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Decision No. 14,540

Appeal of JOHN GEORGE from action of the Board of Education of the City School District of the City of New York and Maria Santory Guasp, Superintendent, Community School District 9, regarding termination of a probationary teacher.

Decision No. 14,540

(February 22, 2001)

Richard B. Wolf, Esq., attorney for petitioner

Hon. Michael D. Hess, Corporation Counsel, attorney for respondents, Blanche Greenfield, Esq. and Michael DeLarco (awaiting admission), of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York and Maria Santory Guasp, Superintendent, Community School District 9 ("respondents"), to terminate his employment as a probationary teacher. The appeal must be dismissed.

Petitioner was serving as a probationary teacher in Community Elementary School 126 ("CES 126") in the Bronx when, on December 22, 1999, an incident occurred in his classroom during which a student’s hand was allegedly injured. The parties disagree as to what transpired in the classroom that day. Petitioner contends that he merely escorted the student back to his seat. Petitioner further asserts that any injury to the student’s hand had occurred the day before, during an incident in which the student allegedly punched a blackboard in another teacher’s classroom. Respondents, however, contend that petitioner impermissibly used corporal punishment to force the student back into his seat.

On December 23, 1999, the principal of CES 126 convened a meeting to discuss the prior day’s incident. In addition to the principal and petitioner, the meeting was attended by the alleged victim and his father, as well as several teachers and student witnesses. At the meeting, the student’s father claimed that his son’s hand had been fractured by petitioner during the incident. On that same day, December 23, respondent board’s Corporal Punishment Unit, Office of Special Investigations ("OSI") received an official complaint regarding the matter.

By letter dated January 3, 2000, respondent Guasp notified petitioner that, effective immediately, she was reassigning him to the District Office, pending the outcome of OSI’s investigation. By letter dated January 5, 2000, OSI investigator Christopher Dalton informed Guasp that, based on the preliminary findings of the investigation he had commenced on January 4, he was recommending that petitioner’s employment be terminated immediately. By letter dated January 5, 2000, respondent Guasp informed petitioner that his employment was being terminated immediately, based on the preliminary findings of the OSI investigation.

On January 12, 2000 a Step 2 grievance conference was conducted at petitioner’s request, pursuant to his collective bargaining agreement. At the conference, petitioner and his union representative asserted that petitioner’s termination was unfair because he had not been interviewed by the OSI investigator and because he was never made aware of the details of the allegations leveled against him. On January 14, respondent Guasp approved the hearing officer’s recommendation to deny the grievance.

On February 17, 2000, the parties entered into a stipulation of settlement of petitioner’s grievance. The stipulation called for petitioner’s immediate reinstatement as a probationary teacher with back pay. The stipulation also provided that: "This settlement is non-precedential and the parties agree that it will not be used in any other proceeding or forum except one to enforce its terms." The stipulation further provided that "any future proceedings taken by the District against the grievant will follow applicable regulations" and that the terms of the stipulation constituted "the entire agreement of all parties settling this case."

Immediately following his reinstatement, petitioner was notified in a letter from his principal that he was to meet with her to discuss the alleged incident of corporal punishment. The letter further indicated that because the meeting might lead to disciplinary action, petitioner was advised to bring his union representative. The meeting was held on March 9, 2000 and, by letter dated March 24, the principal informed petitioner that: "... nothing you stated at our conference on March 9, 2000 disproved the findings of the Office of Special Investigation. I can only conclude that you grabbed student W.V. and pushed him into a chair. You should consider this a letter of reprimand and are advised that I am requesting further disciplinary action on the part of the Community Superintendent."

On March 30, 2000, petitioner’s principal completed an annual performance evaluation of petitioner for the 1999 – 2000 school year. The principal gave petitioner an overall rating of "unsatisfactory," with specific ratings of "unsatisfactory" in several areas, including "professional attitude and professional growth," "control of class," and "attention to pupil health, safety and general welfare."

By letter dated March 31, 2000 the principal of CES 126 wrote to respondent Guasp, requesting that petitioner’s employment be terminated as a result of the findings of OSI’s investigation into petitioner’s alleged act of corporal punishment and because of his unsatisfactory performance rating. By letter dated April 3, 2000, the principal informed petitioner of her recommendation to the superintendent that petitioner’s services be discontinued, effective May 4, 2000. And by letter dated April 4, 2000, respondent Guasp informed petitioner that on May 3, 2000 she would determine whether his services as a probationary teacher would be terminated at the close of business that day. Guasp also informed petitioner that "[m]y consideration of your discontinuance is based on the reasons included in the documentation you received with your rating sheet. Therefore, your rating sheet and any accompanying documentation constitute a written statement of the reasons for my consideration of your discontinuance. You may submit a written response to the reasons no later than seven days prior to the date of my consideration and final determination of your discontinuance." By letter dated May 3, 2000, Guasp notified petitioner that his appointment was discontinued as of that day’s close of business, and that he was entitled to contest this determination using the review process prescribed in respondent board’s bylaws.

On June 15, 2000, the decision to terminate petitioner’s employment was reviewed by a Chancellor’s Committee. Both petitioner and respondents were permitted to present their cases. Testimony was given by petitioner; the OSI investigator; the Deputy Superintendent who had acted as the hearing officer at the Step 2 grievance conference; petitioner’s principal; and petitioner’s advisor. The Committee found that while the OSI investigator had conducted "a very substantial investigation," the "handling of the case by the Administration and the Office of Special Investigations was extremely flawed." Specifically, the Committee found that the failure of the OSI investigator to interview petitioner "did hinder [petitioner’s] due process rights." Despite the errors in the handling of the case, the majority of the Committee found that petitioner had used "excessive undue force against the child" and therefore concurred with the decision to discontinue petitioner’s probationary service. This appeal ensued.

Petitioner asserts that he never used corporal punishment on the student; that he was denied due process during OSI’s investigation of the alleged incident; and that respondents acted in an arbitrary and capricious manner. Petitioner seeks reinstatement to his former position, with back pay and benefits. Respondents contend that petitioner was properly terminated from his position as a probationary teacher.

As a preliminary matter, respondents assert that petitioner raises a new argument in his memorandum of law, and that I should therefore refrain from considering that argument. Specifically, petitioner’s memorandum of law includes the argument, not pled in his petition, that respondents failed to produce evidence to meet the requirements of the Commissioner’s regulation concerning corporal punishment. A memorandum of law may not be used to add belated assertions or exhibits that are not part of the record (Appeal of Citizens for Responsible Fiscal and Educational Policy, et al., 40 Ed Dept Rep ____, Decision No. 14,489; Appeal of Adriatico, 39 id. 248, Decision No.

14,228). Accordingly, I will not consider the argument belatedly advanced by petitioner in his memorandum of law.

A teacher’s probationary appointment may be terminated at any time, for any reason or for no reason at all, provided that the termination is not in bad faith, in violation of statutory or decisional law or for unconstitutional or illegal reasons (see, Matter of Amnawah v. Bd. of Educ. of the City of New York, 266 A.D.2d 455 [2nd Dept 1999]; Matter of Green v. Board of Educ. of the City of New York, 262 A.D.2d 411 [2nd Dept 1999]). The petitioner bears the burden of proving that the termination of his employment was for an impermissible reason (id.) and conclusory allegations of bad faith are insufficient to meet this burden (Matter of Green, supra).

Petitioner alleges that he was denied due process during the investigation into his alleged improper conduct, and that the termination of his service by respondents was therefore improper. However, petitioner provides no authority for the proposition that a denial of due process during an investigation is a sufficient basis for establishing that a probationary employee has been terminated for an impermissible reason. Furthermore, the record makes clear that petitioner was given ample opportunity, on multiple occasions, to present his version of the incident and to defend himself against the charges of corporal punishment.

In any event, the record establishes that in addition to the allegations of corporal punishment, petitioner’s probationary service was discontinued because of his unsatisfactory performance in the classroom. On March 30, 2000 petitioner received an unsatisfactory evaluation from his principal. The evaluation indicated that petitioner was deficient in several areas, including "professional attitude and professional growth," "control of class," and "attention to pupil health, safety and general welfare." Accordingly, I will not disturb respondents’ decision to terminate petitioner’s services (see, Appeal of Vienie, 31 Ed Dept Rep 216, Decision No. 12,624).

THE APPEAL IS DISMISSED.

END OF FILE