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Decision No. 15,815

Appeal of ADA VEGA from action of the New York City Department of Education regarding termination of employment.

Decision No. 15,815

(August 6, 2008)

Leeds Morelli & Brown, P.C., attorneys for petitioner, Jennifer Ann Wynne, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua Fay, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her termination by the New York City Department of Education (“respondent”) from her position as an Assistant Principal-Accounting and Business Practices.  The appeal must be dismissed.

Petitioner worked for respondent as a substitute teacher and was later appointed to a teaching position.  Petitioner served as an Interim Acting Assistant Principal from August 31, 1998 to March 18, 1999, was selected for the assistant principal position and began serving a probationary period.

Petitioner took a leave of absence beginning on February 1, 2002 and returned to work on September 2, 2002.  On February 10, 2004, the local instructional superintendent gave petitioner an unsatisfactory rating following an observation of her performance.  Apparently, the superintendent told petitioner that she could either agree to extend her probationary period or he would seek to terminate her service.  Petitioner agreed to a one-year extension of her probation.

Petitioner, the local instructional superintendent and petitioner’s union representative executed an extension of probation agreement, providing that petitioner’s probation be extended from March 11, 2004 to March 11, 2005.  The agreement states that petitioner “waives any rights, claims or causes of action for tenure as an Assistant Principal Supervision Accounting arising prior to March 11, 2005.”  The agreement also states:

[Petitioner] waives any rights, claims or causes of action and agrees not to commence any claims, motions, actions or proceedings of whatever kind against the Chancellor, [the local instructional superintendent], or the Department of Education of the City of New York, or any of their agents or employees for any actions taken or not taken, or statements made or not made by them prior to the date of this agreement.

The agreement further states that petitioner entered it freely, knowingly and without coercion and that she consulted an attorney concerning its terms.

On March 7, 2005, petitioner was again observed and evaluated.  Her performance was rated unsatisfactory.  Her rating officer recommended that she be denied certification of completion of her probationary service because her overall performance was unsatisfactory.  By letter dated March 7, 2005, the deputy regional superintendent notified petitioner that her appointment was terminated as of March 8, 2005.  Petitioner reverted to her prior position as a teacher. 

Petitioner pursued the review procedures provided under her collective bargaining agreement and respondent’s bylaws.  A discontinuance hearing was held on September 28, 2006.  Petitioner’s attorneys submitted a letter asserting that she had acquired tenure by estoppel on February 1, 2004 and that the agreement extending her probationary period was therefore null and void.  By letter dated November 9, 2006, the local instructional superintendent advised petitioner that he reaffirmed the discontinuance of her probationary appointment, which resulted in her termination effective March 9, 2005.  This appeal ensued.

Petitioner asserts that she acquired tenure by estoppel on February 1, 2004.  She argues that her service as Interim Acting Assistant Principal must count toward her probationary period.  She also asserts that her leave of absence ran from February 1, 2002 until June 30, 2002. She claims that the leave thus extended her probation for only five months and that the summer vacation period following her leave of absence, when she was not required to work, should not count as a further extension of her probationary period.  She contends that, because she had unknowingly acquired tenure by estoppel at an earlier date, the extension of probation agreement is a nullity.  She asks me to annul her termination and direct that she be reinstated to the assistant principal position.  

Respondent asserts that the appeal is untimely. Respondent also contends that the petition fails to state a cause of action because petitioner was still serving her probationary period when she agreed to the one-year extension. Respondent asserts that petitioner’s probationary term did not begin until her formal appointment to the Assistant Principal position.   Respondent also argues that petitioner began her leave of absence on February 1, 2002 and did not return to work until September 2, 2002, thereby extending petitioner’s probation for seven months.  Respondent therefore argues that even if petitioner’s probation began on August 31, 1998, it ran until March 31, 2004.

Initially, I must address a procedural issue.  Petitioner’s reply was not verified as required by the Commissioner’s regulations (8 NYCRR §275.5).  Accordingly, I have not considered the reply (seeAppeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No.  15,454; Appeal of Nocerino, 40 id. 244, Decision No.  14,472).

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Petitioner was notified that the local instructional superintendent reaffirmed her termination by letter dated November 9, 2006.  She states that she received the letter “on or about” November 10, 2006.  This appeal, which challenges the local instructional superintendent’s determination, was commenced by service of the petition on December 11, 2006 (seeAppeal of Kelly, 39 Ed Dept Rep 164, Decision No. 14,203; Appeal of O’Brien, 33 id. 35, Decision No. 12,966).  Accordingly, I decline to dismiss the appeal as untimely.

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.  14,382; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Petitioner has failed to meet that burden here.  Petitioner contends that she is entitled to tenure by estoppel.  Tenure by estoppel “results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent” permits an employee to serve beyond the expiration of the probationary term (Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446; citingMatter of Lindsey v. Bd. of Educ. of Mount Morris Cent. School Dist., et al., 72 AD2d 185). To determine whether petitioner is entitled to tenure by estoppel, I must first determine the correct length of her probationary term.

The parties agree that petitioner began serving as Interim Acting Assistant Principal on August 31, 1998.  Respondent contends that her probationary term did not begin until her formal appointment, effective March 11, 1999.  However, a board of education may not artificially extend a probationary period by designating a position “acting” (Matter of McManus v. Bd. of Educ. of Hempstead Union Free School Dist., 87 NY2d 183; citing Ricca v. Bd. of Educ. of the City School Dist. of the City of New York, 47 NY2d 385).  Petitioner served as assistant principal while respondent conducted a search to fill the position and, ultimately, concluded she was the preferred candidate. Accordingly, petitioner’s service as Acting Interim Assistant Principal must be credited toward her probationary term, and her term therefore must be measured from August 31, 1998.

Petitioner argues that her probationary period expired on January 31, 2004.  She asserts that her leave of absence ran from February 1, 2002 to June 30, 2002 and that she should be deemed to have resumed serving her probationary period on July 1, 2002.  However, respondent’s “Service History Inquiry” document shows no activity between February 1, 2002 and September 1, 2002 to indicate that her leave had ended.  Indeed, petitioner acknowledges that she returned to work in September, but claims that the summer months, when she would not have worked in any event, must be credited toward completion of her probation.  Petitioner has not established a clear legal right to this credit.  She relies on Education Law §2573(15), which provides in part that “no period in any school year for which there is no required service and/or for which no compensation is provided” is to be treated as a break in probationary service.  This section does not expressly address the effect of a leave of absence that runs into the summer vacation period between two school years and does not require respondent to grant petitioner the credit she claims.  Thus, petitioner’s initial probationary period expired on March 31, 2004, not January 31, 2004. 

Accordingly, I find that petitioner was still serving her probationary term when she signed the extension agreement and when respondent terminated her employment. 

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