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Decision No. 14,913

Appeal of SHERYL McBETH from action of the Board of Education of the Baldwin Union Free School District and Kathy Weiss, Superintendent, regarding termination of employment.

 

Decision No. 14,913

 

(July 28, 2003)

 

Douglas L. Thomas, Esq., attorney for petitioner 

Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq. of counsel  

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District ("respondent") to terminate her employment.  The appeal must be dismissed.

On July 1, 2000, respondent appointed petitioner to a probationary position as principal of Brookside Elementary School.  On July 1, 2001, petitioner received a year-end performance evaluation from respondent"s superintendent.  The evaluation identified a number of petitioner"s strengths, but also stated that petitioner should communicate more effectively and improve her relationships with her colleagues.

On February 28, 2002, petitioner received a mid-year performance evaluation from the superintendent.  The evaluation again identified a number of petitioner"s strengths, but also emphasized that petitioner needed to communicate more effectively and improve her relationships with her colleagues.  It further indicated that petitioner needed to improve her attention to detail and promptness.

By letter dated June 7, 2002, the superintendent notified petitioner that, at respondent"s July 10, 2002 meeting, the superintendent would recommend to respondent that petitioner"s probationary employment be terminated.  The letter stated that petitioner had the right to request a statement of reasons for the recommendation. By letter dated June 11, 2002, petitioner did so.

By letter dated June 17, 2002, the superintendent notified petitioner that she was recommending termination of petitioner"s employment because petitioner failed to: fully engage in the duties and responsibilities of the position of elementary principal; develop a satisfactory working relationship with central office staff, fellow elementary principals, and the staff at her building; provide leadership at the building level; seek assistance and direction and consult with central office staff or fellow elementary principals when difficulties arose in the performance of duties and responsibilities or on matters of common concern; complete delegated responsibilities in a timely manner; and pay sufficient attention to detail.  The letter stated that, in accordance with Education Law "3031, petitioner had the right to file a response with the school district"s clerk no later than seven days prior to respondent"s July 10, 2002 meeting.

Petitioner did not file a response.   Rather, she commenced this appeal on or about July 5, 2002.  On July 10, 2002, respondent adopted the recommendation of the superintendent to terminate petitioner"s employment effective August 10, 2002.  Petitioner subsequently amended her petition to allege that she was improperly terminated.

Petitioner asserts that she was not provided sufficiently specific reasons for the termination of her employment and that the termination of her employment was arbitrary and capricious.  She further asserts that her employment was terminated because she is black, because the superintendent is friends with the president of the district"s teachers association who desired that petitioner be terminated, because the spouse of a member of respondent is a teacher at petitioner"s school who desired that petitioner be terminated, and in retaliation for alleged "whistle-blowing".

Respondent contends that petitioner"s employment was terminated for the reasons set forth in the June 17, 2002 letter from the superintendent to petitioner and that these reasons were sufficiently specific.  Respondent denies that the reasons alleged by petitioner played any role in the decision to terminate her employment.

Education Law "3031 provides that when a recommendation is made to discontinue the services of a probationary administrator, the administrator, upon request, must be furnished with a written statement giving the reasons for the recommendation.  The reasons must be sufficiently specific to afford the employee an opportunity to make an intelligent and meaningful response to the stated reasons (Appeal of Dituri and Blake, 42 Ed Dept Rep __, Decision No. 14,882; Appeal of Ruff, 33 id. 648, Decision No. 13,181; Appeal of Norman, 15 id. 304, Decision No. 9,186).  I conclude that the reasons provided by the superintendent were sufficiently specific to afford petitioner an opportunity to make an intelligent and meaningful response to the stated reasons.  In fact, in the petition in this appeal, petitioner provided a detailed response to the superintendent"s reasons for recommending the termination of her employment.

A board of education has the unfettered right to terminate a probationary administrator"s employment for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Education Law "3012(1)(b); Appeal of Mennella, 39 Ed Dept Rep 306, Decision No. 14,245, judgment granted dismissing petition to review, Mennella v. Mills, Sup. Ct., Albany Co., Special Term (Ferradino, J.), September 28, 2001, n.o.r.; cf., James v. Bd. of Educ., 37 NY 2d 891; Appeal of Wynne, 40 id. 521, Decision No. 14,544.  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which she seeks relief (Appeal of Lawson, 42 Ed Dept Rep __, Decision No. 14,826; Appeal of Tyk, 42 id. __, Decision No. 14,759).

Petitioner has not established that she was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription.  Although petitioner alleges that she was terminated because of "cronyism", "nepotism", her race, and in retaliation for alleged "whistle-blowing", she offers no proof to support her claims.  Moreover, the record contains evaluations of petitioner prepared by respondent"s superintendent indicating weaknesses in petitioner"s performance that persisted over time.  Therefore, I find that respondent had a rational basis for terminating petitioner"s employment. 

 

THE APPEAL IS DISMISSED.

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