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Decision No. 12,842

Appeal of JUDITH SAMPSON from action of the Board of Education of the Roosevelt Union Free School District and Rodgers M. Lewis, Superintendent, regarding a negative recommendation with respect to tenure.

Decision No. 12,842

(November 25, 1992)

Liotti and Skelos, attorneys for petitioner, Thomas F. Liotti, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from action of respondents in denying her tenure at the conclusion of her probationary appointment. The appeal must be dismissed.

On July 13, 1988, the Board of Education of the Roosevelt Union Free School District voted to appoint petitioner to a probationary appointment as principal of its junior-senior high school, commencing July 18, 1988 and terminating July 17, 1991. Petitioner acted as principal throughout the 1988-1989 and 1989-1990 school years and entered the final year of her probationary period in 1990-1991.

On March 28, 1991 Superintendent Lewis informed petitioner in writing that she would not be recommended for tenure and that his negative recommendation would be presented to the board on May 8, 1991. Thereafter, petitioner demanded to know the reasons for the negative recommendation, and on April 8 petitioner made a written demand for a meeting with the school board and a separate written plea for a favorable tenure recommendation. On April 10 the superintendent denied the request for a meeting with the board, and on April 15 explained in writing his negative recommendation. On April 18 petitioner responded with a four-page letter disputing the negative recommendation.

On May 8, 1991 the board's agenda indicated as an "informational" item that the superintendent was not recommending petitioner for tenure. The minutes of that meeting indicate a similar item. It does not appear that the board actually voted on the recommendation.

Petitioner sets forth numerous objections to respondents' actions, not all of which will be discussed in this opinion. Petitioner claims that she filed a grievance under the contract between the district and the Roosevelt Administrators Association, but was denied relief to which she was entitled. She further claims that she was promised tenure on numerous occasions by both the superintendent and certain board members, that she relied on those representations and sustained injury as a result. She claims that the superintendent's negative recommendation was legally unjustified and that the board's action or failure to take action amounted to bad faith. She further claims that she was the victim of both racial and sexual discrimination and that respondent failed to file an answer in compliance with the Regulations of the Commissioner.

Respondents claim that the petition fails to state a claim because it is essentially composed of conclusionary allegations. Respondents further claim that they have complied in full with Education Law ''3012 and 3031. They allege that the collective bargaining agreement was not violated, that petitioner has not properly filed any grievance under that agreement and that in any event the agreement does not apply to tenure matters. They further deny that any promises of tenure were made.

Petitioner's objection with respect to the alleged failure to file an answer is dismissed. The record indicates that the petition was served on respondents on May 14, 1991 and that respondents served their answer on June 3, 1991, within the time allowed by 8 NYCRR '275.13. The record further indicates that on June 6, 1991, within the time allowed by 8 NYCRR '275.9, respondents' attorney mailed the answer to my Office of Counsel. However, the mailing address was incorrect and the answer was not received by the Office of Counsel until June 27, 1991. I find no basis for granting judgment to petitioner because of this minor error.

Petitioner also claims that her rights under the agreement between the school district and the Roosevelt Administrators Association were violated. Although this is not entirely clear, petitioner apparently claims that her letter of May 8, 1991 to the board president, citing alleged violation of procedural rights and of Education Law '3012, constituted a grievance under Article X of the agreement. I point out that the letter does not mention the agreement, nor does the agreement itself cover any aspect of the granting of tenure within the district. If petitioner is referring to her April 8, 1991 request for a meeting with the board of education, which also makes no reference to the agreement, I also conclude that such document was not a grievance under the agreement.

Petitioner also claims that she was "advised and informed throughout her period of employment with the Roosevelt Union Free School District that she was to receive tenure at the conclusion of the 1991 academic year . . . ." Petitioner does not identify the persons who made such alleged promises, other than to say that she was advised by Superintendent Lewis that she would be receiving tenure and that he would be recommending her for tenure. In an affidavit accompanying respondents' answer, the superintendent denies making such a promise. He states that several weeks before his letter of March 28, 1991 he advised petitioner that he would be considering her for tenure, but goes on to say: "I never stated, however, what the recommendation was going to be." Petitioner has not served a reply to contradict the superintendent. Petitioner has failed to make out a case for applying the legal doctrine of promissory estoppel under these facts.

Petitioner's primary claim is that the superintendent was unjustified in making a recommendation not to grant tenure or, in the alternative, that the board should have granted tenure. It is clear from the record in this case that the board did not take any action with respect to tenure. It is well established that, absent a recommendation by the superintendent of schools, as required by Education Law '3012, a board of education has no legal authority to grant tenure (Matter of Leviness, 18 Ed Dept Rep 213; Matter of Marino, 11 id. 336, and cases cited therein).

Petitioner's basic claim must be that respondent superintendent's failure to recommend her for tenure was arbitrary and capricious. It is well established that a school district has broad discretion with respect to the termination of a probationary appointment (Matter of James v. Bd. of Ed., 45 AD2d 1017, aff'd 37 NY2d 891; Matter of Butler v. Allen et al, 29 AD2d 799). Unless there is proof that a probationary appointee was denied tenure for constitutionally impermissible reasons, such as in retaliation for the exercise of constitutionally protected rights or in violation of statutory proscriptions, a district has broad discretion in determining whether or not to confer tenure. The burden of proving that a dismissal was for an impermissible reason rests with petitioner (Mount Healthy City Bd. of Ed. v. Doyle, 429 US 274; Appeal of Young, 26 Ed Dept Rep 242).

Petitioner argues that she received favorable evaluations for the 1988-1989 and 1989-1990 school years, and she cites many accomplishments she claims during her service as principal. Respondents, however, point out a number of shortcomings which were reported in those same evaluations and focus on petitioner's inability to get along with other staff and her inability to deal with constructive criticism. Respondents also point out that many of the programs for which petitioner claims credit were either already in place when she began, or are more properly the result of the efforts of many persons.

Petitioner alleges that she became "unwittingly embroiled in a controversy" with the president of the board and alleges that the board president ordered the superintendent to make a negative recommendation as to tenure. In his affidavit, the superintendent categorically denies that claim, and, again, petitioner has not served a reply to rebut the position of the superintendent. There is nothing in the record which even serves to describe this alleged "controversy," much less support petitioner's claim. Respondents' position, by contrast, is fully set forth and supports the superintendent's decision not to recommend petitioner for tenure.

Finally, petitioner alleges that she has been unfairly and improperly discriminated against because of her race (black) and her sex. No evidence is offered in the petition or amended petition in support of these statements. In contrast, the superintendent points out that he is also black, as is each member of the board of education. He further points out that with respect to alleged sex discrimination, his Assistant Superintendent for Instruction and Curriculum is a woman that he recommended for tenure; that since his appointment as superintendent he has recommended nine administrators for tenure, seven of whom are women; and that since he has become superintendent he has recommended the appointment of five coordinators, all of whom are women. Again, petitioner has not served a reply or in any way supported her charges.

Based upon the record, I cannot say that the decision of Superintendent Lewis was arbitrary or capricious.