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Decision No. 15,543

Appeal of DANIA HALL from action of the Board of Education of the North Bellmore Union Free School District regarding termination of employment.

Decision No. 15,543

(March 2, 2007)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the North Bellmore Union Free School District (“respondent”) to deny her tenure and terminate her employment.  The appeal must be dismissed.

Respondent employed petitioner as a probationary music teacher commencing September 1, 2002.  On April 1, 2005, the superintendent delivered a letter to petitioner, dated March 31, 2005, notifying her that he would recommend termination of her probationary employment at respondent’s May 5, 2005 meeting.  The letter stated that petitioner had the right to request a statement of reasons for the recommendation.  By letter dated April 14, 2005, petitioner did so.  By letter dated April 20, 2005, the superintendent provided petitioner with notice of the following reasons relative to her termination:  ineffective classroom management and student recordkeeping; insensitive to student needs; inability to motivate students; and failure to perform duty assignments satisfactorily.  Petitioner provided a written response dated April 25, 2005.  At its May 5, 2005 meeting, respondent terminated petitioner’s probationary employment, effective June 30, 2005.  Respondent notified petitioner of its action by letter dated May 6, 2005.

On May 18, 2005, through the North Bellmore Teachers’ Association (“the Association”), petitioner filed a grievance asserting that she had not been afforded due process regarding her termination in that respondent failed to provide her with 90 days notice, as required under the district’s collective bargaining agreement.  Petitioner claimed that, therefore, she had acquired tenure by estoppel.  By letter dated May 25, 2005, the superintendent denied the grievance.  It appears from the record that the Association did not pursue the grievance any further.  This appeal ensued.  On June 30, 2005, petitioner’s request for interim relief was denied.

Petitioner challenges as unjust respondent’s decision to deny her tenure, arguing that the superintendent’s reasons for recommending termination of her services were arbitrary and without rational basis.  Petitioner also claims that respondent failed to provide her with 90 days notice required under the collective bargaining agreement and, therefore, she acquired tenure by estoppel.  In her reply she seeks various forms of money damages.

Respondent asserts that the petition is not verified, as required by the Commissioner’s regulations, and also challenges the scope of petitioner’s reply.  Respondent contends that the Commissioner lacks jurisdiction to decide petitioner’s claim under the collective bargaining agreement.  Respondent maintains that it has complied with all statutory and contractual notice requirements, that its decision to deny petitioner tenure and terminate her services was in all respects proper, and that petitioner is not entitled to tenure by estoppel.

I will first address the procedural issues.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Hazeltine, 45 Ed Dept Rep 479, Decision No. 15,387; Appeal of Perez, 42 id. 71, Decision 14,779; Appeal of Nocerino, 40 id. 244, Decision No. 14,472).  The petition filed with my Office of Counsel contains the required verification.  Therefore, dismissal on that basis is unwarranted (Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662).

The scope of the reply submitted by petitioner is impermissible.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, petitioner’s demand for money damages is improper. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

I note in her letter transmitting the reply, petitioner requests that certain documents be obtained from respondent.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

On August 11, 2005, petitioner submitted additional exhibits consisting of photographs and a student email.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Petitioner did not seek prior permission to submit the documents, nor does it appear that the photographs were unavailable to petitioner at the time she submitted her petition.  Therefore, the additional exhibits have not been accepted for consideration.

Finally, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Thus, I have considered petitioner’s memorandum only to the extent that it contains legal argument.

Turning to the merits, a board of education has the unfettered right to terminate a probationary teacher’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 (James v. Bd. of Educ., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Wright, 45 Ed Dept Rep 356, Decision No. 15,347; Appeal of Jackolski, 43 id. 418, Decision No. 15,038).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioner asserts that the stated reasons for the superintendent’s recommendation were unsubstantiated and maintains that the true reason for her termination was to avoid the salary increase that tenure would require.  The superintendent states that his recommendation to deny tenure was based on evaluations, consultation with the principals that supervised petitioner and parental complaints.  Petitioner challenges the timing of the evaluations, competency of one of the evaluators and the veracity of the parental complaints.  She claims that the superintendent ignored certain positive evaluations she received as well as her accomplishments.  Although petitioner disagrees with the basis for the decision to terminate her services, she does not allege or establish that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription.  Thus, petitioner has failed to meet her burden of proof.

Petitioner’s claim regarding respondent’s compliance with the notice requirements of the collective bargaining agreement is not properly before me.  A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation (Matter of Board of Education, Commack UFSD v. Ambach, 7O NY2d 501; Appeal of Cerilli, 33 Ed Dept Rep 385, Decision No. 13,087; Appeals of Gross and Forsyth, 33 id. 222, Decision No. 13,031).  Petitioner has not alleged that the union breached its duty of fair representation.  Moreover, the record indicates that petitioner wished to go forward to the next step of the grievance process but the union apparently determined not to do so.  A decision by a union not to further pursue a grievance, by itself, does not constitute unfair representation (seeMatter of Board of Education, Commack UFSD v. Ambach, 7O NY2d 501; Matter of Margolin v. Newman, 130 AD2d 312, cert denied 71 NY2d 844; Appeals of Gross and Forsyth, 33 Ed Dept Rep 222, Decision No. 13,031).  Accordingly, the claim previously raised in the grievance procedure must be dismissed.

In view of the above disposition, I need not address the parties’ remaining claims.

THE APPEAL IS DISMISSED.

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