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Decision No. 16,191

Appeal of EUNICE IHEAGWAM from action of Joel I. Klein, as Chancellor of the New York City Department of Education, and Superintendent Linda Waite regarding a teacher rating and termination of employment.

Decision No. 16,191

(January 10, 2011)


Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondents, Jessica L. Miller, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the actions of Joel I. Klein, as Chancellor (“Chancellor”) of the New York City Department of Education (“NYCDOE”), and Superintendent Linda Waite (“Waite”) (collectively “respondents”) in rating her unsatisfactory (“U”) and terminating her probationary appointment.  The appeal must be dismissed.

Petitioner’s three-year probationary appointment as a special education teacher in the New York City School District, commenced on August 28, 2008.  By letter dated December 19, 2008, Waite informed petitioner that on January 20, 2009 she would review whether to discontinue petitioner’s probationary appointment.  Waite listed several letters and observation reports that she would review and afforded petitioner an opportunity to respond. 

In addition, in an annual professional performance review and report on probationary service, dated January 14, 2009, petitioner’s principal gave her an unsatisfactory rating and recommended discontinuance of her probationary appointment.  The report included formal and informal observations, as well as letters referencing several unexcused absences from scheduled department and faculty meetings.  It also included a December 23, 2008 memo to petitioner by the assistant principal for insubordination based on her failure to attend a mandated training session.  On January 20, 2009, Waite concurred with the recommendation to discontinue petitioner’s probationary appointment and notified petitioner of her termination by letter that same date.

Petitioner appealed her unsatisfactory rating to the NYCDOE Office of Appeals and Reviews (“OAR”) which also reviewed the termination of her probationary appointment.  A hearing was held by a three-member Chancellor’s Review Committee on March 19, 2009.  Two panel members recommended permitting petitioner to complete the school year.  The chair issued a determination recommending upholding the “U” rating and terminating petitioner’s probationary appointment.  By letter dated September 8, 2009, Waite notified petitioner that she “reaffirmed the previous action, which resulted in the Discontinuance of Probationary Service, effective ... January 20, 2009.”  This appeal ensued. 

Petitioner asserts that respondents’ termination of her probationary appointment was arbitrary and capricious and in bad faith.  She claims that her services were discontinued due to retaliation and racial discrimination.  Petitioner seeks reversal of her “U” rating, reinstatement of her probationary appointment and assignment to another school.

Respondents maintain that petitioner has failed to demonstrate that they acted in bad faith or were arbitrary and capricious.  They further contend that petitioner’s claim regarding termination of her probationary appointment is time barred and that Waite was not properly served. 

I must first address several procedural issues.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, 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.  To the extent that the reply references decisions of the Commissioner of Education, I take administrative notice of such decisions.

The appeal must be dismissed as against Waite.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  There is no evidence of personal service upon Waite.  Consequently, all claims against her are dismissed.

Respondents assert that petitioner’s challenge to her termination is time-barred.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Respondents claim that petitioner’s time to commence an appeal from termination of her appointment ran from Waite’s January 20, 2009 letter.  However, on March 19, 2009, a hearing was held before OAR to consider the rating and discontinuance of petitioner’s probationary appointment, and OAR’s report addressed both.  By letter dated September 8, 2009 petitioner was informed that Waite had received OAR’s report and “reaffirmed” her decision to discontinue petitioner’s probationary appointment.  This letter appears to represent official notification of the outcome of the district’s internal appeal process.  Accordingly, I find that petitioner timely commenced this appeal from receipt of the September 8, 2009 letter.  

Petitioner’s challenge to her unsatisfactory rating and request to overturn the rating is dismissed.  The standard of proof required to overturn a teacher rating is very high (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Schreiber, 44 id. 393, Decision No. 15,209).  In the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his judgment for that of the Chancellor (Appeal of Bristol, 33 Ed Dept Rep 202, Decision No. 13,023).  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner claims that her “U” rating was arbitrary and capricious, and was issued in bad faith. Respondents submitted observation reports from three formal and informal observations during the period between September and November 2008.  These reports provide detail concerning the lessons presented, petitioner’s behavior, her performance as a teacher and student response.  Among the observations reported were petitioner’s lateness to class, unprepared and ineffective lesson plans, poor student attendance, student lateness, improper corrections of students, misinformation in the content of lessons and a rigid and uncomfortable environment.  The reports also noted petitioner’s difficulties in relationships with colleagues.  The record further indicates that petitioner was provided with constructive criticism and detailed suggestions for improvement.  Accordingly, upon the record before me, and in the absence of any evidence of bad faith, I cannot conclude that the rating was arbitrary or capricious. 

Petitioner also asserts that respondents’ decision to terminate her probationary appointment was wrongful and originated as a result of her speaking up about being bullied, targeted, and harassed due to race.  Generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or in bad faith (Education Law §2573(1)(a); Matter of Frasier v. Board of Educ. of the City School District of the City of New York, 71 NY2d 763).  Although there were some positive comments in the record about her abilities, petitioner has failed to establish that she was terminated for a constitutionally impermissible reason or in violation of statute or that respondents acted in bad faith.  Petitioner offers only conclusory assertions unsupported by any evidence.  As with her challenge to the unsatisfactory rating, petitioner has failed to meet her burden of proof in challenging the termination of her probationary appointment and, consequently, the appeal must be dismissed.

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