Appeal of LAURIE C. WRIGHT from action of the Board of Education of the Moriah Central School District regarding termination of employment.

Decision No. 15,347

(January 24, 2006)

Harris Beach LLP, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the manner in which the Board of Education of the Moriah Central School District ("respondent") terminated her employment. The appeal must be dismissed.

On July 22, 2003, respondent appointed petitioner as a probationary teacher of the visually impaired to provide services to a specific student pursuant to his Individualized Education Program. Subsequently, the district reassigned petitioner to other special education teaching duties.

By letter dated March 25, 2004, the superintendent notified petitioner that he would recommend that petitioner's probationary employment be terminated at respondent's May 18, 2004 meeting.

By letter dated April 6, 2004, petitioner requested a statement of the reasons for the recommendation. By letter dated April 8, 2004, the superintendent notified petitioner that he was recommending termination of her employment because she was unsuccessful in her assignment as a teacher of the visually impaired, that her formal reviews were mixed with regard to classroom management skills, and that she was unable to work cooperatively with faculty and staff.

According to the petition, on April 9, 2004, petitioner filed a grievance with the Moriah Teachers Association regarding the superintendent's recommendation and filed an appeal with respondent on May 6, 2004.

At its May 25, 2004 meeting, respondent accepted the superintendent's recommendation and voted to terminate petitioner's probationary services. By letter dated June 2, 2004, the superintendent notified petitioner of the decision to terminate her, effective June 30, 2004. This appeal ensued. Petitioner's request for interim relief was denied on July 29, 2004.

Petitioner argues that the reasons stated in the superintendent's April 8, 2004 letter for his recommendation to terminate her are untruthful, not supported by the facts and phrased in a way that will have an adverse effect on her ability to obtain employment. Petitioner also alleges that she was both improperly removed from her appointed position and terminated. Petitioner requests that the superintendent's letter of explanation be expunged, that he be directed not to verbally disparage her professional qualifications and that I address the manner in which she was removed.

Respondent argues that the appeal is untimely and that I lack jurisdiction to the extent petitioner submitted this issue for resolution through a contractual grievance procedure. Respondent further contends that petitioner was properly terminated from her position as a probationary teacher and that petitioner has failed to sustain her burden of proof.

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 O' Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

In this case, the record does not indicate when petitioner received the June 2, 2004 letter notifying her of her termination. Even allowing an additional five days for mailing, petitioner's appeal was not commenced within 30 days. Since petitioner offers no information to establish good cause to excuse her delay in commencing this appeal, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. A board of education has the unfettered right to terminate a probationary teacher's employment for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Jackolski, 43 Ed Dept Rep 418, Decision No. 15,038; Appeal of Wynne, 40 id. 521, Decision No. 14,544). 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). Petitioner merely alleges that the superintendent's stated reasons for his termination recommendation are untruthful and not supported by the facts. She has neither alleged nor established that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription. Thus, upon my review of the record, I find that petitioner has failed to meet her burden of proof.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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