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Decision No. 12,879

Appeal of MARY NICHOLAOU-GUIRGUIS from action of the Board of Education of the City School District of the City of New York.

Decision No. 12,879

(January 19, 1993)

Lawrence E. Becker, Esq., Counsel to the Chancellor, attorney for respondent, Donna E. Anderson, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the decision of the Board of Education of the City School District of the City of New York ("respondent") to discontinue her services as a probationary teacher at Brooklyn Technical High School ("Brooklyn Tech"). The appeal must be sustained in part.

Petitioner, an English teacher, was transferred to Brooklyn Tech in February 1991. During the course of petitioner's employment, respondent notified her that her teaching performance was unsatisfactory. On October 1, 1991, the Chancellor informed petitioner that effective October 25, 1991, her services would be discontinued. Petitioner sought review of the decision by a review panel established pursuant to respondent's bylaws. The panel upheld the Chancellor's decision. On February 4, 1992, the Chancellor affirmed the panel's recommendation and terminated petitioner's services. This appeal ensued.

Petitioner alleges that her dismissal was discriminatory, in violation of Title VII of the Civil Rights Act of 1964. She also contends that she was improperly notified of her dismissal in violation of Education Law '3031. In addition, petitioner alleges bias in the review process, claiming that the panel chairperson was partial toward her supervisor. Petitioner seeks reinstatement and transfer to another high school in New York City.

Respondent contends that discontinuing petitioner's probationary services was within its discretion, and claims that unless discriminatory, the dismissal of a teacher during probation is not subject to review. Respondent alleges that it properly notified petitioner of its decision to discontinue her services. Respondent also contends that an appeal under Education Law '310 is not the proper forum to bring a claim of discrimination.

Education Law '2573(1)(a) establishes respondent board's authority to discontinue the services of a probationary teacher at any time during the probationary period. Although a board of education has broad discretion to terminate a probationary teacher's employment, a teacher's services may not be terminated for impermissible reasons (James v. Board of Education of Central School District No. 1 of the Towns of Orangetown and Clarkstown, 45 AD2d 1017, 358 NYS2d 205, aff'd 37 NY2d 891, 378 NYS2d 371 [1975]; Appeal of Vienie, 31 Ed Dept Rep 216; Appeal of Levy, 28 id. 63; Appeal of Jimenez-Barreca, 27 id. 346).

Petitioner provides no facts to substantiate her claim that her dismissal was discriminatory. Since petitioner bears the burden of establishing the facts upon which a claim for relief is made (Appeal of Negrin, 29 Ed Dept Rep 484), and offers only innuendos of racial collusion between her supervisor and the panel chairperson, the claim that her dismissal was improper must be dismissed.

Regarding petitioner's allegations that respondent violated her rights under Title VII of the Civil Rights Act of 1964, an appeal to the Commissioner of Education is not the proper forum for addressing such claims. In addition, respondent alleges that petitioner filed a complaint with the New York State Division of Human Rights alleging discrimination on the basis of national origin. According to the record, that complaint was still pending at the time this appeal was filed. Accordingly, petitioner has already chosen a forum in which to litigate her Title VII claims, and may not relitigate the same issues in a proceeding instituted pursuant to Education Law '310 (Appeal of Green, 31 Ed Dept Rep 512; Appeal of Hilow, 31 Ed Dept Rep 78; Appeal of Bolecek, 26 id. 154).

Regarding petitioner's allegations that respondent violated Education Law '3031 because the Chancellor failed to notify her of his intention to discontinue her services and furnish her with a written statement of the reasons for his recommendation, the record indicates that petitioner was notified in her annual review that her performance was unsatisfactory and was informed thereafter of the Chancellor's recommendation to discontinue her services. Included in the review was an explanation of respondent's reasons for recommending petitioner's termination. Accordingly, I find no violation of Education Law '3031 that requires a statement of reasons for a teacher's dismissal.

With respect to petitioner's claim that she was not given timely notice, Education Law '3031 requires thirty day notice to a probationary teacher prior to recommending to the board of education a teacher's discontinuance of services. In addition, Education Law '3019-a requires a thirty day written notice to a probationary teacher prior to the effective date of termination. Education Law '3031 provides a teacher with the opportunity to present to the board of education a response to the superintendent's recommendation of dismissal before it votes on the matter, while the notice required pursuant to '3019 is intended to allow a teacher whose services will be discontinued the opportunity to seek other employment (Matter of Slater, 12 Ed Dept Rep 275; Matter of Sternberg, 12 id. 277). Since their underlying purposes are quite different, these notices may not ordinarily run concurrently.

As to the thirty day notice requirement under Education Law '3031, in the City of New York the Chancellor is authorized to act on behalf of the board of education and, pursuant to an agreement with the United Federation of Teachers, a review of the Chancellor's decision to terminate a probationary teacher's employment may be requested in accordance with respondent's bylaws in lieu of the board's review of a superintendent's recommendation (see Frazier v. Board of Education of the City School District of the City of New York, 71 NY2d 763). In this case, the Chancellor notified petitioner in writing on October 1, 1991, that her services would be terminated on October 25, 1991. Although the City Board of the City of New York properly dispensed with the thirty days' notice under Education Law '3031 in a manner consistent with its collective bargaining agreement, I find no waiver of the thirty days' notice prior to termination required by Education Law '3019-a. Since the record indicates that petitioner was only given twenty-five days' notice prior to her actual termination in violation of Education Law '3019-a, petitioner is entitled to her salary due for the thirty days following the formal action terminating the teacher's service (Matter of Gordon, 24 Ed Dept Rep 277; Matter of Durcan, 18 id. 30). Although the board's failure to give petitioner adequate notice does not render her dismissal ineffective, she is entitled to an additional five days' salary.

I have considered petitioner's other contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the City School District of the City of New York pay to petitioner a sum equal to five days' salary, to which she would otherwise have been entitled had notice been given in a timely manner.

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