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Decision No. 17,033

Appeal of H.H. from action of the Board of Education of the Keshequa Central School District and Superintendent Donald Covell regarding contract violations.

Decision No. 17,033

(January 27, 2017)

Harris Beach, PLLC, attorneys for respondents, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Keshequa Central School District (“respondent board”) and Donald Covell, in his capacity as superintendent (collectively referred to as “respondents”), to recommend the termination of petitioner’s probationary appointment and the denial of disclosure of certain materials requested by petitioner.  The appeal must be dismissed.

Petitioner was a probationary teacher employed by the Keshequa Central School District as a business teacher during the 2011–2012 school year.  In February 2012, it was brought to the attention of the superintendent that petitioner may have had inappropriate interactions with female students in violation of district policy.  The superintendent conducted interviews of the students involved in the alleged conduct and, as a result of those interviews, petitioner was placed on administrative leave with pay.  Additionally, in a meeting with the superintendent, president of the Keshequa Central Teachers’ Association (“Association”) and others, petitioner was provided an opportunity to respond to the students’ allegations, at which time he denied engaging in any inappropriate conduct.

Over the course of the next several weeks, an investigation into the students’ allegations was conducted by the Labor Relations Coordinator for the Genesee Valley Educational Partnership.  At the conclusion of the investigation, a Confidential Investigation Report was provided to the district which concluded that there was substantial evidence that petitioner had violated district policy and rules.  Thereafter, on February 27, 2012, the superintendent informed petitioner that he would be recommending the termination of petitioner’s probationary appointment to respondent board, effective April 27, 2012.  By letter dated February 27, 2012, petitioner was notified of the same in writing, as required by Education Law §3031.

Thereafter, on or about February 29, 2012, petitioner submitted seven separate grievances against the district under the Association contract.  All of the grievances are based on the statements of the two students, allege violations of petitioner’s collective bargaining agreement, and request that any termination or resignation be postponed pending the outcome of the grievances.  A Step One rejection was issued for each grievance, after which the grievances were referred to the superintendent.  Thereafter, the Association decided to withdraw six of petitioner’s seven grievances.  At the time of the filing of this appeal, one grievance remained.

By letter dated March 1, 2012, petitioner sought clarification from the superintendent as to his options with regard to resignation in lieu of termination.  By separate letter, also dated March 1, 2012, petitioner also requested a name-clearing hearing.  By return correspondence dated March 5, 2012, the superintendent summarized petitioner’s options with regard to resignation.  By letter dated March 7, 2012, the superintendent informed petitioner that his request for a name-clearing hearing was denied as it was premature since he had not been terminated.

Several days after that exchange, by letter dated March 14, 2012, the superintendent informed petitioner that, at respondent board’s April 13, 2012 meeting, the superintendent would be recommending to the board that petitioner’s services as a probationary teacher be terminated.  By return correspondence dated March 19, 2012, petitioner requested a written statement regarding the reasons for such recommendation as well as disclosure of specified materials from the district.  The superintendent responded to petitioner’s request by letter dated March 21, 2012, providing the reason for his recommendation to respondent board but did not address the requested disclosure.  Thereafter, petitioner sent another letter regarding his requests for disclosure and his request to address respondent board at the upcoming meeting, in response to which the superintendent replied, advising petitioner that he was not entitled to address respondent board.  This appeal ensued.

Petitioner contends that he was denied full disclosure of the reasons for his termination, that derogatory materials have been placed in his personnel file in violation of his collective bargaining agreement, and that he was unlawfully denied a name-clearing hearing.  Additionally, petitioner contends that the district is terminating him in violation of the collective bargaining agreement as he has a pending grievance against the district.  Other than a request for interim relief, which was denied on April 11, 2012, petitioner makes no specific request for relief in his papers.

Respondents generally deny petitioner’s claims and further assert that petitioner’s appeal should be dismissed for failure to state a claim and for lack of jurisdiction.  Respondents also assert that petitioner’s claim for a name-clearing hearing was premature because the superintendent had not made a decision to terminate his employment when the appeal was commenced.  Respondents also assert that petitioner’s reply was premature and contains new allegations and, therefore, should not be considered.

I will first address the procedural issues.  Respondents argue that petitioner’s reply should not be considered as it is untimely and contains new materials.

Respondent objects to petitioner’s submission of a document entitled “Verified Reply,” which appears to have been submitted in response to respondent’s opposition to petitioner’s request for interim relief.  This type of response is not a pleading included in §275.3 of the Commissioner's regulations.  However, I note that the affidavits submitted in opposition to petitioner’s request for interim relief were incorporated by reference in paragraph 8 of respondent's answer.  In the absence of any demonstrable prejudice to respondent, I will permit petitioner’s submission as in the nature of a reply to respondent's answer (Appeal of R.L., 55 Ed Dept Rep, Decision No. 16,868; Appeal of K. and J.G., 52 id., Decision No. 16,433).

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.

Respondents maintain that the appeal should be dismissed because the petition does not contain a clear and concise statement of petitioner’s claim.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Respondents have not alleged or demonstrated that any prejudice resulted from a lack of clarity in the petition and further, respondent was apparently able to adequately address petitioner's claims in its answer and memorandum of law.  Therefore, I find that petitioner adequately set forth his claims and demand for relief in the petition and I will not dismiss the appeal on that basis.

Respondents assert that the Commissioner lacks jurisdiction over matters previously raised in another forum for which the petitioner seeks the same or similar relief.  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).  As petitioner elected to pursue his various claims relating to the respondents’ alleged denial of disclosure of the investigation files, denial of access to his personnel file, and placement of derogatory material in his personnel file, through the grievance process under his collective bargaining agreement, I am without jurisdiction to review those claims and they must be dismissed (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Stephenson, 51 Ed Dept Rep, Decision No. 16,329; Appeal of P.S., 49 id. 61, Decision No. 15,958; Appeal of Klein, 43 id. 305, Decision No. 15,003).

Petitioner’s remaining claims warrant dismissal on the merits. Respondents assert that petitioner fails to meet his burden of proof with regard to the relief sought in the petition.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  The record before me indicates that respondents complied with Education Law §§3012 and 3031 regarding termination of petitioner’s probationary appointment.  Education Law §3012(1)(a) provides that the services of a probationary teacher may be discontinued at any time during the probationary appointment upon recommendation of the superintendent.  Education Law §3031(a) provides that a teacher for whom a recommendation not to appoint to tenure will be made is entitled to written notice of such recommendation 30 days prior to the meeting at which the recommendation will be made.  Pursuant to §3031(a), the superintendent notified petitioner in writing of his recommendation at least 30 days prior to the board meeting at which he intended to recommend termination of petitioner's appointment.  Petitioner requested and received a statement of reasons for the recommendation as required by §3031(a) and was afforded an opportunity to respond.

Pursuant to Education Law §3012(1)(a), the services of a probationary teacher may be discontinued at any time during the probationary period and dismissal of a probationary teacher will not be set aside unless the teacher shows that a board terminated service for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith (Frasier v. Bd. Of Educ. of City School Dist. of City of New York, 71 NY2d 763; James v. Bd. of Educ., Central School Dist. No. 1 of the Towns of Orangetown and Clarkstown, 37 NY2d 891; Appeal of Newton, 56 Ed Dept Rep, Decision No. 17,007; Appeal of Tahir, 46 id. 16, Decision No. 15,426).  While petitioner alleges that he was terminated for impermissible reasons, he provides no evidence to support such a claim.  Accordingly, I find that petitioner has not met his burden of showing that he was improperly terminated by respondents and the appeal must therefore be dismissed.

Finally, although the petition is not entirely clear, it appears that petitioner also alleges that respondents improperly denied him a name-clearing hearing.  To the extent that petitioner is claiming such denial was improper, the claim must be dismissed.  It is well-settled that a probationary teacher serves at will and is not entitled to a pre-termination hearing unless it can be shown that the teacher’s dismissal was for a constitutionally impermissible reason or in violation of a statutory proscription (Castro v. Board of Educ. of the Patchogue-Medford Public Sch. Dist., et. al, 777 F.Supp. 1113; Bergstein, et. al v. Bd. of Educ. of Union Free Sch. Dist. No. 1 of the Towns of Ossining, New Castle and Yorktown, 34 NY2d 318; Matter of Strax v. Rockland County Bd. of Coop. Educ. Servs., 257 AD2d 578; Appeal of Madden-Lynch, 31 Ed Dept Rep 411, Decision No. 12,683).  However, the teacher would be entitled to a name-clearing hearing where the reasons given for termination have a stigmatizing effect upon the employee and the employer disseminates those reasons (Donato v. Plainview-Old Bethpage Central Sch. Dist., 96 F3d 623, cert. den. 519 US 1150; Lentlie v. Egan, 61 NY2d 874), and such hearing may occur post-termination (Segal v. City of New York, 459 F3d 207).  The Second Circuit has previously held that actions rise to a stigma of constitutional proportions and, thus, a probationary employee can invoke the protections of the due process clause where the employee has suffered a loss of reputation coupled with a deprivation of a property right, referred to as “stigma-plus” (Segal v. City of New York, 459 F3d 207).  In a stigma-plus claim, the individual alleging stigma must show: (1) that the government made stigmatizing statements about him or her that call into question the employee’s good name, reputation, honor or integrity; (2) that these stigmatizing statements were made public; and (3) that the stigmatizing statements were made concurrently, or close in time, to the individual’s dismissal from employment (id. at 212).  In this instance, the first and third elements have been satisfied; the reasons for petitioner’s termination clearly contain information that call into question petitioner’s reputation and such documentation was made during the course of his termination.  Various federal Courts of Appeals, including the Second Circuit, have held that the public disclosure requirement, the second element set forth above, has been satisfied where the stigmatizing statements are placed in the individual’s personnel file and are likely to be disclosed to future employers (Brandt v. Bd. of Coop Educ. Services, 820 F2d 41, 45).  However, here respondent has indicated that the interview file and the statement of reasons for petitioner’s termination have not been placed in petitioner’s personnel file and petitioner has neither alleged nor proven that future employers will have access to the statement of reasons for his termination or the investigatory request.  Therefore, on this record, petitioner has failed to prove that the stigmatizing reasons have been made public and, thus, has not met his burden of proving the second element of a stigma-plus claim (Wilcox v. Newark Valley Cent. Sch. Dist., 107 AD3d 1127).  Therefore, on these facts, I find that respondents’ denial of a name-clearing hearing was proper and petitioner’s claim in this regard must be dismissed.

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