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Decision No. 15,908

Appeal of CYNTHIA HINSON from action of the Board of Education of the Valhalla Union Free School District regarding termination of a probationary appointment.

Decision No. 15,908

(March 31, 2009)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the termination of her probationary appointment and denial of tenure by the Board of Education of the Valhalla Union Free School District (“respondent” or “board”).  The appeal must be dismissed.

Petitioner served as a probationary elementary grades teacher in respondent’s district during the 2006-2007 school year.  By letter dated June 22, 2007, the superintendent advised petitioner that, at respondent’s July 24, 2007 board meeting, she would recommend termination of petitioner’s services as a probationary teacher.  The letter was hand-delivered to petitioner on the same day. 

In a letter to the board dated July 16, 2007, petitioner set forth her accomplishments and also addressed an issue that was the subject of a prior meeting between the superintendent, petitioner and a union representative on June 12, 2007.  At that meeting, the superintendent questioned petitioner regarding her practice of spraying students’ faces with water from a spray bottle to “help them wake up and become engaged in classroom instruction.”  In a July 17, 2007 memorandum to the board, the superintendent indicated that petitioner’s use of the water spray had not been discussed with her principal, constituted poor judgment, and resulted in parental complaints.  The superintendent stated that this was the reason for her recommendation to terminate petitioner’s services.  She also noted that petitioner had not requested a statement of reasons for the superintendent’s recommendation and that the time for such request had expired.

On July 24, 2007, the board terminated petitioner’s probationary appointment, effective August 31, 2007, in accordance with the superintendent’s recommendation.  By complaint verified on July 29, 2007, and filed with the New York State Division of Human Rights, petitioner challenged the board’s action, alleging discrimination based on race and sex.  The district clerk provided petitioner written notice of the board’s July 24, 2007 determination by letter dated August 15, 2007, and this appeal ensued.  On September 11, 2007, petitioner’s request for interim relief was denied.

Petitioner contends that the board failed to provide her appropriate due process prior to terminating her probationary appointment because she was not provided with a statement of reasons for the superintendent’s recommendation to which she could respond.  Petitioner further asserts that such termination constitutes discrimination based upon race and gender.  Petitioner also claims that the board did not appropriately respond to community concerns regarding the termination of her appointment.  She seeks reinstatement and back pay.

Respondent maintains that petitioner fails to state a claim upon which relief may be granted.  Respondent also asserts that I lack jurisdiction over petitioner’s discrimination claim.  Finally, respondent challenges the scope of petitioner’s reply papers. 

Initially, I must address petitioner’s reply and respondent’s jurisdictional assertion.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

With respect to the jurisdictional issue, the prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Smolen, 43 id. 296, Decision No. 15,000).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).

Prior to initiating this appeal, petitioner filed a complaint with the New York State Division of Human Rights, alleging race and gender discrimination by respondent.  The complaint identifies the dates of the alleged discrimination as June 22, 2007 and July 24, 2007, and incorporates petitioner’s July 16, 2007 letter to respondent.  That complaint relates to the same facts and asserts the same discrimination claim that petitioner asserts in this appeal.  Having chosen that forum to litigate her discrimination claim, petitioner has made an election of remedies and may not re-litigate the same issue in a proceeding pursuant to Education Law §310 (Appeal of E.P. and D.P., 46 Ed Dept Rep 390, Decision No. 15,542).  Petitioner’s discrimination claim, therefore, is dismissed.   

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner’s claim that the board’s termination of her probationary appointment was improper because she was not provided reasons for the superintendent’s recommendation to which she could respond lacks merit.  Education Law §3031(a) requires that a probationary teacher receive notice of a recommendation that his or her services be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered.  That section further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation.  Such teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting (Education Law §3031[a]). 

Petitioner received notice of the superintendent’s recommendation on June 22, 2007, 32 days before the July 24, 2007 board meeting, in compliance with §3031(a).  While it appears that petitioner expressed dissatisfaction with the recommendation, there is nothing in the record demonstrating that petitioner ever made a request for a statement of reasons for the superintendent’s recommendation in writing, as required.  Consequently, respondent’s failure to provide petitioner with a written statement of reasons for the superintendent’s recommendation does not warrant annulment of it’s decision to terminate her probationary appointment (Appeal of Madden-Lynch, 31 Ed Dept Rep 411, Decision No. 12,683; Matter of Norden, 23 id. 94, Decision No. 11,147). 

With respect to petitioner’s complaint that respondent failed to address community concerns regarding termination of her services, petitioner sets forth no statutory requirement that the board do so.

A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Education Law §3012[1][b]; Appeal of McBeth, 43 Ed Dept Rep 52, Decision No. 14,913).  On this record, petitioner has failed to establish any basis on which to annul respondent’s action.

THE APPEAL IS DISMISSED.

END OF FILE