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Decision No. 15,010

Appeal of ELLEN DILLON from action of the Board of Education of the City School District of the City of Oswego regarding a teaching assignment.


Decision No. 15,010 

(January 8, 2004)


James R. Sandner, Esq., attorney for petitioner, James D. Bilik, Sr., Esq., of counsel


Michael J. Stanley, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner appeals her teaching assignment by the Board of Education of the Oswego City School District ("respondent").  The appeal must be dismissed.

Petitioner is a tenured physical education teacher in the Oswego City School District.  Respondent appointed petitioner to a probationary position in 1990 and granted her tenure in physical education in 1993.  Prior to the 2002-2003 school year, petitioner taught four physical education classes per day and team-taught one combination health/physical education class ("Silver Bullets") with a health teacher.  Petitioner was solely responsible for grading students in her physical education classes, but was required to collaborate with the health teacher to determine student grades for the Silver Bullets class.

For the 2002-2003 school year, respondent assigned petitioner to three Silver Bullets classes and three in-school suspension periods per day.  She received the same assignment for the 2003-2004 school year.  Petitioner challenges the assignment as an improper imposition of discipline in response to her grading practices and seeks an order directing respondent to reinstate her to the classes she taught prior to 2002-2003.

Petitioner contends that two members of respondent board and the superintendent of schools were dissatisfied with the grades their children earned in her physical education classes.  She alleges that, as a result of that dissatisfaction, respondent made a teaching assignment that, although still within her tenure area, precludes her from exercising sole responsibility for student grades.  Consequently, petitioner claims that the assignment constitutes improper imposition of discipline in violation of Education Law "3020-a.  Respondent denies that the teaching assignment is disciplinary and asserts that petitioner has failed to demonstrate that her teaching assignment violates law or regulation.

Respondent challenges petitioner"s submission of two reply affidavits.  The purpose of a reply is to respond to affirmative defenses and new material set forth in an answer (8 NYCRR ""275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Klipper, 43 Ed Dept Rep ___, Decision No. 14,932; Appeal of Goldin, 43 id. ___, Decision No. 14,904; Appeal of Shafer, 43 id. ___, Decision No. 14,900).  Respondent asserts that the reply affidavits submitted by petitioner in support of her reply go beyond the regulatory parameters and, in fact, raise new material.  I have reviewed the reply affidavits and conclude that they support petitioner"s reply in responding to new material raised by respondents in affidavits submitted with its answer.  Therefore, I have considered the reply affidavits as part of the record in this appeal.

A board of education has broad discretion in assigning members of its professional staff, so long as the employee"s tenure rights are not infringed upon (Matter of Van Heusen v. Bd. of Ed., City School Dist. of the City of Schenectady, et al., 26 AD2d 721; Appeal of Garry, 19 Ed Dept Rep 359, Decision No. 10,166).  In Matter of Van Heusen, the court held that assignment of a tenured mathematics teacher to full-time study hall duties was permissible, stating (supra, at 722):

Essentially, the question presented here is whether a teacher who has taught mathematics for several years may challenge the authority of the school administration to assign him to teaching duties involving the supervision of study hall in place of duties as a mathematics teacher". It is our belief that no legal right of the petitioner has been violated by respondent"s determination to assign him to proper teacher duties involving duties other than those of teaching mathematics.

Moreover, there is no general requirement that a school district assign a teacher to a particular classroom or school (Appeal of Ginnane, 43 Ed Dept Rep ___, Decision No. 14,983; Matter of Sacks, 22 id. 45, Decision No. 10,876), and changes in assignments are permissible as long as the assignments are within the same tenure area (Appeal of Gould, 17 Ed Dept Rep 283, Decision No. 9,604).

     Petitioner does not claim that her assignment is outside the physical education tenure area.  Nevertheless, she contends that the assignment was intended to punish her for her grading practices and refusal to change certain students" grades.  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960; Appeal of Kessler, 43 id. ___, Decision No. 14,958).  Upon the record before me, I find petitioner has not done so.

     Petitioner relies on Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373) in support of her claim that her teaching assignment constitutes impermissible disciplinary action.  In Irving, the transfer of a principal to the subordinate position of assistant principal in another school was found to constitute impermissible disciplinary action.  There, the transfer was based upon the superintendent"s conclusion that certain of the principal"s  actions in her position as principal constituted misconduct and justified immediate action.  The transfer occurred immediately after the principal"s receipt of a critical memorandum, and the district set forth the principal"s alleged misconduct as the reason for her transfer.  The record before me is distinguishable from the unique facts presented in that proceeding.  Therefore, petitioner"s reliance on Irving is misplaced.

     Petitioner asserts that respondent assigned her to classes in which she lacks sole authority for student grades as punishment for her grading practices.  In support of her contention, petitioner relies on three instances she alleges occurred as far back as six years prior to the challenged assignment.  Petitioner claims that two board members and the wife of Superintendent Kenneth Eastwood (formerly the assistant superintendent) complained about the grades earned by their children in petitioner"s physical education classes and allegedly attempted to have petitioner change their grades.  The incidents occurred in the fall semesters of 1996 and 1998 and the spring semester of 2001 " at least six years, five years and one and one-half years prior to the contested assignment.

Specifically, petitioner asserts that, in 1996, a board member"s wife attempted to persuade petitioner to change her daughter"s grade.  Petitioner contends that after the board member and his wife spoke to petitioner"s principal, the principal also attempted to convince petitioner to change the girl"s grade.  However, respondent submits an affidavit from the principal denying that he attempted to do so.

Petitioner also claims that, after the first marking period of the 1998-1999 school year, Superintendent Eastwood"s wife expressed dissatisfaction with her daughter"s grade and asked, "What can we do to make sure that she gets better grades?"  Petitioner characterizes that question as an attempt to convince petitioner to change the grade.  Respondent submits an affidavit by Mrs. Eastwood in which she denies that she asked petitioner to change her daughter"s grade and asserts that her inquiry was directed at improving her daughter"s future grades.

Lastly, petitioner claims that, in February 2001, she spoke with a board member regarding a failing grade his son earned in her class during the Fall 2000 semester.  She claimed the board member threatened her job security when she refused to change the student"s grade.  Respondent submits the board member"s affidavit in which he states that he had no involvement with the district"s administration regarding petitioner"s assignment for the 2002-2003 school year.

Petitioner also submits affidavits from two teachers, Deborah Deeb and Lisa McPherson.  In her affidavit, Deeb states that when she questioned Superintendent Eastwood about petitioner"s assignment, he mentioned petitioner"s grading and indicated he had received pressure from the board.  Deeb alleges this was the basis for petitioner"s 2002-2003  assignment.  In response, the superintendent  denies having discussed the matter with Deeb and asserts that no board member was contacted or consulted regarding petitioner"s assignment.  Respondent also submits the affidavit of Bradford Dates, Supervisor of Health, Physical Education and Athletics, the person responsible for making  teaching assignments in those areas.  Mr. Dates avers that neither the board nor any individual board member discussed  petitioner"s 2002-2003 teaching assignment with him.  He states that, in making the assignment, he considered the sills, abilities and tenure area of the teacher, and the needs of the district, including a need for continuity of teachers in the Silver Bullets course.

     In the McPherson affidavit, the teacher asserts that, in June 2003, she received a telephone call from board member Francis Hoefer in which he indicated petitioner"s assignment was attributable to her grading practices and that he wanted to bring disciplinary charges against her.  In response, respondent submitted affidavits by Hoefer and Superintendent Eastwood.  In his affidavit, Hoefer asserts that he had shared with McPherson his personal opinion that petitioner should be removed from teaching, but that the statements were made after he learned of petitioner"s assignment.  He further asserts that he made no comment and had no input regarding the assignment.  Eastwood avers that, while Hoefer may have expressed his opinion after the fact regarding the rationale for petitioner"s assignment, "that position is nothing more than speculation or conjecture."   Superintendent Eastwood denies that Hoefer or any board member was ever told that petitioner"s assignment was due to grading policies or was an alternative to disciplinary proceedings.

     Respondent maintains that petitioner"s assignment was intended to provide continuity in the Silver Bullets course. Respondent claims that, prior to 2002-2003, different physical education teachers were assigned to teach the course, but it is now taught by a single health teacher and a single physical education teacher.  As noted above, the Eastwood and Bates affidavits submitted by respondent support this assertion.  Petitioner argues that, even if continuity were required in that course, it is not necessary with respect to her assignment to three in-school suspension classes.  However, as noted above, such assignments are generally within respondent"s discretion (Matter of Van Heusen, supra; Appeal of Garry, supra).

     Upon review of this record, including numerous affidavits, I find that the unique facts in Irving are not present here.  In Irving, the district cited incidents of alleged misconduct that immediately preceded the principal"s transfer and were the subject of a counseling letter given to her on the day before the transfer.  In contrast, petitioner here cites three alleged incidents spanning more than six years.  Moreover, as noted above, there is no proof that those incidents motivated petitioner"s 2002-2003 assignment.  There is no evidence that the district"s administration ever criticized petitioner"s grading practices orally or in writing.  In Irving, respondent claimed the principal"s transfer was warranted by her misconduct.  Here, respondent makes no such argument, and there is no evidence that respondent viewed petitioner"s grading practices as misconduct.

Indeed, on this record, I cannot conclude that respondent or any of its members was involved in petitioner"s 2002-2003 assignment - with respect to her grading or for any other reason.  As noted above, both Superintendent Eastwood and Supervisor Bates attest in sworn affidavits that no board member was consulted or had input into petitioner"s 2002-2003 assignment.  Both assert that the assignment was made taking into account the skills, abilities and tenure area of the teacher, and the needs of the district, including the need for continuity in the Silver Bullets course.  After review of the record, I find petitioner failed to meet her burden of proof and failed to establish that her 2002-2003 assignment constituted disciplinary action.