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Decision No. 13,438

Appeal of VICTORIA FILLIE-FABOE from action of the Vocational Education and Extension Board of Nassau County regarding termination of probationary appointment.

Decision No. 13,438

(June 29, 1995)

Bee & Eisman, Esqs., attorneys for respondent, Daniel E. Wall, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the termination of her services as a probationary instructor by the Vocational Education and Extension Board of Nassau County ("respondent"). The appeal must be sustained in part.

Respondent first hired petitioner as a per diem instructor on April 19, 1993. On August 20, 1993 respondent appointed petitioner as a full-time instructor in its nursing program. Although the record is confused as to the precise date of her probationary appointment, it appears that petitioner was appointed to a probationary period not to exceed three years.

In July 1994, respondent's president and executive director received a number of student complaints concerning petitioner's teaching style. Following an investigation, respondent's executive director recommended that respondent discontinue petitioner's probationary status. Upon such recommendation, the members of respondent board voted unanimously to terminate petitioner's services. By letter dated August 26, 1994, respondent's executive director notified petitioner that her employment would be terminated effective September 1, 1994. Respondent did not provide petitioner with any written explanation.

On or about August 31, 1994, petitioner filed a complaint with the Nassau County Department of Human Rights alleging that her termination was motivated based upon her race, gender and religion. On or about September 2, 1994, petitioner filed another complaint with the Equal Employment Opportunity Commission alleging a violation of Title VII of the Civil Rights Act of 1964. In addition, on or about September 29, 1994, petitioner filed an improper practice charge with the New York State Public Employment Relations Board alleging violations of the New York State Civil Service Law. Petitioner commenced this appeal on September 27, 1994.

Petitioner contends that respondent failed to comply with Education Law ''3012, 3019-a and 3031. Petitioner also maintains that her dismissal was without merit, in bad faith and discriminatory. Petitioner seeks an order directing her reinstatement and reimbursement.

As a threshold matter, respondent contends that the petition should be dismissed on a number of procedural grounds. Specifically, respondent maintains that the petition is untimely, fails to comply with 8 NYCRR 275.4, is barred by the doctrine of election of remedies, fails to state a cause of action, fails to establish a predicate for jurisdiction and requests inappropriate relief. Furthermore, respondent contends that it was not obligated to comply with Education Law ''3012, 3019-a and 3031. Respondent also contends that its decision to terminate petitioner was for good cause and not discriminatory.

Before reaching the merits, I will address respondent's procedural defenses. Respondent maintains that this appeal is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Respondent's decision to terminate petitioner was made on August 26, 1994, and petitioner commenced this appeal on September 27, 1994. However, there is no indication as to when petitioner received formal notification of respondent's decision. Therefore, I cannot conclude that petitioner's appeal is late. Moreover, any delay in bringing the appeal was minimal, and respondent does not allege it has been prejudiced in any way by such delay.

Respondent also contends that the petition does not contain petitioner's post office address and telephone number as required by 8 NYCRR 275.4. Although the petition does not contain the required information, the record indicates that respondent possesses this information. It also appears that respondent was able to serve its answer upon petitioner without difficulty. Therefore, I do not find that petitioner's technical violation of the regulation warrants dismissal (Appeal of Mangan, 22 Ed Dept Rep 82).

Respondent also maintains that the petition should be dismissed for lack of jurisdiction. Specifically, respondent contends that the Commissioner of Education lacks jurisdiction under Education Law '310 to review a determination of a vocational education and extension board. Education Law '310 provides, in pertinent part:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:

(7) By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

Despite the seemingly broad language of the statute, the courts have interpreted '310(7) as relating to the common schools (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405; Matter of Bd. of Educ. of the City School Dist. of the City of Rome v. Ambach, et al., 118 AD2d 932; Matter of Bowen, et al. v. Allen, 17 AD2d 12, aff'd 13 NY2d 663). The term "common schools" has been interpreted to mean the State's public elementary and secondary schools (Appeal of Interfaith Medical Center, supra). The question at issue here is whether or not a vocational education and extension board constitutes a common school under '310.

Education Law '1101 provides for the establishment of county vocational education and extension boards "for the purpose of giving instruction in agriculture and home economics and such other special subjects as may be approved by the Commissioner." Among other things, '1102 gives a vocational education and extension board the power to contract with local school districts to provide vocational education and transport pupils under 21 years of age to classes maintained by such board. Therefore, to the extent a vocational education and extension board is authorized to educate public school pupils, it falls within the definition of "common schools," and as such is under the Commissioner's '310 jurisdiction. Moreover, I note that I have exercised jurisdiction over a vocational education and extension board in a prior appeal (Appeal of Albert, et al., 32 Ed Dept Rep 615). Accordingly, I decline to dismiss the petition for lack of jurisdiction.

Respondent also maintains that petitioner is barred from bringing this appeal because she has chosen to litigate her claims of discrimination and improper actions in other forums. The record indicates that petitioner filed a complaint with the Nassau County Department of Human Rights concerning her termination. The exact nature of the complaint, however, is not apparent from the record. In addition, petitioner filed a complaint with the Equal Employment Opportunity Commission alleging discrimination on the basis of race, sex and religion in violation of Title VII of the Civil Rights Act of 1964. Lastly, petitioner filed an improper practice charge with the New York State Public Relations Board alleging, interalia, a violation of Civil Service Law '209-a(1)(a). However, the specific charges are not part of the record. Therefore, it is not evident from the record before me that the issues petitioner raises in this appeal are identical to those raised in other forums. Accordingly, I will not dismiss the appeal on this basis.

Turning to the merits, I conclude that petitioner held a probationary appointment pursuant to Education Law '1102(3). That section provides that members of the teaching and supervisory staff of a vocational education and extension board are appointed by a majority vote of the board upon recommendation of the director for a probationary period not to exceed three years. Section 1102(3) further provides that "services of members of the teaching and supervisory staff so employed may be discontinued at any time during the probationary period, upon the recommendation of the director, by majority action of such board." These provisions are substantially the same as those contained in Education Law '3012(1) which apply to teachers in school districts.

Pursuant to Education Law '3012(1)(a), the services of a probationary teacher may be discontinued at any time during the probationary period and dismissal of a probationary teacher will not be set aside unless the teacher shows that a board terminated service for a constitutionally impermissible purpose (James v. Bd. of Educ. of Central School District No. 1 of Towns of Orangetown and Clarkstown, 37 NY2d 891; Appeal of Janes, 33 Ed Dept Rep 6). Although petitioner makes conclusory allegations that her dismissal was without merit, in bad faith and discriminatory, she offers no proof to support her claim. In fact, with regard to discrimination, petitioner does not even identify her race or religion or specify the basis for her gender discrimination claim. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Since petitioner's allegations are wholly conclusory, I find that petitioner has not met her burden of proof.

Moreover, it appears from the record that respondent's decision had a rational basis. Respondent received several complaints from students concerning petitioner's teaching style. Following an investigation, the executive director recommended termination. Therefore, it appears that respondent had a legitimate basis for termination. Accordingly, there is no basis for me to order petitioner's reinstatement.

The record before me, however, does indicate that respondent failed to comply with Education Law '3019-a, which provides:

A teacher who desires to terminate his services to a school district at any time, shall file a written notice thereof with the school authorities of such school district or with the board of cooperative educational services or county vocational education and extension board at least thirty days prior to the date of such termination of services. School authorities or such boards which desire to terminate the services of a teacher during the probationary period shall give a written notice thereof to such teacher at least thirty days prior to the effective date of such termination of services.

This section clearly applies to a vocational education and extension board. Under this provision, 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 Fink, 33 Ed Dept Rep 340; Appeal of Nicholau-Guirguis, 32 id. 439). In this case, respondent advised petitioner by letter dated August 26, 1994 that her services would be terminated on September 1, 1994. By statute, the notice of termination should have been provided no later than August 2, 1994 or 24 days earlier than it was actually provided. Petitioner is therefore entitled to be paid for those 24 days.

Petitioner also maintains that respondent violated the procedures set forth in Education Law '3031. In this regard, I note that '3031 does not expressly apply to a county vocational education and extension board. Accordingly, I decline to find a violation of this section.

I have considered the parties remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Vocational Education and Extension Board of Nassau County pay to petitioner a sum equal to 24 days' salary, to which she would otherwise have been entitled had notice been given in a timely manner.

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