Decision No. 12,785

(August 24, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent's action terminating her services as a probationary speech/language teacher. She seeks an evidentiary hearing to refute the reasons given for her termination, and reinstatement for one additional school year. Petitioner also seeks to have removed from her personnel file all derogatory material that was not reviewed and signed by petitioner or that she was not given the opportunity to refute. The appeal must be sustained in part.

In May 1989, petitioner was appointed a probationary speech/language therapist commencing August 29, 1989. Petitioner was assigned to School No. 39 for the 1989-90 school year and was assigned to School No. 29 for the 1990-91 school year.

The superintendent of schools notified petitioner by letter dated October 19, 1990, that she would be immediately suspended without pay and that on December 6, 1990, the board would consider terminating petitioner's employment effective January 6, 1991. Petitioner was also informed that, pursuant to Education Law '3031 and the teachers' collective bargaining agreement, she could request a written statement of the reasons for the proposed termination. Petitioner made such a timely request. By letter dated October 29, 1990 she was informed by the supervising director of human resources that petitioner was recommended for termination because of her uncooperative working relationship with fellow speech/language teachers and classroom teachers, her arrogant and hostile mannerisms to fellow staff and administration, her ineffective communication skills and her failure to work as a team member, despite continual counseling by administrative staff. At its December 6, 1990 meeting, respondent board terminated petitioner's employment effective January 6, 1991. Petitioner commenced this appeal on January 7, 1991. Her request for a stay pending a determination on the merits was denied on February 27, 1991.

Petitioner contends that the reasons given for her termination are stigmatizing and prevent her from securing future employment. She further contends that she is entitled as a matter of due process to a hearing to refute the charges against her. Specifically, petitioner claims that the reasons given for her termination amount to a charge of insubordination. Petitioner further claims violations of the teachers' collective bargaining agreement because her termination was not based upon a formal evaluation of her performance conducted in accordance with the agreement. Petitioner also contends that respondent permitted other speech/language therapists and classroom teachers to evaluate petitioner in violation of the collective bargaining agreement.

Petitioner requests that a memorandum dated September 18, 1990 from the principal, Sarah Moore, which discusses complaints by staff members about petitioner, be removed from her personnel file. She contends that the memo is arbitrary and capricious because it is based on biased interpretations of fellow teachers and because respondent did not request that she review and sign the memo, as required by the collective bargaining agreement.

Petitioner asserts that on her evaluation for the 1989-90 school year, she received an overall summary rating of satisfactory. She claims that her performance in the school year commencing in August 1990 was not fairly evaluated in accordance with the collective bargaining agreement procedures. She also asserts that her First Amendment rights were violated because the principal's recommendation of termination was in retaliation for petitioner expressing her opinion in a September 12, 1990 memo to the principal. Petitioner alleges Ms. Moore recommended her for termination because she was "angry" that petitioner had forwarded a copy of the memo in question to the principal's supervisor.

Respondent admits that it neither formally evaluated nor observed petitioner between August and October 1990, but contends that neither was required prior to discharging petitioner, a probationary employee. Respondent denies that formal evaluations were conducted by classroom teachers unauthorized to conduct the same. Respondent also denies that the September 18, 1990 memo was disciplinary as defined in the collective bargaining agreement, but rather asserts that the purpose of the memo was to inform petitioner of the principal's expectations.

Respondent also denies that the reasons given for petitioner's termination were stigmatizing or that petitioner must be granted a so-called "name-clearing" hearing to refute the accuracy of the charges. Further, respondent contends that it is the policy of the district not to make the reasons for termination public without written authorization from the former employee and, therefore, her ability to obtain other jobs is not threatened. Respondent also denies that the recommendation to the principal's supervisor by the principal was in response to petitioner expressing her views on the manner Ms. Moore was handling the conflict among the staff members. Respondent maintains that petitioner was not deprived of any right or property under State or federal law and that her termination was not arbitrary, capricious or unreasonable.

There is no basis in the record for overturning respondent's action in terminating petitioner's employment. A board of education has broad discretion to terminate the employment of a teacher during the probationary period (James v. Board of Educ. of Cent. School Dist. No 1 of Towns of Orangetown & Clarkstown, 37 NY2d 891, 892, 378 NYS2d 371; Matter of Bergstein et al. v. Bd. of Ed., 34 NY2d 318, 322, 357 NYS2d 465; Matter of Soans, 25 Ed Dept Rep 142, 144; Appeal of Jimenez-Barreca, 27 Ed Dept Rep 346, 348.) However, the dismissal of a teacher may be set aside if the teacher establishes that the termination was for a constitutionally impermissible purpose (James, supra. See also Mt. Healthy City Bd. of Ed. v. Doyle, 429 US 274).

With respect to petitioner's allegation that her First Amendment rights were violated, petitioner has wholly failed to provide a factual basis to substantiate her claim that she was terminated in retaliation for sending a copy of her memo to the principal to the principal's supervisor. Moreover, petitioner admits that she had "constant difficulty" interacting with three of the four other speech/language teachers and one special education teacher. Further, the reasons given for petitioner's termination are supported by additional facts in the record.

Petitioner has also alleged that she is entitled to an evidentiary hearing because the reasons given for her termination are stigmatizing. A public employee is entitled to a due process hearing to clear his or her name only when dissemination of the charges has implicated the employee's good name, reputation, honor or integrity thereby foreclosing the employee's freedom to take advantage of other employment opportunities (Board of Regents v. Roth, 408 US 564, 573; Bishop v. Wood, 426 US 341, 348; Lentlie v. Egan, 61 NY2d 874, 876). Assuming, arguendo, that one of the reasons given for petitioner's termination relates to insubordination, such a charge has been held not to be stigmatizing (Lutwin v. Alleyne, 58 NY2d 889). Further, to be entitled to an evidentiary hearing, an employee must establish that there has been a public disclosure of the stigmatizing charges (Lentlie, supra.; see also Codd v. Velger, 429 US 624, 628.) Respondent has asserted, and petitioner does not dispute, that reasons for termination are not released to third parties without the written authorization of the former employee.

Petitioner's assertion that respondent was required to conduct a formal evaluation of her performance prior to terminating her is without merit. Section 38 of the collective bargaining agreement, relied upon by petitioner, does not limit the discretion of the board to terminate probationary employees. Further, assuming that the collective bargaining agreement mandated a formal evaluation prior to termination of a probationary employee, a board's failure to evaluate a probationary teacher is not a basis for annulling the decision of the board to deny tenure (Hauppauge Classroom Teachers Assn. v. Millman, 35 AD2d 844; 317 NYS2d 461, app. dsmd. 28 NY2d 483; Anderson v. Bd. of Educ., 77 Misc. 2d 904, 354 NYS2d 521, rev'd on other grounds 46 AD2d 360; aff'd 38 NY2d 877, 382 NYS2d 750; Application to Reopen the Appeal of Fusco, 31 Ed Dept Rep 119).

The remaining issue is whether petitioner should have been afforded the opportunity to review and sign the September 18, 1990 memo before it was placed in her personnel file. Section 37.8 of the collective bargaining agreement states that no material derogatory to a teacher's conduct, service, character or personality shall be placed in his/her personnel file unless the teacher has signed such material indicating he/she has had the opportunity to review it. The September 18, 1990 memo lists numerous complaints expressed by the speech and language staff and one of the classroom teachers. It also lists recommendations to be adopted by petitioner and indicated that a follow-up meeting would be scheduled in one month to assess progress. The complaints listed are clearly derogatory to petitioner's conduct and service. The nature of the instructions indicate a view that correction was required on petitioner's part. Therefore, I find that petitioner should have been asked to sign the memo indicating that she had reviewed it before it was placed in her personnel file. Respondent does not dispute that petitioner did not sign the memo. However, she did have the opportunity to review it as evidenced by her October 8, 1990 memo to Ms. Moore in which petitioner described what she was doing to accomplish the goals set forth in the September 18, 1990 memo. Thus, while petitioner has established a basis for the removal of the September 18, 1990 memo from her personnel file, she has not established that this technical violation of the collective bargaining agreement is grounds for her reinstatement.

Petitioner has also not offered any authority for the proposition that a supervisor may not review and consider the comments, complaints and criticism of staff members when addressing whether a teacher is performing as expected.

I have examined petitioner's remaining contentions and find that they lack merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the September 18, 1990 memorandum from Sarah Moore to Patrice Benn-Abbey be removed forthwith from petitioner's personnel file, unless and until petitioner has been afforded an opportunity to sign the same and respond to its contents.

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