Decision No. 13,069

(December 22, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Steven Rappaport, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges an unsatisfactory evaluation dated May 7, 1993 and respondent's subsequent decision to terminate his services as a probationary teacher at John F. Kennedy High School. The appeal is sustained in part.

Petitioner is a licensed teacher of mathematics, day high schools. He received a probationary appointment effective September 5, 1989 and taught for three years at Monroe High School. On June 9, 1992, the principal at Monroe rated petitioner unsatisfactory and recommended that he be denied a certificate of completion of probation.

Petitioner and respondent subsequently entered into an agreement whereby petitioner was given an additional year of probationary service. The agreement contained the following provision: "No later than September 4, 1993, John Fink shall either be granted a permanent certificate of appointment upon satisfactory completion of the additional probationary period or denied such certificate unless he has been discontinued prior thereto."

In September 1992, petitioner was transferred to John F. Kennedy High School. During the 1992-1993 school year, several administrators reviewed petitioner's teaching performance, culminating in an observation report by the executive assistant to the Bronx Superintendent on May 7, 1993. In that report, the executive assistant recommended that petitioner be rated unsatisfactory and that he be denied completion of probation.

Immediately thereafter, petitioner prepared his first petition under Education Law '310 which was verified on May 15, 1993. My Office of Counsel rejected that petition for noncompliance with procedural rules. On June 9, 1993, the principal of John F. Kennedy High School signed an unsatisfactory rating and recommended that petitioner be denied a certificate of completion of probation. Petitioner then prepared a second petition verified June 11, 1993. This second petition was served on respondent on June 11 and June 14.

In the second petition, which is the only application properly before me, petitioner claims discrimination based on age, color, creed and religion, and harassment resulting in physical and mental suffering. Although the petition is unclear, it refers to unfair observations but does not refer specifically to the principal's recommendation that petitioner's probationary service be terminated.

After the petition was filed, on June 22, 1993, Chancellor Joseph A. Fernandez wrote to petitioner informing him that his probationary service would be terminated effective June 30, 1993. Although the Chancellor's action is not technically challenged by the petition, both parties continued to serve papers after it occurred. Because both parties have treated the Chancellor's action as an integral part of this appeal and a logical extension of the unsatisfactory ratings and observations and negative recommendation, I will also review petitioner's termination.

On July 14, 1993, I denied petitioner's request for a stay and transmitted to both parties a request for further information and clarification pursuant to 8 NYCRR '276.5. Respondent replied to this request on July 20 and July 27; petitioner did not reply. Respondent's answer was served in August 1993 and responds to both petitions. In addition to denying any wrongdoing, respondent alleges that the petition fails to state a claim. Respondent further contends that it acted in good faith in discharging petitioner and that petitioner has failed to satisfy his burden of proving that his unsatisfactory evaluation and subsequent termination were in any way arbitrary or capricious, made in bad faith or made on some impermissible basis.

Petitioner has failed to support the allegations of discrimination based upon age, color, creed or religion as alleged in the petition. Indeed, the petition does not even set forth petitioner's age, color, creed, religion or any factual basis to persuade me that any such forms of discrimination took place. The burden of substantiating a claim of discrimination is clearly upon the petitioner (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439; Appeal of Negrin, 29 id. 484). The papers before me do not begin to approach the standard of proof required.

It is well established that school districts have broad discretion with respect to the termination of a probationary appointment (Matter of James v. Bd. of Ed., 45 AD2d 1017, aff'd 37 NY2d 891; Matter of Butler v. Allen, et al., 29 AD2d 799; Appeal of Nicholaou-Guirguis, supra). In the case before me, petitioner was clearly put on notice at the end of the 1991-1992 school year that his performance was not considered satisfactory for purposes of a tenure appointment. Petitioner has included observation reports dated November 13, 1992 and December 8, 1992. The November 13 report indicates that the lesson observed was generally satisfactory but points out a number of shortcomings. The December 8 report describes the lesson observed as "minimally satisfactory" but found that petitioner's lesson planning was clearly deficient. The evaluation found that much time was wasted through poor teaching techniques. In summary, petitioner has failed to produce any credible evidence that his unsatisfactory rating and subsequent dismissal resulted from discrimination or harassment.

While the record before me does not provide any basis for ordering respondent to restore petitioner to a full-time teaching position in the district or otherwise annulling his dismissal, I do find that his rights under Education Law '3019-a were not respected. Under that section, a teacher whose services are to be terminated during the probationary period must be given written notice at least thirty days prior thereto, and failure to provide such notice entitles the teacher to whatever salary may be due for the thirty days following the formal notice terminating his services (Appeal of Nicholaou-Guirguis, supra; Matter of Gordon, 24 id. 277). In this case, the Chancellor advised petitioner on June 22, 1993, that his services would be terminated June 30,1993. By statute, the notice of termination should have been provided no later than May 31, 1993, or 22 days earlier than it actually was provided. Petitioner is therefore entitled to be paid for those 22 days.

I have considered the parties' 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 twenty-two days' salary, to which he would otherwise have been entitled had notice been given in a timely manner.

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