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Decision No. 15,329

Appeal of JANE RUBINSTEIN from action of the Board of Education of the Garden City Union Free School District regarding termination of employment.

Decision No. 15,329

(November 23, 2005)

Jeffrey F. Pam, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent, Barbara P. Aloe and Robert B. Kronenberg, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Garden City Union Free School District ("respondent") to terminate her employment. The appeal must be dismissed.

On August 13, 2002, respondent approved petitioner's probationary appointment as an art teacher effective September 1, 2002 and ending August 31, 2004. Petitioner's appointment was for a two-year probationary period because she previously had been granted tenure by the district during a prior period of employment.

By letter dated March 26, 2004, respondent's superintendent notified petitioner that he intended to recommend to respondent that her probationary appointment be terminated effective July 1, 2004. The letter also informed petitioner that respondent would vote on this recommendation at its meeting on April 27, 2004, that she could request that the district furnish her with a written statement of reasons for the recommendation and that she could file a written response no later than seven days prior to the meeting.

On or about March 28, 2004, petitioner requested that the superintendent provide the basis for his recommendation. By letter dated April 14, 2004, the superintendent responded with four reasons: failure to properly manage the classroom environment; failure to work cooperatively with a special education aide; failure to adequately supervise students; and failure to adequately address improper student behavior. By letter to respondent dated April 18, 2004, petitioner responded to the superintendent's April 14 letter. By letter dated April 28, 2004, the assistant to the superintendent notified petitioner that respondent had voted at its April 27 meeting to terminate her employment effective June 30, 2004. This appeal ensued.

Petitioner asserts that the superintendent's April 14 letter violated Education Law �3031(a) because it was not provided within seven days of her request. In addition, she asserts that the superintendent's reasons were vague and had never been cited as areas needing correction. Petitioner also states that she had never been reprimanded or placed on an improvement plan for such conduct. Petitioner further contends that respondent's decision to deny tenure breached the Collective Bargaining Agreement ("CBA"), denied her due process and was irrational, arbitrary and in bad faith in light of her allegedly outstanding record. She seeks an order vacating respondent's determination and a remand to respondent for reconsideration denovo.

Respondent maintains that petitioner has failed to meet her burden of establishing a clear legal right to the relief requested. Respondent asserts that it acted lawfully and substantially complied with all notice requirements, and that its actions complied with the Education Law and due process. It further contends that its decision had a rational basis and was not made in bad faith. Respondent also asserts that petitioner failed to exhaust administrative remedies and the Commissioner lacks jurisdiction to address alleged violations of the CBA.

I will first address the procedural issues. In her reply, petitioner states that she is not seeking to enforce her rights under the CBA. Therefore, I need not address the provisions of the CBA or respondent's jurisdictional defense.

Petitioner submitted additional affidavits with her reply, an amended memorandum of law, and a reply memorandum of law. 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Similarly, an amended or reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,740; Appeal of Muench, 38 id. 649, Decision No. 14,110).

Respondent also submitted an additional affidavit of the assistant principal in response to petitioner's additional affidavits. 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 for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).

In this case, neither party received prior permission to submit additional documents. Thus, while I have reviewed the parties' submissions, I have not accepted materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). In addition, 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.

Education Law �3031(a) provides that when a recommendation is made that the services of a teacher employed on probation be discontinued, the teacher shall be given notice of such recommendation and the date of the board meeting at which it is to be considered, at least 30 days prior to that board meeting. Not later than 21 days prior to the meeting, the teacher may request a written statement of reasons for the recommendation, which must be furnished within seven days. The teacher may file a written response to the statement not later than seven days before the board meeting.

In this case, the superintendent notified petitioner by letter dated March 26, 2004 of his intention to recommend to respondent that her probationary appointment be terminated effective July 1, 2004, and that respondent would vote on the recommendation at its April 27 meeting. Petitioner received that letter on March 27, 2004, 31 days before the April 27, 2004 board meeting in accordance with �3031(a). Petitioner's references to the New York Civil Practice Law and Rules ("CPLR") are inapplicable to this proceeding and therefore do not require any additional notice.

Petitioner states that by letter dated March 28, 2004, she requested that the superintendent provide the basis for his recommendation. This letter is not in the record either at Exhibit N to the petition, as petitioner purports, or elsewhere. Instead, Exhibit N contains an undated, but detailed, letter to respondent in care of its president.

Nevertheless, respondent admits that it did not furnish a written statement of reasons until April 14, more than seven days after petitioner's request. Respondent asserts that its response was delayed by the spring vacation. While I do not agree that the intervening spring vacation excuses or justifies respondent's delay, I find that petitioner had ample time to formulate a response prior to the board meeting, especially since the superintendent met with her on March 26 and discussed his concerns. Moreover, I find that respondent had ample opportunity to consider petitioner's response, dated April 18, prior to its April 27 meeting. Under these circumstances, I conclude that petitioner was not harmed by the delay, and thus not entitled to any relief (seee.g.Appeal of Dituri and Blake, 42 Ed Dept Rep 363, Decision No. 14,882; Appeal of Gold, 34 id. 372, Decision No. 13,347). I remind respondent, however, of its responsibility to comply with all statutory requirements.

Petitioner also contends that the reasons provided were vague. When a probationary employee requests a statement of reasons why he or she is not being granted tenure, the reasons supplied must be sufficiently specific to afford the employee an opportunity to make an intelligent and meaningful response to the stated reasons (seeMatter of Farrell v. Bd. of Educ. of Carmel Cent. School Dist. No. 2, et al., 64 AD2d 703; Matter of Rathbone v. Bd. of Educ. of Hamilton Cent. School Dist., 47 AD2d 172, affd 41 NY2d 825; Appeal of Dituri and Blake, 42 Ed Dept Rep 363, Decision No. 14,882; Appeal of Ruff, 33 id. 648, Decision No. 13,181; Matter of Gray, 14 id. 370, Decision No. 9022). Based on my review of the record, I find that the superintendent's response was specific enough to permit petitioner to provide a detailed response to respondent, including her letter of April 18, 2004 (seeMatter of Rathbone v. Bd. of Educ. of Hamilton Cent. School Dist., 47 AD2d 172, affd 41 NY2d 825; Appeal of Scott, 44 Ed Dept Rep 339, Decision No. 15,192).

Education Law �3012(1)(a) provides that "the service of a [teacher] . . . may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education . . . ." Generally, a board of education has the unfettered right to terminate a probationary teacher'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 statutory proscription (James, et al. v. Bd. of Educ. of Central School District No. 1 of the Towns of Orangetown and Clarkstown, et al., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Scott, 44 Ed Dept Rep 339, Decision No. 15,192; Appeal of Mahoney, 43 id. 483, Decision No. 15,060).

Here, petitioner does not allege that respondent violated a statute or terminated her for a constitutionally impermissible purpose. Rather, she contends that the recommendation to deny her tenure was arbitrary, irrational and in bad faith, especially in light of her outstanding record.

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 Romeo , 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Although there were many positive comments in the record about petitioner's teaching abilities, she has failed to allege or establish that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription. Therefore, I must conclude that petitioner has failed to meet her burden of proof.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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