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Decision No. 12,624

Appeal of ELIZABETH VIENIE, from action of the Board of Education of Community School District No. 17 of the City School District of the City of New York, regarding the termination of probationary service.

Decision No. 12,624

(December 30, 1991)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Paul Marks, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination to discontinue petitioner's service as a probationary teacher of English at Intermediate School 391, Brooklyn, New York. The appeal must be dismissed.

Petitioner received a three-year probationary appointment as teacher of English J.H.S. at Intermediate School 391 commencing on September 3, 1986. During the course of the first year of the probationary appointment, petitioner's supervisors determined that her teaching performance was unsatisfactory. Accordingly, on May 5, 1987, the principal of I.S. 391 recommended discontinuing petitioner's service, and on June 25, 1987, the superintendent of Community School District No. 17 (the "District") also recommended discontinuing her probationary service. Both recommendations appear on form OP-11B, "Report on Probationary Service of Pedagogical Employee", which states the reasons for the termination. Petitioner received a copy of this form on June 23, 1987. On November 30, 1987, the Board of Education of the District voted to terminate petitioner's probationary service effective that date.

Petitioner exercised her right under section 5.3.4 of the by-laws of the New York City Board of Education to review the District's determination. On March 10, 1988, a hearing was held before a three-member Chancellor's Committee. By letter dated May 12, 1988, the president of the Board of Education of Community School District No. 17 informed petitioner that the board had received the recommendations of the Chancellor's Committee and had decided to reaffirm its previous action.

Respondent contends that the petition should be dismissed on a variety of procedural grounds. Respondent first contends that the petition was improperly served on the school district. Section 275.8 of the Regulations of the Commissioner of Education requires that the petition be personally served upon a school district by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of the school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. In this case, petitioner mailed the petition to the principal of P.S. 189, another school within respondent district, with instructions that it be brought to the attention of petitioner's supervisor, the principal of I.S. 391. To meet the requirements of 8 NYCRR '275.8, petitioner should have personally served the petition on the school district. Therefore, the appeal is dismissed for improper service.

Respondent also claims that the appeal must be dismissed as untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner of Education be instituted within thirty days from the making of the decision or the performance of the act complained of. Petitioner commenced this appeal 32 months after the District terminated her probationary appointment, and 26 months after respondent's president reaffirmed that decision. Petitioner offers no explanation for this lengthy delay. The appeal must therefore be dismissed as untimely.

Petitioner seeks to bring a class appeal. An appeal to the Commissioner may be maintained on behalf of a class where the class is so numerous that joinder of all members is impractical and where all questions of fact and law are common to all members of the class (8 NYCRR '275.2[a]). However, in this case, petitioner does not define in an intelligible manner the class she claims to represent and does not state the number of individuals in that class. Moreover, petitioner's allegations are so vague and incomprehensible that it would be impossible to determine whether common questions of law and fact exist. When a petitioner fails to identify the number of individuals the petitioner seeks to represent or the common questions of law and fact, a class appeal will not be permitted (Appeal of Maynard, 28 Ed Dept Rep 198). This appeal may not be maintained as a class appeal.

Respondent also contends that the petition does not meet the requirements of section 275.10 of the Regulations of the Commissioner of Education, which provides:

The petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

The following paragraph at page 11 of the petition is representative of the wording throughout the petition:

65, 80, KKKa, KKKb

35. Part KKK pp. 95. Selecting principle at work unless Board of Education had it on its agenda of respondents who would not have taken notice they made such fallacious ratings and discontinuance of those suggesting meanings beyond the description of tacked-on moral to symbols was presented at lessons as there was no competition present of the attempt to become a standard-making body. For instance, respondents did not ensure suitable alternatives to the purpose respondents' criticisms had, - little more than forms of self-expression and doubt to suit students' needs.

Although a liberal interpretation of 8 NYCRR '275.10 is appropriate when the petitioner is not represented by counsel and when there is no evidence of prejudice to the opposing party (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519), in this case I find that respondent is prejudiced by a petition that is unintelligible. The nature of petitioner's allegations simply do not provide respondent with notice of the claims against it or a meaningful opportunity to frame a response. Pursuant to 8 NYCRR '275.10, the appeal is dismissed because the petition is not sufficiently clear to advise respondent of the nature of petitioner's claims.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The services of a probationary teacher may be discontinued at any time during the probationary period (Education Law '2573[1][a]). A board of education has broad discretion to terminate the employment of a teacher during a probationary period (James v. Board of Education of Central School District No. 1 of the Towns of Orangetown and Clarkstown, 45 AD2d 1017, aff'd 37 NY2d 891 [1975]). However, the dismissal of a probationary teacher may be set aside if the teacher establishes that the board terminated service for a constitutionally impermissible purpose or in violation of a statutory proscription (James, supra). Petitioner alleges that she was discriminated against on the basis of gender, but provides no factual basis to substantiate the charge. In appeals to the Commissioner, it is the burden of the petitioner to establish facts upon which the claim for relief is founded (Appeal of Negrin, 29 Ed Dept Rep 484). Petitioner has not met this burden. There is no evidence in this record that petitioner's gender had any bearing on her termination.

In any event, the record establishes that petitioner's probationary service was discontinued because of unsatisfactory performance in the classroom. Between September 22, 1986 and June 11, 1987, supervisors observed petitioner's classroom performance on 14 occasions and found it unsatisfactory each time. Teaching deficiencies centered on an inability to control the students in her classroom. The observation reports noted that the majority of petitioner's students walked in and out of the classroom at will, spoke to each other at will, played cards without intervention, and called out without reprimand. The "Report on Probationary Service of Pedagogical Employee", which recommended discontinuing petitioner's probationary service, rated petitioner unsatisfactory in the following areas: control of class, maintenance of a wholesome classroom atmosphere, effective use of appropriate methods and techniques, ability to maintain pupil participation in the class and school program, sympathetic understanding of children, evidence of professional growth, and attention to routine matters. Petitioner's unsatisfactory performance during the probationary period is amply supported by the record. Respondent had a legitimate, nondiscriminatory reason for petitioner's termination, and petitioner's discrimination claim must fail.