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Decision No. 15,426

Appeal of DANIELLE TAHIR from action of the Board of Education of the Shoreham-Wading River Central School District regarding termination of employment.


Decision No. 15,426


July 7, 2006


Larry J. McCord, Esq., attorney for petitioner


Grotta, Glassman & Hoffman, P.C., attorneys for respondent, David M. Wirtz and Joanne Skolnick, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Shoreham-Wading River Central School District (“respondent”) to terminate her employment.  The appeal must be dismissed.

During the 2003-2004 and 2004-2005 school years, petitioner taught in respondent’s schools as a probationary teacher.  By letter dated July 5, 2005, respondent’s superintendent notified petitioner that he would recommend termination of petitioner’s probationary employment at respondent’s July 19, 2005 meeting.  The letter stated that petitioner had the right to request a statement of reasons for the recommendation.  By letter dated July 12, 2005, petitioner did so.  By letter dated July 13, 2005, the superintendent notified petitioner that she was recommending termination of petitioner’s employment due to “unsatisfactory performance.”  By letter dated July 29, 2005, petitioner’s attorney requested more specific reasons for termination and also requested that petitioner be given a hearing by respondent.  At respondent’s August 23, 2005 meeting, petitioner’s employment was terminated. Petitioner was notified of the termination by letter dated September 7, 2005.  This appeal ensued.

Petitioner alleges that respondent terminated her employment in bad faith, specifically, for taking three days leave for which she had written approval.  She asks to be reinstated to her former teaching position.  Respondent maintains that the decision to terminate petitioner’s employment was based on a variety of factors, each providing a good faith basis for the decision.

Respondent objects to new allegations raised in petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  While I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Accordingly, I need not consider respondent’s sur-reply.

A board of education has the unfettered right to terminate a probationary teacher’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason in violation of a statutory proscription or in bad faith (Education Law �3012[1][a]; James, et al. v. Bd. of Educ. of Central School Dist. No. 1 of the Towns of Orangetown and Clarkstown, et al., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Gordon v. Town of Queensbury, et al., 256 AD2d 784).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Here, petitioner does not allege that respondent violated a statute or terminated her for a constitutionally impermissible purpose.  Rather, she contends that the recommendation to terminate her employment was arbitrary, irrational and in bad faith.

According to petitioner, in March 2005, she received verbal approval from the high school assistant principal to take the last three days of school as personal days.  Thereafter, she purchased non-refundable airline tickets to Hawaii leaving on June 22 and returning on July 6.  On June 14, 2005, petitioner completed a written request for personal leave on June 22, 23 and 24.  Petitioner argues that the collective bargaining contract only requires someone in “administration” to approve the leave, and that because union officials and the building principal signed the request, she had permission to be absent.  Thus, she argues that her termination was wrongful.

However, petitioner was later told that the superintendent needed to approve the request and that he declined to do so.  In light of the fact that the superintendent –- the chief school officer -– told petitioner that her request was denied, I cannot find that petitioner has established that respondent’s determination was in bad faith.  I also note that the record reflects that during the 2004-2005 school year petitioner was counseled for missing a field trip and admonished and sent home for inappropriate dress.

Absent a constitutionally impermissible reason in violation of a statutory proscription, respondent was free to terminate petitioner’s employment.  On the record before me, I find no basis to disturb respondent’s determination.