Appeal of LINDSEY STEPHENSON, from action of the Board of Education of the Hamburg Central School District, regarding termination of a probationary appointment.

Decision No. 16,329

(February 9, 2012)

Harris, Beach, PLLC, attorneys for respondent, Douglas Gerhart, Esq. of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the Hamburg Central School District (“respondent board” or “board”) relating to the termination of her probationary appointment.  The appeal must be dismissed.

Petitioner was appointed by the board to a probationary position as a high school social studies teacher in August 2009, with an effective date of September 1, 2009.  By letter dated May 27, 2010, petitioner was notified that her position was being abolished, effective June 30, 2010, and that she would be placed on a preferred eligibility list.  On June 11, 2010, the last day of the 2009-2010 school year, petitioner allegedly entered another teacher’s classroom and spoke to the students about issues related to the removal of a teacher who was assigned to the class at the beginning of that school year and the subsequent assignment of their new teacher.  She also spoke to the students about the grades in the class for the second marking period and acknowledged that she had reviewed records from students in that class.  After receiving several complaints, the district commenced an investigation into the incident.  Subsequently, the principal submitted a letter to the superintendent dated July 27, 2010, recommending that petitioner be terminated. 

Based on such recommendation, on July 28, 2010, the superintendent notified petitioner that he would be recommending to the board at its September 21, 2010 meeting that petitioner be terminated.  By letter dated August 30, 2010, petitioner made a formal written request for a written statement of the reasons for the superintendent’s recommendation to terminate her services as a probationary teacher pursuant to Education Law §3031.  By letter dated September 1, 2010, the interim superintendent[1]notified petitioner of the reasons for his recommendation that the board terminate her services at its September 21, 2010 meeting and stated that if the board accepted his recommendation, her probationary appointment would be terminated on October 21, 2010.  On September 21, 2010, the board voted to terminate petitioner’s employment, effective October 22, 2010, and to remove her from the preferred eligibility list.  This appeal ensued.

Petitioner claims that she was wrongfully terminated because she was never formally observed by a building administrator pursuant to the Hamburg Teachers’ Association’s collective bargaining agreement.  She further alleges that respondent never provided her with any policy, bylaw or administrative regulation that prohibited her from addressing a class to which she was not assigned.  Petitioner also claims that she was terminated in bad faith and that her First Amendment rights were violated.

Respondent maintains that petitioner was properly terminated and that the petition fails to state a claim  upon which relief can be granted.  Respondent further claims that the petition must be dismissed for failure to join a necessary party and as untimely.  Respondent also alleges that the Commissioner lacks jurisdiction over issues raised in this appeal which petitioner also submitted for resolution through the contractual grievance procedure.  Respondent also asks that I reject petitioner’s reply because it is not properly verified and attempts to raise new matters.

First, I must address several procedural issues.  On December 24, 2010, my Office of Counsel received a document from petitioner labeled “Answer.”  This document appears to be petitioner’s reply to respondent’s answer.    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).  Additionally, §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified (seeAppeal of Clancy, 50 Ed Dept Rep, Decision No. 16,150).  Petitioner’s reply adds assertions and new claims for relief that should have been raised in the petition.  Moreover, the reply was not properly verified in violation of §275.5 of the Commissioner’s regulations.    Therefore, I have not considered petitioner’s reply (seeAppeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472).

In February 2011, petitioner also submitted an “Addendum to Petition.”  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 cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner did not seek prior permission to submit this document, nor does provide any explanation as why this material was not submitted with petition and/or her reply.  Accordingly, I have not considered this material.

Respondent also asserts that petition must be dismissed because petitioner has failed to join the interim superintendent of schools as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  It is the board of education’s decision to terminate petitioner that is being challenged in this appeal (see Education Law §3012), and petitioner seeks no relief against the interim superintendent.  Accordingly, the interim superintendent is not a necessary party to this appeal.

However, the appeal must be dismissed as untimely.  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). 

The record reflects that the board voted to terminate petitioner’s employment and to remove her from the preferred eligibility list on September 21, 2010.  Since petitioner did not commence this appeal until November 22, 2010 and has failed to establish good cause to excuse her delay, the appeal must be dismissed as untimely (seeAppeal of Wright, 45 Ed Dept Rep 356, Decision No. 15,347).

Additionally, it is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of P.S., 49 Ed Dept Rep 61, Decision No. 15,958; Appeal of Klein, 43 id. 305, Decision No. 15,003; Appeal of Chichester, 39 id. 470, Decision No. 14,286).  The record reflects that on September 27, 2010, petitioner brought a grievance in which she alleged that the district violated the parties’ collective bargaining agreement by failing to make available district policies, bylaws and administrative regulations relating to its claim that petitioner improperly addressed another teacher’s class.  Her grievance sought rescission of her termination and placement on the preferred eligibility list.  A final determination denying her grievance ensued on October 5, 2010.

Petitioner then submitted a second grievance on or about September 27, 2010, alleging that the district violated the parties’ collective bargaining agreement when it failed to:  (1) observe petitioner two times and write a report of observations; (2) point out to petitioner areas that needed improvement and professional development; (3) conduct a final evaluation by April 1, 2010; and (4) conduct an evaluation conference.  This grievance was also denied in a final determination on October 5, 2010.

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).  Therefore, to the extent the issues raised in this appeal were the subject of petitioner’s prior grievances, such claims must be dismissed on this additional ground (seee.g.Appeal of Coughlin, 41 Ed Dept Rep 484, Decision No. 14,751).

Even if the petition was not dismissed on procedural grounds, it would be dismissed on the merits.  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 statute or decisional law (Education Law §3012[1][b]; Matter of Mahoney v. Mills, 29 AD3d 1043 lv to app den 7 NY3d 708; Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15908; Appeal of McBeth, 43 id. 52, Decision No. 14,913).  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).

Although petitioner disagrees with respondent’s decision to terminate her services, she does not establish that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.  The record does not support petitioner’s assertions that respondent acted in bad faith.  To the contrary, the record reveals that petitioner’s conduct on June 11, 2010 caused concern among the students in the class and that the district received several parental complaints and expressions of concern about the incident.

I must also reject petitioner’s allegation that, by terminating her in response to her conduct on June 11, 2010, respondent violated her First Amendment rights.  Petitioner’s conduct on June 11, 2010 was not constitutionally protected speech.  The U.S. Supreme Court has articulated a two-part test to determine whether constitutional protections must be afforded to public employee speech.  First, a court must determine “whether the employee spoke as a citizen on a matter of public concern” (Garcetti v. Ceballos, 547 U.S. 418).  The Court stated that “[i]f the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech ....  If the answer is yes, then the possibility of a First Amendment claim arises.  The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public ....” (Garcetti v. Ceballos, 547 U.S. 418).  Here, petitioner made comments regarding the grades of students in her building and the academic integrity of the school, during class time, to students in her school.  Accordingly, this speech was not the speech of a citizen for the purposes of First Amendment analysis and is therefore not entitled to constitutional protection.

On the record before me, there is no basis for overturning respondent’s decision to terminate petitioner’s probationary appointment.  Petitioner has failed to meet her burden of proof.

In light of the foregoing, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.