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Decision No. 15,473

Appeal of JEFFREY BREWER from action of the Board of Education of the Bethlehem Central School District regarding termination of employment.

Decision No. 15,473

(October 5, 2006)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

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

     Respondent hired petitioner as an “Aide to Students with Disabilities” at or near the beginning of the 2005-2006 school year.  On February 15, 2006, petitioner was advised that he was going to be terminated from this position effective March 1, 2006.  This appeal ensued.

     Petitioner claims that he was terminated from his employment without receiving training or an evaluation and that he did not receive notice prior to termination.  As a result, he asks, among other things, that I reinstate him to his former position with back pay and compensation for unused sick and personal time.

     Respondent denies petitioner’s claims with respect to training and evaluation.  It claims that petitioner was a probationary employee who failed to meet its expectations and was terminated from his position during his probationary period.  Respondent also argues that it was under no obligation to provide petitioner with earlier notice of his termination.  Respondent further asserts that petitioner’s appeal should be dismissed as premature, for failure to state a claim, and for lack of jurisdiction.

       The appeal must be dismissed for lack of subject matter jurisdiction.  Petitioner does not argue that his former position is among those certified by the Commissioner of Education as being within the unclassified service, nor does he dispute respondent’s assertion that he was a classified employee.  It is well settled that the termination of a classified employee is not the proper subject of an Education Law §310 appeal (seee.g. N.Y. Civ. Serv. Law §76; Appeal of Guadagnino, 38 Ed Dept Rept 503, Decision No. 14,080; Appeal of Compitello, 34 id. 169, Decision No. 13,271; Appeal of Johnson, 30 id. 485, Decision No. 12,544).  Accordingly, the appeal must be dismissed.

      In light of this disposition, I need not address the parties’ remaining contentions.