Appeal of KETURAH PANKEY 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 Carreón Ambert, as Community Superintendent of Community School District 27; and Rachelle Legions, as Principal of P.S. Q106, regarding a personnel matter.

Decision No. 17,962

(February 8, 2021)

New York City Law Department, attorneys for respondent, Mohammad Adil Yaqoob, Esq., of counsel

ROSA, Interim 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”)[1]; Jennifer Carreón Ambert, as Community Superintendent of Community School District 27 (“superintendent”); and Rachelle Legions, as Principal of P.S. Q106 (“principal”), (collectively, “respondents”) regarding a personnel matter.  The appeal must be dismissed.

Prior to the events giving rise to this appeal, petitioner was employed by NYC DOE as a probationary teacher within Community School District 27 (“district 27”).  During the 2016-2017 and 2017-2018 school years, petitioner was assigned to P.S. Q104.  After being excessed from P.S. Q104, petitioner was assigned to P.S. Q106 – also known as Lighthouse Elementary School (“Lighthouse”) – in September 2018. 

During the 2018-2019 school year, Lighthouse administrators observed petitioner’s classroom on October 5, 2018; November 9, 2018; November 28, 2018; January 25, 2019; and March 22, 2019.  As relevant here, one of these observations was conducted by the principal, while the other four were conducted by a different administrator.  According to the annual professional performance review (“APPR”) reports for these fives dates, which respondents have submitted with their answer, petitioner received ratings of “developing” or “ineffective” – the two lowest scores – with respect to 23 of the 36 total components upon which she was rated.

During the 2019-2020 school year, the principal observed petitioner’s classroom on October 16, 2019 and November 20, 2019.  In the APPR reports for these dates, petitioner received ratings of “developing” or “ineffective” for 13 out of 15 components.  On December 18, 2019, Lighthouse’s assistant principal issued petitioner a supportive improvement plan, identifying four major areas of improvement and action steps/activities for petitioner to take with respect to each. 

That same day, the principal observed petitioner’s classroom for the full period.  According to the APPR report for this observation date, the principal rated petitioner as “developing” or “ineffective” with respect to all eight components for which petitioner received ratings.  Among other things, the principal noted in the report that petitioner did “not provide clear explanations of the content”; “gave wrong information to students”; did not “monitor[] ... student behavior”; and “did not provide a variety of appropriately challenging materials and resources” to the students.

By letter dated January 6, 2020, the principal advised petitioner that she was “in danger of being recommended for [d]iscontinuance of [p]robation to the [s]uperintendent.”  The principal invited petitioner to “let administration know” if she wished to revise her supportive improvement plan.

By letter dated April 15, 2020, the superintendent informed petitioner that she was reviewing petitioner’s probationary service for potential discontinuance and invited petitioner to submit a response.  Petitioner responded to the superintendent by letter dated April 17, 2020, asserting she was being “singled out” for “not getting along” with the principal.  Petitioner further alleged that she had “been harassed numerous times through out [sic] the school year”; however, she stated that she did not “want to go into detail because the situation [made her] very uncomfortable.”  Petitioner stated that she “would love to continue teaching in district 27 at a different school if possible.”

By letter dated May 15, 2020, the superintendent informed petitioner that, “after reviewing all appropriate documentation, including [petitioner’s] written response,” she was discontinuing petitioner’s probationary service effective close of business May 15, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 22, 2020.

Petitioner contends that the principal’s ratings of her teaching performance were arbitrary because the principal “failed to cite the rational factual basis or reasonable justification for them.”  Petitioner also argues broadly that the principal “harass[ed]” and “embarrassed” her.  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.”

Respondents argue that the petition is untimely and fails to state a claim upon which relief can be granted.  Respondents further aver that petitioner has failed to establish that they acted arbitrarily and capriciously in terminating her employment. 

First, I must address several procedural issues.  Petitioner has submitted a 58-page reply with 12 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 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 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.

Next, respondents assert that 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Here, petitioner commenced her appeal by serving copies of the petition upon respondents on June 15, 2020 – 31 days after the discontinuance of her probation on May 15, 2020.  Because the last day of petitioner’s 30-day timeframe fell on Sunday, June 14, 2020, however, petitioner permissibly served the petition the following Monday (8 NYCRR §275.8[a]).  Accordingly, I decline to dismiss the appeal as untimely.

Respondents also suggest that the appeal is untimely because petitioner did not file a copy of the petition with my Office of Counsel within five days of service of the petition, as dictated by section 275.9(a) of the Commissioner’s regulations.  Although respondents are correct that petitioner did not file the petition until July 8, 2020 – 23 days after service – respondents have not established that they suffered any prejudice as a result of this delay (Appeal of Caraballo, 52 Ed Dept Rep, Decision No. 16,477; Appeal of McSweeney, 42 id. 59, Decision No. 14,775).  I therefore find that petitioner’s delay constituted harmless error.

To the extent petitioner seeks to make claims on behalf of her co-teacher, such claims must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Accordingly, petitioner lacks standing to allege, among other claims, that her co-teacher “was being retaliated against and harassed.”

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 [1988]; see Education Law §§3012-c[1], 3012-d[9]; 8 NYCRR §30-2.1[b]; Kahn v. New York City Dept. of Educ., 18 NY3d 457 [2012]; 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 the burden of establishing the facts upon which petitioner 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.  Although petitioner attributes several inappropriate or inflammatory statements to the principal, petitioner offers no proof in support of these contentions beyond 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]). 

Notably, petitioner received similar ratings from an administrator other than the principal during the 2018-2019 school year.  Moreover, although petitioner submits a letter from an “Instructional Coach”[2] who speaks positively of her abilities, the fact that petitioner received a favorable evaluation from this individual is insufficient to establish that respondents acted in bad faith (Matter of Muller v. New York City Dept. of Educ., 142 AD3d 618, 621 [2d Dept 2016] [probationary teacher’s receipt of “some favorable evaluations” insufficient to raise triable issue of fact as to school district’s alleged bad faith]).

I acknowledge that, as petitioner indicates, respondents did not submit “any affidavits ... from anyone else with firsthand knowledge of the facts and circumstances.”  I further acknowledge that, in their answer, respondents deny knowledge or information sufficient to form a belief as to certain statements or actions that petitioner attributes to district employees.  In this respect, I admonish respondents to make reasonable efforts in the future to learn the facts necessary to prepare a meaningful response to allegations regarding its employees (see Appeal of C.M., 58 Ed Dept Rep, Decision No. 17,644 [admonishing NYC DOE for similar conduct]).  Nevertheless, on this record, I find that petitioner has failed to carry her burden of proof for the reasons discussed above.

Although petitioner claims that the APPR ratings she received from the principal lack a “rational factual basis or reasonable justification,” this assertion 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[1]).  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. 

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 April 15, 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, 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.

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