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Decision No. 14,323

Appeal of MARIA FRANKIS from action of the Board of Education of the Oyster Bay-East Norwich Central School District and George J. Chesterton, Superintendent of Schools, regarding denial of tenure.

Decision No. 14,323

(March 13, 2000)

Anthony D. Denaro, P.C., attorney for petitioner, Steven E. Shumer, Esq., of counsel

L'Abbate, Balkan, Colavita & Contini, L.L.P., attorneys for respondent, Domingo R. Gallardo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Oyster Bay-East Norwich Central School District ("respondent board") to deny her tenure based upon the recommendation of its superintendent of schools, George J. Chesterton ("respondent superintendent"). The appeal must be dismissed.

Petitioner was employed as a certified guidance counselor in respondents' district for approximately three years assigned to the James H. Vernon Middle School. On June 15, 1999, respondent board accepted respondent superintendent’s recommendation that petitioner not be appointed to tenure. Petitioner commenced this appeal on September 2, 1999. On September 23, 1999, petitioner's request to stay her termination pending the final determination of her appeal was denied.

Petitioner contends that the superintendent's recommendation and the board's determination are arbitrary and capricious in view of her "spotless employment record" and because respondents' actions are allegedly and improperly based upon consideration of petitioner's absence on paid leave for extended illness in May and June 1998 and her disclosure to administrators and staff in April 1999 of her pregnancy.

Respondents generally deny petitioner's allegations and contend that petitioner was properly and appropriately denied tenure based upon the rational basis that petitioner exercised poor judgment and lacked initiative. Respondents also contend that the appeal is untimely.

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown (8 NYCRR "275.16). Petitioner did not commence her appeal until September 2, 1999, which is more than 30 days from respondent board's June 15, 1999 determination to deny petitioner tenure. Since petitioner offers no information to establish good cause to excuse her delay in commencing this appeal, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. A board of education has broad discretion to terminate the employment of a teacher during a probationary period (James v. Bd. of Educ. 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 constitutionally impermissible purpose, violative of a statute, or done in bad faith (Education Law "2573[1][a]); Frasier v. Bd. of Educ., City School District of the City of New York, 71 NY2d 763; James v. Bd. of Educ., Central School District No.1 of the Towns of Orangetown and Clarkstown, supra). 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). Upon my review of the record, I find that petitioner has not met this burden.

Petitioner's allegation that the superintendent's recommendation and the board's determination to deny her tenure are improperly based upon consideration of her absence on paid leave at the psychiatric department of the South Nassau Hospital in May and June 1998, and/or the disclosure of her pregnancy in April 1999, is entirely speculative and unsupported by anything in the record. Petitioner's paid leave occurred under the administration of a prior superintendent of schools, and respondent superintendent submits an affidavit in which he states that he was unaware of the nature of petitioner's illness during her paid leave in May and June 1998, including whether it was physical or psychological, or how serious it was. The superintendent also states that petitioner's pregnancy was not part of his consideration at the time he made his tenure recommendation to respondent board.

The superintendent further states in his affidavit that the two principal reasons for his recommendation against tenure are petitioner's "exercise of poor judgment and her lack of initiative". The superintendent describes several incidents that he considered in deciding not to recommend tenure for petitioner, including: petitioner's inadequate contact with students, including counseling; her failure to timely provide information needed to complete students' schedules; her unfamiliarity with the district's "Atlantis Program"; her inability to describe next year's schedule at a Committee on Special Education (CSE) meeting regarding an eighth grade student; her lack of awareness of her responsibilities relating to a collaborative grant; and her inability to provide requested information on a CSE meeting. In addition, the superintendent states that he had received five or six complaints from parents about petitioner over the course of the school year. These complaints included allegations that petitioner cried during a parent-teacher conference; that petitioner advised a parent who requested a conference with petitioner and the child's teacher that the teacher did not want to meet with the parent; that petitioner was "confrontational" when criticized for being late for a meeting with a student and in challenging the superintendent's rights to observe her in connection with his tenure recommendation; and that petitioner was late for a meeting with a student because she left the premises for food rather than obtaining it from the school cafeteria.

Although petitioner disputes the superintendent's assertions and speculates that her termination was the result of a "personal vendetta/personality conflict/discrimination" or a "witch hunt", petitioner has failed to establish in the record before me that respondents' action in denying her tenure was for a constitutionally impermissible purpose, violative of statute, or done in bad faith.

Upon the record before me, I find that respondents had a rational and legitimate basis to deny tenure to petitioner and terminate her services (Appeal of Szymkowiak, 36 Ed Dept Rep 204, Decision No. 13,702).