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Decision No. 14,245

Appeal of VINCENZA MENNELLA from action of the Board of Education of the Uniondale Union Free School District regarding termination of a probationary appointment.

Decision No. 14,245

(November 4, 1999)

Rains & Pogrebin, P.C., attorneys for respondent, Howard M. Miller, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Uniondale Union Free School District ("respondent") to terminate her services as a probationary administrator. The appeal must be dismissed.

Petitioner was given a probationary appointment as Dean of Students in respondent’s district, effective September 1, 1998. In January 1999, petitioner received a written evaluation that rated her performance in four categories. In each category, petitioner’s rating was either unsatisfactory or in need of improvement. By letter dated March 23, 1999, respondent’s Superintendent of Schools ("superintendent") notified petitioner that she would recommend to respondent at its May 4, 1999 meeting that petitioner’s employment be discontinued. By letter the following day, petitioner requested the reasons for the superintendent’s proposed recommendation. By letter dated March 31, 1999, the superintendent informed petitioner that her recommendation was based on petitioner’s working relationships with other administrative employees; failure to timely complete classroom observations of first year teachers within her departments; and "resistance to District protocol … ". Apparently respondent voted at its May 4, 1999 meeting to terminate petitioner’s services, effective June 30, 1999. Petitioner was informed of this decision by letter dated May 6, 1999. This appeal ensued. Petitioner’s request for interim relief was denied on June 9, 1999.

Although petitioner contends that respondent’s decision to terminate her employment is arbitrary and capricious, she does not clearly articulate the basis for that assertion. She requests, however, that I reinstate her to her former position as Dean of Students or, alternatively, order respondent to pay her salary for the remaining two years of her probationary contract.

Respondent contends that its decision to terminate petitioner’s employment was proper. In addition, in its memorandum of law in opposition to petitioner’s stay request, respondent alleges that I lack jurisdiction over this matter because petitioner has raised the same claims in two pending grievances. Respondent also requests that I disregard petitioner’s reply papers because they were improperly served on the district clerk, rather than respondent’s counsel, as required by 8 NYCRR "275.8, and include new assertions and exhibits.

Before addressing the merits, I must address a procedural matter. On July 1, 1999 my Office of Counsel received a request from petitioner to file as a supplemental exhibit her June 1999 evaluation which she received after she served her petition. Respondent has not opposed petitioner’s application. Pursuant to "276.5 of the Commissioner’s regulations, the Commissioner may permit the filing of additional exhibits or papers. I will grant petitioner’s application in light of the fact that she received the evaluation after she filed her petition.

Turning to respondent’s objections to petitioner’s reply, "275.8 of the Commissioner’s regulations requires a party to serve all pleadings and papers subsequent to the petition on the adverse party’s counsel. Although petitioner’s service of her reply on the district clerk was improper, I will excuse petitioner’s mistake because she is not represented by counsel and respondent was not prejudiced thereby. However, the purpose of a reply is to respond to procedural defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (8 NYCRR "" 275.3 and 275.14; Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Foshee, 38 id. 346, Decision No. 14,051). Accordingly, I will not consider those portions of petitioner’s reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in respondent’s answer.

It is well established that 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 (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Shovers, 34 Ed Dept Rep 388, Decision No. 13,354; Appeal of Henderson, 34 id. 14, Decision No. 13,217). Although the record reflects that petitioner filed two grievances related to her employment with respondent, it appears that the grievances do not raise the same issues raised in this appeal. In her first grievance, petitioner challenges her January 1999 evaluation. Although it is not entirely clear from the record, it appears that in her second grievance, petitioner claims that the superintendent’s March 31, 1999 letter informing her of the reasons for her recommendation to the board violated petitioner’s contract rights. Although this appeal raises related issues, it does not directly challenge petitioner’s January 1999 evaluation or the superintendent’s March 31, 1999 letter, but rather, contests respondent's decision to terminate petitioner’s services. Indeed, the record reflects that both grievances were filed before respondent voted to terminate petitioner’s services. Because there is no proof in the record that petitioner grieved respondent’s May 4, 1999 decision to terminate her services, I decline to dismiss the appeal on jurisdictional grounds (Appeal of Czajkowski, 34 Ed Dept Rep 589, Decision No. 13,418).

Turning to the merits, a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period (Education Law "3012[1][a] & [b]) and dismissal of a probationary employee will not be set aside unless the employee establishes that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription (Matter of Girards v. Board of Education, 40 NY2d 1020; James v. Bd. of Educ. of Central School District No. 1 of Towns of Orangetown & Clarkson, 37 NY2d 891; Matter of Strax, 257 AD2d 578;, Appeal of Federico, 35 Ed Dept Rep 269, Decision No. 13,538).

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Shufelt, 38 Ed Dept Rep 274, Decision No. 14,032). The record reflects that, in accordance with Education Law "3031, the superintendent informed petitioner at least 30 days in advance of the May 4, 1999 board meeting that she intended to recommend the termination of petitioner’s services and provided petitioner with the reasons for that recommendation upon her request. Petitioner has failed to establish that respondent violated this or any other statutory proscription in terminating her services as a probationary administrator. Nor does petitioner articulate any constitutional violation. In the absence of a substantiated statutory or constitutional violation, respondent clearly had the authority to terminate petitioner's services as probationary administrator (Matter of Strax, supra). I note that the numerous memoranda in the record issued by petitioner to various district administrators during her tenure as Dean of Students amply demonstrate respondent’s concern over petitioner’s relationships with her colleagues. In short, there is no basis in the record for me to conclude that respondent’s decision to terminate petitioner’s employment was improper.