grievance procedure. But the court noted it could not find that a sole formal observation was sufficient to provide a rational basis for the unsatisfactory rating. It granted annulment of respondent’s denial of petitioner’s appeal and remanded the matter to the board.
