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Decision No. 14,203

Appeal of MARION KELLY from action of the Board of Education of the City School District of the City of New York regarding termination of services of a probationary principal.

Decision No. 14,203

(August 25, 1999)


Paul A. Crotty, Esq., Corporation Counsel, attorney for respondent, William P. Farley, Esq., of counsel

MILLS, Commissioner--.Petitioner challenges the determination of the Board of Education of the City School District of the City of New York ("respondent") that she unsuccessfully completed probationary service as principal at P.S. 61 in Manhattan, and the unsatisfactory performance rating underlying that determination. Petitioner seeks reversal of respondent’s determination, reinstatement to a tenured principal’s position and placement in an elementary or intermediate school. Petitioner also seeks reversal of her unsatisfactory performance rating in 1994-95 and removal from her file of all documents used to support that rating, back pay, and assurance against retaliatory acts by respondent. On May 21, 1997, I denied petitioner's request for interim relief. The appeal must be dismissed.

Petitioner served a probationary term as principal at P.S. 61 from January 7, 1990 until January 6, 1995, the date when her services were terminated. During the probationary period, the superintendent who preceded Superintendent Collazo-Baker, the current superintendent of Community School District One, rated petitioner unsatisfactory for the 1993-94 school year. Petitioner grieved this rating, which was reversed on June 10, 1996. On July 20, 1994, Ms. Collazo-Baker was appointed superintendent. On August 15, 1994, she met with petitioner and offered to extend her probationary period through the end of the 1994-95 school year, to afford more time to evaluate petitioner and address concerns raised by parents. Petitioner refused to extend her probationary period. Accordingly, the new superintendent evaluated petitioner in the remaining time available in the probationary period, August 29, 1994 to January 6, 1995.

On December 23, 1994, Superintendent Callazo-Baker informed petitioner by letter that she had unsuccessfully completed probation. That letter was revised on January 3, 1995 to clarify that petitioner’s services were terminated, effective January 6, 1995. Petitioner was advised that under the collective bargaining agreement between the Board of Education and the Council of Supervisors and Administrators of the City of New York, her union, she was entitled to the review procedures prescribed in the bylaws of the Board of Education.

Petitioner sought such review. On April 26, 1996, a hearing was held before a three-member Chancellor's Committee. The Committee concurred with the superintendent's decision. The Chancellor reviewed the report of the Committee, and by letter dated December 10, 1996, affirmed the denial of a certificate of probationary completion to petitioner. This appeal ensued.

Petitioner contends that her unsatisfactory rating in the 1994-95 school year and the denial of her certificate of probationary completion was arbitrary and capricious. Petitioner contends that the decision was made in bad faith. Petitioner also contends that she was the subject of prejudice. Finally, petitioner contends that respondent violated its own bylaws, regulations and procedures for evaluating her performance in the 1994-95 school year, and for reviewing the decision not to approve her certificate of probationary completion.

Respondent contends that petitioner’s appeal is untimely and that petitioner has failed to meet her burden of proof. Respondent contends that it acted reasonably and in good faith when it terminated petitioner's probationary position and that its actions were in all respects legal, proper, reasonable, and consistent with law.

Before reaching the merits, I will address several procedural issues. Respondent claims that the appeal is untimely. Petitioner claims that the appeal was delayed because she did not receive the Chancellor's determination until January 30, 1997, because her original attempt to file an appeal was returned to her by my Office of Counsel, and because she could not afford an attorney.

An appeal to the Commissioner must be instituted within 30 days from the making of the decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner is appealing the decision of the Chancellor, dated December 10, 1996. Petitioner claims that her appeal was delayed because she did not receive that notice until her union representative received it on January 30, 1997. While petitioner attempted to commence a Commissioner's appeal through a letter dated February 23, 1997, it was returned to petitioner on March 18, 1997 for failure to meet a number of requirements of the Commissioner's regulations, including personal service and verification of the petition. On April 28, 1997, petitioner commenced this appeal by service on respondent.

The appeal is untimely. Even if I accept that petitioner received the Chancellor's determination on January 30, 1997, the appeal is still untimely, having been commenced on April 28, 1997, 88 days after January 30, 1997. The fact that petitioner attempted to commence the appeal by letter dated February 23, 1997 is not an adequate excuse; nor is the fact that petitioner could not afford legal representation, and had to proceed pro se. Ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal, except in unusual circumstances (Appeal of T.B., 35 Ed Dept Rep 408, Decision No. 13,586), and I find no unusual circumstances in this case.

Petitioner submits a memorandum of law, which contains new assertions that are not part of the pleadings. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253, Decision No. 13301). Accordingly, while I have reviewed the memorandum of law, I have not considered the portions of it that contain new allegations. Petitioner also submits a letter dated September 13, 1998, with attachments. This correspondence was not submitted in accordance with "276.5 of the Commissioner's regulations and therefore is not part of the record and will not be considered in this appeal.

Even if this appeal were not dismissed for untimeliness, it would be dismissed on the merits. Petitioner claims that Superintendent Callazo-Baker did not follow respondent's evaluation procedures for the period in which she was rated unsatisfactory, August 29, 1994 to January 6, 1995. Petitioner states that the superintendent did not meet with her to establish goals and specific objectives for her performance in the 1994-1995 school year, as required by respondent's procedures for rating its employees. In support of her claim, petitioner submits selected pages (pages ii, 4, 6-10, 27, and 34-36) from a document entitled, "Regulations and Procedures for Pedagogical Ratings, Line of Duty Accidents, Corporal Punishment, Ineligible List," published by respondent's Division of Human Resources. Petitioner has not provided the entire document so that the selected pages could be considered within the context of the entire performance evaluation scheme, and has not provided other documentary evidence, which would be pertinent to proving her claim, such as the applicable collective bargaining agreement and respondent's bylaws. Moreover, respondent denies that it violated its procedures. Based on this fragmentary record, I am unable to determine that respondent's procedures for performance evaluations were violated. In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975). Petitioner has not met this burden.

Petitioner also states that her procedural rights were violated because respondent failed to follow its bylaws. Petitioner states that respondent's bylaws require that appeals from unsatisfactory ratings be held within no more than one year. Petitioner claims that she received the unsatisfactory rating on March 3, 1995, but was not afforded a hearing until April 25, 1996, more than one year later. Respondent denies that petitioner's procedural rights were violated. In view of petitioner’s failure to submit a copy of respondent's bylaws, I have no basis to determine whether such bylaws were violated. Petitioner has not established the facts upon which she seeks relief, as required by 8 NYCRR "275.10. In any event, even if petitioner did establish that respondent's bylaws were violated because the hearing was held more than one year after receiving the unsatisfactory rating, this error is deminimus and did not result in a deprivation of a substantial right. Such a violation would not by itself establish a right to relief (Sorell v. Board of Education of the City School District of the City of New York, 168 AD2d 453).

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). This includes the right to terminate the employment of a probationary teacher at any time and for any reason, unless the teacher establishes that the termination was for a constitutional impermissible purpose, violative of a statute, or done in bad faith (Education Law "2573([1][a]; Frasier v. Board of Education of the City School District of the City of New York, 71 NY2d 763; James v. Board of Education of Central School District No. 1 of the Towns of Orangetown and Clarkstown, supra).

Petitioner alleges that she was the subject of "prejudicial intentions" and that less competent Caucasian personnel filled the principal's position after she was terminated. However, other than baldly asserting discrimination, petitioner has not established in the record before me that respondent discriminated against her. The claim must fail because petitioner has failed to meet the burden of establishing the facts upon which she seeks relief, as required by 8 NYCRR "275.10.

Petitioner also contends that respondent acted in bad faith, and seeks to prove this by showing that the reasons that respondent gave for finding her unsuccessful were arbitrary and capricious. Based on the record before me, I do not find that petitioner has sustained her burden of proving bad faith on respondent’s part. Between August 29, 1994 and January 6, 1995, petitioner’s performance was evaluated through site visits by respondent's superintendent and deputy superintendent. The superintendent and deputy superintendent also met with petitioner to discuss performance problems during this period. The pedagogical supervisory personnel report for the period August 29, 1994 through January 6, 1995, which formed the basis for the determination that petitioner failed probation, found petitioner's performance unsatisfactory in the following areas: management of fiscal matters, providing a safe and secure environment for students, establishing and maintaining good relations with parents and staff, and providing an acceptable instructional program. Respondent's determination that petitioner's performance was unsatisfactory is supported by the record. Also, contrary to petitioner's assertion of bad faith, respondent provided her with a full opportunity to dispute its decision, including a hearing.

Petitioner has failed to establish in the record before me that respondent acted in bad faith or otherwise discriminated against her. Respondent had a legitimate, nondiscriminatory reason for denying petitioner a certificate of probationary completion, it found her performance unsatisfactory.

I have reviewed petitioner's remaining contentions and find them without merit.