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Decision No. 16,855

Appeal of SEAN FORMATO from action of John DeTommaso, Superintendent of Schools, and Dr. Mara Bollettieri, Assistant Superintendent of the Bellmore-Merrick Central High School District regarding a complaint investigation.

Decision No. 16,855

(December 29, 2015)

Ingerman Smith, L.L.P., attorneys for respondents, Kerrin A. Bowers, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from actions of John DeTommaso, Superintendent of Schools of the Bellmore-Merrick Central High School District (“superintendent”) and Dr. Mara Bollettieri, the district’s Assistant Superintendent for Personnel and Administration (“assistant superintendent”) (collectively “respondents”) removing petitioner from his classroom pending an investigation into complaints received from parents and placing a letter in petitioner’s personnel file.  The appeal must be dismissed.

Petitioner is a tenured secondary English teacher at the district’s high school.  In December 2013, the high school principal was informed that parents of students in petitioner’s Advanced Placement (“AP”) English class had concerns about petitioner.  According to the high school principal at that time, the concerns involved petitioner’s use of class time, preparation of students for the Regents examination and a reported reference by petitioner to “penis piercings.”

As a result, a meeting with petitioner took place on December 10, 2013, attended by the chairperson of the English department, the principal, and petitioner’s union representative.  At the meeting, the issues reported to the principal were discussed; specifically, petitioner’s use of class time to discuss personal matters; concerns about curriculum pacing based on information that students had just begun their first literary work in December; and the reported reference to penis piercings made by petitioner in class.  According to the former principal’s affidavit, he noted petitioner’s lack of communication with the department chairperson, specifically with regard to the number of literary works taught during the year.  At that time, petitioner was informed that he would be put on an intensive supervision plan (“ISP”) and expected to attend weekly meetings with his department chairperson.  Petitioner’s union representative inquired as to the severity of the ISP, and was informed that the purpose of the ISP was to prevent future problems with communication; the principal did not consider the ISP to be a Teacher Improvement Plan pursuant to the Annual Professional Performance Review (“APPR”) requirements.

The principal also informed petitioner at the December 10 meeting that he would continue to investigate the inappropriate comment reportedly made by petitioner.  That same day, the assistant superintendent notified petitioner that, beginning December 11, he was temporarily reassigned to the district office while the investigation was pending. Petitioner remained on reassignment for three school days.

The record indicates that, on December 13, 2013, petitioner met with the principal, assistant superintendent, a union representative, and the president of the Bellmore-Merrick United Secondary Teachers.  At that time, petitioner was advised that students confirmed that a conversation referencing “penis piercings” had occurred and that off-task conversation took place in the classroom.  The principal averred that, “[g]uidance was provided ... as to how petitioner could remedy this.” Following that meeting, petitioner was returned to the classroom.

By letter dated December 19, 2013, the principal memorialized the December 10 meeting with petitioner and also attached a memorandum, dated December 17, 2013, summarizing the December 13 meeting.  On January 6, 2014, petitioner signed the letter and memorandum, acknowledging that a copy of the same would be placed in his personnel file.  There is no evidence in the record that petitioner filed a response to the letter or instituted any grievance under his collective bargaining agreement.

Several months later, by letter dated May 5, 2014, another teacher at the high school submitted a complaint to the superintendent against the assistant superintendent (“AS complaint”) regarding “her hazing and bullying” of petitioner based on the above-described chain of events.  The complaint alleged denial of petitioner’s due process rights “under the Dignity Act and the current collective bargaining agreement” during the course of the December 2013 events.  The teacher alleged that such conduct by the assistant superintendent violated Board Policy 0115 (“Harassment, Bullying and Discrimination”) and sought an investigation pursuant to such policy.  The superintendent acknowledged receipt of the complaint and advised the teacher that an investigation pursuant to Board Policy 0115 was denied, as the issues set forth in the complaint were not within the scope of such policy. 

By letter dated May 6, 2014, the teacher submitted a separate complaint to the high school principal against the English department chairperson, Kim Serpe (“Serpe complaint”).  The Serpe complaint was substantially similar to the AS complaint; however, the Serpe complaint contained additional allegations that the weekly meetings with the department chairperson, required of petitioner, violate Board Policy 0115, the district’s APPR plan, and petitioner’s collective bargaining agreement.  It appears that the principal met with petitioner several times regarding the Serpe complaint. By letter dated June 9, 2014, the principal notified petitioner of his determination that the complaint’s allegations of violations of Board Policy 0115 and due process were unfounded.  This appeal ensued.

Although the petition is not entirely clear, petitioner appears to contend that the December 2013 parent complaint resulted in an investigation pursuant to Board Policy 0115 (pertaining to harassment, bullying and discrimination) and that respondents failed to comply with the procedures set forth in that policy.  Specifically, he claims that he was improperly and prematurely removed from his classroom during the investigation, that he never received a final written determination and that a punitive letter was placed in his file in violation of his due process rights under the policy and his collective bargaining agreement.

Petitioner also claims that the alleged punitive letter and the required weekly meetings with the department chairperson independently constitute acts of bullying and hazing by district administrators.  I note, however, that the petition does not include a request for relief in this regard.  Petitioner seeks removal of the December 19, 2013 letter (and attached memorandum) from his personnel file, a determination that his due process rights under Board Policy 0115 and the collective bargaining agreement were violated, and issuance of a letter of reprimand “to the offending parties.”

Respondents contend that the appeal is untimely and that petitioner has failed to establish that respondents’ actions were arbitrary, capricious or illegal.  Respondents further assert that the Dignity for All Students Act (Education Law, Article 2) prohibits harassment, bullying and discrimination against students and, thus, does not apply to other individuals, such as petitioner.  Respondents contended that, therefore, petitioner’s claims of bullying and harassment must be dismissed.  Respondents also maintain that there is no authority for the Commissioner to issue letters of reprimand to district staff.  Respondents assert, therefore, that petitioner has failed to state a claim upon which relief may be granted.  Respondents contend that their actions were, in all respects, proper.

I must first address the procedural issues raised by respondents.  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).  Petitioner appeals from the alleged denial of his due process rights, based upon his removal from the classroom, the institution of required weekly meetings, and placement of a letter in his personnel file.  However, petitioner was removed from his classroom during the period of December 11, 2013 through December 13, 2013.  The determination to implement weekly meetings as an intensive support plan was made in December 2013.  The letter petitioner seeks to have removed from his personnel file was dated December 19, 2013 and signed by petitioner on January 6, 2014, acknowledging that it would be placed in his personnel file.  This appeal was not commenced until June 13, 2014 - well beyond the required 30 day period - and petitioner has not submitted any reply or offered any reason for the delay.  I note that the subsequent filing of a complaint by another teacher regarding alleged treatment of petitioner by district staff does not extend petitioner’s time in which to challenge the underlying actions (in December 2013 and January 2014) which are the gravamen of petitioner’s appeal herein.  Therefore, the appeal is dismissed as untimely.

I also note that, to the extent petitioner requests the issuance of a reprimand to the “offending parties,” there is no provision in the Education Law to authorize the censure or reprimand of a board member or district staff by the Commissioner of Education (see Appeal of Coleman, et al., 42 Ed Dept Rep 256, Decision No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237; Appeal of Kane, 34 id. 116, Decision No. 13,251).

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