Decision No. 13,025

(October 19, 1993)

Daniel J. Mastrella, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner challenges respondents' placement of an incident report in her personnel file. Petitioner requests that I direct respondent to remove the report from her file and award her the position of TV coordinator at the high school. The appeal must be dismissed.

Petitioner is a tenured library media specialist. During the 1990-91 and 1991-92 school years, petitioner taught television production at the senior high school and also served as TV coordinator for that building. On or about June 27, 1991, petitioner had a conversation with a high school student concerning his use of school equipment to record the high school graduation ceremony. The student perceived the teacher's remarks to be threatening and the student and his parents complained to school authorities.

School personnel, assisted by the district's legal counsel, investigated the complaint. Petitioner was one of those consulted during the investigation. After the investigation concluded, the superintendent of schools sent petitioner a draft "incident report" on or about October 25, 1991 with a request that she review it and meet with the superintendent to discuss it. The incident report referenced another letter in petitioner's personnel file, of which petitioner was previously unaware. This caused petitioner to initiate a contractual grievance proceeding. The grievance proceeding resulted in the rewriting of the October 25, 1991 incident report to delete any reference to the previous letter in petitioner's personnel file. A copy of the revised report was sent to petitioner by the assistant superintendent for curriculum and instruction on or about July 27, 1992, with a cover letter indicating that petitioner had the right to append any comments she wished to make and could meet with the assistant superintendent to discuss the matter.

Petitioner's counsel wrote to the assistant superintendent on August 21, 1992 requesting that the report be retracted because it constituted disciplinary action, thus triggering the due process requirements of Education Law '3020-a. On September 1, 1992 counsel to the district advised petitioner's counsel that the report would not be retracted and that petitioner's comments concerning the report would be filed with the report.

The record also indicates that at the close of the 1991-92 school year, petitioner's position at the high school was eliminated and she was transferred to a position in her tenure area at the junior high school. Petitioner commenced this appeal on or about October 7, 1992.

Petitioner contends that the incident report contains biased conclusions based upon interviews conducted without her presence or input and also constitutes a reprimand which cannot be given to her without following the procedures set forth in Education Law '3020-a. Petitioner contends that she has been stigmatized by the inclusion of the report in her personnel file, that she has been wrongfully denied the position of TV coordinator at the Webster High School and that the position has been awarded to a less qualified teacher as a result of the inclusion of the reprimand in her personnel file.

Respondents contend that the report referred to by petitioner as a reprimand is actually an administrative supervisory evaluation of petitioner's conduct and performance, and that such a report may be written by respondents' administrators without resort to the disciplinary procedures contemplated by Education Law '3020-a. Respondent further contends that the TV coordinator position at the high school was filled through a non-biased selection process.

It is within the authority and responsibility of school districts to evaluate how teachers perform their duties. The mere fact that an evaluation is critical of a teacher's performance in one or another areas does not transform that evaluation into a "reprimand," which may only be issued following disciplinary action by a board of education against a tenured teacher in accordance with Education Law '3020-a (Holt vs. Board of Education, 52 NY2d 625; Matter of Leber and Brewster, 19 Ed Dept Rep 592; Matter of Kriaris, 31 Ed Dept Rep 353). I have reviewed the record and it is my conclusion that the incident report complained of by petitioner is nothing more than an administrative evaluation of her performance with respect to the conversation she had in June 1991. It was not issued by the board of education and, as has been repeatedly stressed by respondents, does not constitute disciplinary action. In accordance with Holt and its progeny, the type of critical evaluation at issue here is not one to which '3020-a applies. Consequently, petitioner's claim that the procedural protections of Education Law '3020-a have been violated is without merit.

In her appeal to the Commissioner, petitioner must establish the facts upon which the claim for relief is founded (Appeal of Gloria C., 32 Ed Dept Rep 664; 8 NYCRR '275.10). Petitioner has supplied no evidence to support her claim that she should have received the position of T.V. coordinator at the high school, nor is there any evidence to support the claim implicit in her pleadings that her original position at the high school was terminated as a result of the incident which gave rise to the report. Having failed to satisfy this burden, petitioner's request for relief cannot be granted (Appeal of Vienie, 31 id. 216).

THE APPEAL IS DISMISSED.

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