Decision No. 18,046
Appeal of LYDIA GRAY-WALLACE from action of Richard Carranza, as Chancellor of the Department of Education of the City School District of the City of New York; the Panel for Educational Policy of the Department of Education of the City School District of the City of New York; Jennifer Ambert, as Community Superintendent of Community School District 27; Rachelle Legions, as Principal of P.S. 106 Q; and Althea Balsdon, as Assistant Principal of P.S. 106 Q, regarding a personnel matter
Decision No. 18,046
(September 7, 2021)
New York City Law Department, attorneys for respondent, Morgan Webber-Ottey, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from actions of Richard Carranza, as Chancellor of the Department of Education of the City School District of the City of New York; the Panel for Educational Policy of the Department of Education of the City School District of the City of New York (“NYC DOE”); Jennifer Carreón Ambert, as Community Superintendent of Community School District 27 (“superintendent”); Rachelle Legions, as Principal of P.S. Q106 (“principal”); and Althea Balsdon, as Assistant Principal of P.S. Q106 (“assistant principal”) (collectively, “respondents”) regarding a personnel matter. The appeal must be dismissed.
In September 2018, petitioner was hired by NYC DOE as a probationary special education teacher assigned to P.S. 106Q, also known as Lighthouse Elementary School (“Lighthouse”).
During the 2018-2019 school year, Lighthouse administrators observed petitioner’s classroom on October 23, 2018; November 9, 2018; January 18, 2019; February 6, 2019; March 1, 2019; and March 13, 2019. Two of these observations were conducted by the principal, while the other four were conducted by a different administrator who is not a party to this appeal. According to the annual professional performance review (“APPR”) reports for these six dates, petitioner received ratings of “developing” or “ineffective” – the two lowest scores – with respect to 24 of the 40 total components upon which she was rated. On June 7, 2019, a Lighthouse administrator issued petitioner a summative supportive improvement plan, identifying various areas of improvement and action steps/activities for petitioner to take with respect to each such area.
During the 2019-2020 school year, the assistant principal observed petitioner’s classroom on October 21, 2019; November 1, 2019; and November 25, 2019. Additionally, the principal observed petitioner’s classroom on January 3, 2020. In the APPR reports for these dates, petitioner received ratings of “developing” or “ineffective” for 17 out of 29 components. In the APPR report for the January 3, 2020 observation date, the principal noted, among other things, that petitioner provided “no monitoring of student learning”; made “no effort to support students[’] understanding”; and “did not follow [her lesson plan], which would have been more beneficial.”
In a letter dated January 16, 2020, the principal advised petitioner that she had “not met the expectations for monitoring and tracking student progress” and that it was petitioner’s “professional responsibility to adhere to the established and communicated expectations for monitoring, tracking, and supporting student progress.”
In a letter dated January 30, 2020, the principal summarized a January 24, 2020 meeting attended by herself, petitioner, and petitioner’s union representative concerning petitioner’s inability to furnish lesson plans on January 16 and 17, 2020 during the principal’s “walkthroughs of the building.” In the letter, the principal advised petitioner that “[t]he expectation [was] for [her] to have [her] planned lessons available upon request and ensure that [she was] implementing them to support student learning.” The principal further noted that petitioner had “been provided with ongoing professional development support ... from administration and outside consultants, which included lesson planning,” and that petitioner was “currently demonstrating levels of performance that [were] less than effective,” putting her “in danger of receiving an adverse rating for the 2019-2020 school year.” On March 13, 2020, the principal implemented a supportive improvement plan, identifying three main areas of improvement and action steps/activities for petitioner to take with respect to each.
By letter dated May 18, 2020, the superintendent informed petitioner that she was reviewing petitioner’s probationary service for potential discontinuance and invited petitioner to submit a response thereto. Petitioner responded by letter dated June 10, 2020, asserting that “[t]his recommendation for discontinuance of [her] probationary service [was] the fault of [the principal] and was due to [petitioner’s] advocacy for vocally addressing the needs of [her] students.” Petitioner also objected to the rubric that NYC DOE uses to evaluate teachers, which was developed by Charlotte Danielson and is known as the Danielson Framework. Petitioner asserted that “[t]here are significant concerns about Charlotte Danielson and the Framework that have been expressed online.”
By letter dated June 18, 2020, the superintendent informed petitioner that, “after reviewing all appropriate documentation, including [petitioner’s] written response,” she was discontinuing petitioner’s probationary service at the end of the day on June 26, 2020. This appeal ensued. Petitioner’s request for interim relief was denied on August 19, 2020.
Petitioner asserts that “there is no reasonable justification for [her] observed lessons, or any portions thereof, to have been rated ‘Ineffective’ or ‘Developing’ since [the principal, assistant principal, and other administrators] didn’t cite any statistics or facts in support.” Petitioner also describes various difficulties she faced while teaching on the days that Lighthouse administrators observed her classroom. In addition, petitioner criticizes the design and efficacy of the Danielson Framework. For relief, petitioner seeks annulment of her discontinuance and reinstatement “to a comparable position in a different [d]istrict 27 school with retroactive pay and all fringe benefits.” Petitioner additionally seeks an order directing respondents “to implement a regulation, policy, or procedure” requiring the superintendent “to speak with a teacher ... after receiving a reply to an initial discontinuance letter, but before sending out a final discontinuance letter.” Finally, petitioner requests “a detailed investigation into the education background and credentials of Charlotte Danielson,” requiring Ms. Danielson “to submit her CV for checking and evaluation,” and inviting “teachers around the State of New York ... to submit their own experiences with the Danielson Framework.”
Respondents argue, among other things, that the petition is untimely and fails to state a claim upon which relief can be granted. On the merits, respondents aver that petitioner has failed to establish that they acted arbitrarily and capriciously by discontinuing her probationary service.
First, I must address several procedural issues. Petitioner has submitted a 102-page reply with 18 accompanying exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 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.
Additionally, to the extent that petitioner seeks an investigation into Charlotte Danielson’s background and the framework she developed, the appeal must be dismissed for lack of jurisdiction. An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).
Petitioners’ remaining requests for relief must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). A determination pursuant to Education Law § 2573 (1) (a) to discontinue an employee’s probationary service “becomes final and binding on that employee on his or her last day at work” (Kahn v New York City Dept. of Educ., 18 NY3d 457, 472 ).
Here, petitioner commenced her appeal by serving copies of the petition upon respondents on July 29, 2020. Pursuant to the superintendent’s June 18, 2020 letter, the discontinuance of petitioner’s probationary service was effective June 26, 2020. Because the last day of petitioner’s 30-day timeframe fell on Sunday, July 26, 2020, petitioner was permitted to serve the petition through the following Monday, July 27 (8 NYCRR 275.8 [a]). However, petitioner did not serve the petition until two days later. Petitioner fails to set forth good cause, or any cause, for such delay in the petition; therefore, the appeal must be dismissed as untimely (8 NYCRR 275.16; Appeal of Jones, 60 Ed Dept Rep, Decision No. 17,981).
Even if the appeal were not dismissed as untimely, it would be dismissed on the merits. Pursuant to its authority under Education Law § 2573 (1) (a), NYC DOE may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 ; see Education Law §§ 3012-c , 3012-d ; 8 NYCRR § 30-2.1 [b]; Kahn v New York City Dept. of Educ., 18 NY3d 457 ; Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Here, petitioner has neither alleged nor proven that her discontinuance was for a constitutionally impermissible reason or that it violated any statute. Rather, petitioner suggests that respondents acted in bad faith insofar as her discontinuance was the result of the principal’s personal animus toward her. Petitioner offers no competent proof of this contention, however, other than her own assertions.
Respondents, meanwhile, generally deny petitioner’s allegations and submit numerous APPR reports supporting their position that petitioner’s discontinuance was based on the many “developing” and “ineffective” ratings that she received throughout the 2018-2019 and 2019-2020 school years (see Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1074 [2d Dept 2016]). Although petitioner suggests that such feedback was insufficient and that Lighthouse administrators did not adequately address various challenges she faced during her probationary service, such assertions fail to render respondents’ discontinuance of her probationary service impermissible.
Additionally, petitioner’s assertion that the APPR ratings she received lack a reasonable justification does not provide a basis to annul her discontinuance and reinstate her to a teaching position. Education Law § 3012-c, which sets forth the procedures and requirements applicable to APPR ratings, provides that “nothing in this section shall be construed to affect the unfettered statutory right of a school district ... to terminate a probationary teacher ... for any statutorily and constitutionally permissible reason” (Education Law § 3012-c ). Therefore, petitioner’s objection to her APPR ratings is insufficient to establish her entitlement to the relief requested. As discussed above, petitioner must establish that respondents discontinued her probation for a constitutionally impermissible purpose, in violation of a statute, or in bad faith, and she has failed to carry her burden of proof on this claim (Appeal of Pankey, 60 Ed Dept Rep, Decision No. 17,962).
Finally, to the extent that petitioner requests that I direct respondents “to implement a regulation, policy, or procedure” requiring the superintendent to speak with a probationary teacher prior to discontinuance, I find that petitioner has failed to set forth an adequate basis for such relief. The record reflects that petitioner received ample notice that she may be discontinued; that the superintendent’s initial May 18, 2020 letter invited petitioner to submit a response; that petitioner did, in fact, respond to the superintendent’s letter; and that the superintendent considered petitioner’s response prior to rendering her final determination. Accordingly, I decline to compel respondents to implement a new procedure, beyond the requirements of Education Law § 2573, obligating the superintendent to communicate with a probationary teacher in person or by telephone.
In sum, even if her appeal were timely, petitioner has failed to carry her burden of proving that respondents discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith (see Matter of Hawkins v Fariña, 171 AD3d 624, 624-625 [1st Dept 2019]). I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 At the time petitioner initiated this appeal, the Chancellor was Richard A. Carranza. The current Chancellor is Meisha Porter.
 Petitioner also alleges that respondents placed “a notation, flag, problem code, or Office of Personnel Investigation (OPI) code ... in [her] Employee Information System (EIS) file, ... to the effect that [she had] been discontinued.” Although petitioner seeks the removal of this notation from her EIS file, she submits no evidence that any such notation in fact exists. In their answer, respondents deny that petitioner has such a notation in her file.
 Additionally, NYC DOE’s use of the Danielson framework is set forth in its approved APPR plan. If petitioner seeks to challenge NYC DOE’s application of this framework, her recourse would be a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules.
 Newspaper articles submitted by petitioner critical of respondent Legions or Lighthouse do not establish bad faith. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (e.g., Appeal of Lazarek and Roy, 55 Ed Dept Rep, Decision No. 16,838.