Decision No. 18,130
Appeal of JANINE OLEJNIK from action of Meisha Ross Porter, as Chancellor of the Department of Education of the City School District of the City of New York; Richard Carranza, as former 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 Carreón, as Community Superintendent of Community School District 27; Laurie Shapiro, as Principal of P.S. 105 Q; Matthew Goggin, as Assistant Principal of P.S. 105 Q; and Joseph Durso, as Assistant Principal of P.S. 105 Q, regarding a personnel matter.
Decision No. 18,130
(June 7, 2022)
New York City Law Department, attorneys for respondent, Abed Z. Bhuyan, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from actions of Meisha Ross Porter, as Chancellor of the Department of Education of the City School District of the City of New York; Richard Carranza, as former 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, as Community Superintendent of Community School District 27 (“superintendent”); Laurie Shapiro, as Principal of P.S. 105 Q (“principal”); Matthew Goggin, as Assistant Principal of P.S. 105 Q (“assistant principal Goggin”); and Joseph Durso, as Assistant Principal of P.S. 105 Q (“assistant principal Durso”) (collectively, “respondents”) regarding a personnel matter. The appeal must be dismissed.
In September 2015, petitioner was hired as a probationary special education teacher by the NYC DOE. She received an overall rating of “developing” on her 2015-2016 annual professional performance review (“APPR”). In the summer of 2016, petitioner was hired as a probationary special education teacher at P.S. 105 Q, also known as The Bay School (“Bay School”). By letter dated October 26, 2016, assistant principal Durso admonished petitioner for her failure to comply with protocols during a school safety drill and warned her that “failure to follow set school routines and procedures may lead to further disciplinary action.” Petitioner received a rating of “developing” on her 2016-2017 measures of teacher practice (“MOTP”) summary report.
On June 23, 2017, the principal and petitioner signed a teacher improvement plan (“TIP”) for the 2016-2017 school year, identifying various areas of improvement and action steps/activities for petitioner to take with respect to each area.
Petitioner received ratings of “effective” and “developing” on her 2017-2018 and 2018-2019 MOTP summary reports, respectively. During the 2018-2019 and 2019-2020 school years, petitioner was admonished by school administrators for various infractions and informed that such infractions could lead to disciplinary action, including termination. In a letter dated November 2, 2018, the principal referred to an incident in which petitioner was unable to produce a lesson plan. In a letter dated November 15, 2018, assistant principal Durso informed petitioner of his conclusion that she had “committed an act of corporal punishment” against a student in violation of NYC DOE regulations and the Education Law. In a counseling memorandum dated January 29, 2019, the principal admonished petitioner for failing to provide required services to a student pursuant to an individualized education program (“IEP”). Finally, by letter dated April 8, 2019, assistant principal Durso reprimanded petitioner for failing to properly or timely complete required student progress reports and for lying to school administrators about the status thereof.
In October 2019, petitioner and the principal signed a teacher improvement plan (“TIP”) for the 2019-2020 school year, identifying various areas of improvement and action steps/activities for petitioner to take. By letter dated May 8, 2020, assistant principal Goggin described an incident in which petitioner failed to properly set up and utilize her Google Classroom. In a letter dated November 5, 2020, the principal again admonished petitioner for failing to implement a student’s IEP.
By letter dated March 23, 2021, the superintendent informed petitioner that she was reviewing her probationary service for potential discontinuance as of April 23, 2021. The superintendent’s letter indicated that her consideration of petitioner’s discontinuance would be based upon documents that she attached to the letter, consisting of documents from petitioner’s personnel file. The superintendent invited petitioner to submit a response “no later than seven ... days prior” to April 23, 2021.
Petitioner responded by letter dated April 16, 2021, asserting that her employment should not be discontinued. Petitioner 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 also objected to specific documents included with the superintendent’s March 23, 2021 letter, arguing that “[t]here is neither a rational factual basis nor a reasonable justification to support a discontinuance of probationary service.” Petitioner described the principal as “ethically-challenged” based upon disciplinary action taken against her by the New York City Conflicts of Interest Board, questioning whether she was “able to accurately evaluate a teacher based on facts and statistics.”
By letter dated April 23, 2021, the superintendent informed petitioner that, “after reviewing all appropriate documentation, including [petitioner’s] written response,” she was discontinuing petitioner’s probationary service as of the end of the day. This appeal ensued. Petitioner’s request for interim relief was denied on May 28, 2021.
Petitioner alleges that observation reports were excluded from the documents that accompanied the superintendent’s March 23, 2021 letter, and that the superintendent “did not read [her] observation reports before making the decision for discontinuance.” Petitioner also asserts that she was intimidated by the principal’s “demeaning manner and harsh statements,” describing unpleasant interactions with administrators at the Bay School. 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 with retroactive pay and 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.
Respondents argue that petitioner did not exhaust her administrative remedies and that her petition fails to state a claim upon which relief can be granted. On the merits, respondents aver that their actions were lawful, and 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 submitted an extensive reply with 14 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, petitioner seeks permission to add proof of her effectiveness ratings for the 2016-2019 school years, which she alleges “were missing from [her] official school file.” Petitioner also seeks permission to submit her effectiveness rating for the 2020-2021 school year, which she asserts was entered into respondent’s database after she commenced this appeal. Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Respondents do not dispute the ratings given to petitioner, which are relevant to her allegations in this proceeding. Therefore, I have accepted petitioner’s ratings into the record.
Turning to 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 not proven that respondents discontinued her probationary service for a constitutionally impermissible reason or in violation of a statute. While petitioner presents a litany of grievances—including claims that the superintendent did not read or consider all available information in making her decision to discontinue petitioner’s employment; that documents were altered or improperly included or excluded from her personnel file; that the principal did not support her; and that bad acts allegedly committed by the principal and assistant principal Goggin rendered them incapable of properly evaluating her performance—she offers no proof of these contentions beyond her own assertions. Respondents deny petitioner’s allegations and refer to APPR reports supporting their position that petitioner’s discontinuance was based on the “developing” ratings that she received throughout her time teaching in respondent NYC DOE’s schools (see Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1074 [2d Dept 2016]). As such, petitioner has not met her burden of proving that the discontinuance of her probationary service violated a statute/constitutional provision or was made in bad faith.
Petitioner’s assertion that the APPR ratings she received lacked 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 indicated above, petitioner must establish that respondents discontinued her probation for a constitutionally impermissible purpose, in violation of a statute, or in bad faith, which she has not done (Appeal of Gray-Wallace, 61 Ed Dept Rep, Decision No. 18,046; Appeal of Pankey, 60 id., Decision No. 17,962).
Finally, petitioner has not demonstrated why I should direct respondents “to implement a regulation, policy, or procedure” requiring the superintendent to speak with a probationary teacher prior to discontinuance. The record reflects that petitioner received sufficient notice that her probation would be discontinued. The superintendent’s March 23, 2021 letter provided 30 days’ notice, petitioner responded, and the superintendent reached a final determination in which she indicated that she considered petitioner’s response. Accordingly, I decline to compel respondents to implement a new procedure beyond the obligations required by statute (Education Law §§ 2573, 3031).
In sum, 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 Meisha Ross Porter. The current Chancellor is David C. Banks.
 School districts and BOCES are required to conduct an annual professional performance review (APPR) for each teacher and principal, resulting in a rating of “highly effective,” “effective,” “developing,” or “ineffective” (Education Law § 3012-d).
 The MOTP is a subcomponent of a teacher’s overall APPR rating. According to the NYC DOE, the MOTP “provides opportunities for teachers to be observed and receive formative feedback at various points throughout the year.”
 TIPs are provided to teachers who receive an overall APPR rating of “developing” or “ineffective” (Education Law § 3102-c ).
 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 (Appeal of Gray-Wallace, 61 Ed Dept Rep, Decision No. 18,046).
 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 and possibly other files, as well.” Although petitioner seeks the removal of this notation from her employee files, she submits no evidence that any such notation exists. In their answer, respondents deny the existence of such a notation.
 In this regard, I note that the documents that accompanied the superintendent’s March 23, 2021 letter included only one overall APPR rating for petitioner (a rating of “Developing” for the 2015-2016 school year). In addition to the sole APPR rating, the superintendent’s letter included MOTP summary reports for the 2016-2017, 2017-2018, 2018-2019 school years as well as the TIPs that were developed for petitioner for the 2016-2017 and 2019-2020 school years. As noted above, TIPs are developed for teachers who receive an overall APPR rating of “Developing” or “Ineffective” (Education Law § 3012-c ).
 Petitioner and respondents agreed to extend petitioner’s probation through September 1, 2021. As such, the provisions of Education Law § 2573 requiring 60 days’ notice for teachers who are not recommended for tenure at the conclusion of their probationary term are not applicable.