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Decision No. 14,544

Appeal of KEITH A. WYNNE from action of the Board of Education of the Union Free School District of the Tarrytowns regarding termination of a probationary teacher.

Decision No. 14,544

(March 14, 2001)

Keane & Beane, PC, attorneys for respondent, Stephanie M. Roebuck and Ronald A. Longo, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges his dismissal by the Board of Education of the Union Free School District of the Tarrytowns ("respondent"). The appeal must be dismissed.

On March 9, 2000, respondent appointed petitioner to a probationary position as a third grade teacher at the W.L. Morse Elementary School. Petitioner took over a third grade class from a substitute teacher who had been covering the class for the original assigned teacher. Shortly after petitioner began teaching, the school"s principal, Joseph Carmody, states that he began to receive complaints from both students and parents about the harsh manner in which petitioner conducted himself. On June 7, 2000, Mr. Carmody made a formal observation of petitioner teaching a science class, and prepared a written report. On June 12, petitioner and Mr. Carmody had a post-observation conference, at which Mr. Carmody discussed his observations and informed petitioner that his performance was not satisfactory.

On or about June 15, Mr. Carmody prepared an annual evaluation of petitioner which he discussed with petitioner on June 16. At that time, Mr. Carmody suggested that petitioner might consider resigning his position, rather than being dismissed. On June 21, petitioner signed a letter of resignation, but, on July 6 delivered a letter rescinding his resignation to respondent"s Superintendent, Dr. Donald Kusel. Dr. Kusel responded with a letter dated July 18, informing petitioner that respondent would act at its August 31, 2000 meeting on his recommendation to terminate petitioner"s employment.

Petitioner then sent a letter dated August 18, requesting "the opportunity to defend myself in a hearing before the school board and administration of The Public Schools of the Tarrytowns." At the board meeting of August 31, petitioner appeared and spoke at length during the public comment session, at which he was allowed to present a petition signed by certain parents of his students. Other community members also spoke on petitioner"s behalf. Thereafter, respondent voted to terminate petitioner"s employment. This appeal ensued.

Petitioner alleges that he was terminated unfairly and without being given a pre-termination hearing. He further argues that the district"s collective bargaining agreement provides that probationary teachers are to be formally observed a minimum of three times per year, while he was only observed once. He further alleges that after his termination Dr. Kusel informed the superintendent of a nearby school district that he had been dismissed as "an unfit teacher." Petitioner asks that I annul respondent"s decision, and "expedite" his request for a hearing.

Respondent generally denies any wrongdoing, and affirmatively states that it has complied in all respects with relevant provisions of the Education Law. With respect to petitioner's claim of a violation of the collective bargaining agreement, respondent points out that neither petitioner nor the district"s teachers" association submitted a grievance.

The appeal must be dismissed. The general rules with respect to the dismissal of an untenured, probationary teacher are well summarized in Matter of Strax v. Rockland County BOCES (257 AD2d 578):

It is well established that a board of education has an unfettered right to terminate the employment of a teacher or an administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription (see, Matter of Girards v. Bd. of Educ., 40 NY2d 1020; seealso, James v. Bd. of Educ., 37 NY2d 891, 892; Matter of Bergstein v. Bd. of Educ., 34 NY2d 318, 322).

On the record before me, petitioner has neither alleged nor proven that respondent terminated his probationary appointment for a constitutionally impermissible purpose. In addition, petitioner does not claim that respondent failed to comply with the procedural requirements of Education Law "3031 or otherwise acted in violation of a statutory proscription (except to the extent he argues that "3031 requires a hearing). Indeed, petitioner admits that he received Dr. Kusel"s July 18 letter on July 28, 2000, more than 30 days prior to the board"s August 31 meeting. I therefore conclude that petitioner"s termination was permissible, and that he had no legal right to a hearing with respect to his dismissal (Amnawah v. Bd. of Educ., 266 AD2d 455).

Petitioner argues that this termination was illegal because he was not observed a minimum of three times during his period of employment, as required by the collective bargaining agreement. Respondent acknowledges that only one formal observation was made, and alleges that it has been the practice of the district, with the acquiescence of the teachers" association, to pro-rate the number of evaluations depending upon the commencement date of a teacher"s employment. As respondent also points out, if petitioner believed that his contractual rights were violated, he had the right to file a grievance under the collective bargaining agreement, but did not do so. As a result, petitioner has failed to exhaust his administrative remedies in this respect. In any event, even assuming a contractual violation, it has been held under similar circumstances that the failure to perform required evaluations does not create a property interest which would prevent adverse action (see, Emma v. Schenectady City School District, 28 F.Supp. 2d 711, at pp. 719-722; aff"d, 199 F.3d 1322; and cases cited therein).

Finally, to the extent that petitioner also seeks a name-clearing hearing, I find no such right based on these facts. In Appeal of Federico (35 Ed Dept Rep 269, Decision No. 13,538), the rule with respect to such hearings is concisely stated at p. 273:

Petitioner Federico also seeks a name-clearing hearing in this matter. There is, however, no basis to grant his request. A probationary teacher serves at will and is not entitled to a hearing unless it can be shown that the teacher"s dismissal was for a constitutionally impermissible reason (Castro v. Bd. of Ed., 777 F.Supp. 113; Garbo v. Bd. of Ed., 61 AD2d 983, 402 NYS2d 606; Bergstein v. Bd. of Ed., 42 AD2d 591, 344 NYS2d 732; Appeal of Madden-Lynch, 31 Ed Dept Rep 411) or that the reasons given have a stigmatizing effect upon the employee and the employer disseminates those reasons (Lentlie v. Egan, 61 NY2d 874, 474 NYS2d 467).

On the record before me, there is neither a claim nor any proof of dismissal for a constitutionally impermissible reason. Although petitioner could have requested a formal, written statement giving the reasons for his termination pursuant to Education Law "3031(a), there is no indication that he did so, and the only reasons indicated in the record for his termination are those found in the report of formal observation and the final evaluation report. While those documents are critical of petitioner"s performance as a teacher, they also contain a number of very positive comments. The critical comments deal with petitioner"s "overbearing and harsh management style" in the classroom, which administrators found inappropriate at the elementary school level. The final evaluation notes that petitioner "has enrolled in a graduate course of study that will enhance his instructional effectiveness." I do not consider these remarks "stigmatizing."

Petitioner claimed originally that, when telephoned by an administrator in a nearby school district, Superintendent Kusel informed the caller that petitioner had been dismissed because he was "an unfit teacher." In an affidavit attached to respondent"s answer, Dr. Kusel flatly denies any such conversation with the superintendent or any other representative of that nearby district. Faced with that denial, petitioner has attempted to amend his claim, improperly, by inserting an allegation in his reply that it was the Assistant Superintendent, Dr. Heiferman, rather than Dr. Kusel, who spoke to the other district"s superintendent. This is clearly in violation of the procedural rules with respect to a reply (8 NYCRR "275.14), and I will disregard this claim. As a result, there is no evidence that any matter with respect to petitioner"s termination has been disseminated to any other school district or any other person.

In view of this disposition, I will not discuss the other contentions of the parties, which I find without merit.