Appeal of JACQUES DORCELY from action of the Board of Education of the Wyandanch Union Free School District and Dr. Frank Satchel, Superintendent, regarding termination of employment.

Decision No. 15,358

(February 8, 2006)

Harriet A. Gilliam, Esq., attorney for petitioner

Law Offices of Larry J. McCord and Associates, attorneys for respondents, Larry J. McCord, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Wyandanch Union Free School District ("board") and Dr. Frank Satchel, Superintendent ("superintendent"), to terminate his employment. The appeal must be dismissed.

The board appointed petitioner as a probationary school psychologist at the Milton L. Olive Middle School effective September 2, 2003. Based on allegations by the building principal that are not specified in the record, the board's interim superintendent recommended that petitioner's probationary employment be terminated on September 19, 2003, and petitioner was placed on administrative leave. After conducting a hearing required by its collective bargaining agreement with the Wyandanch Teachers' Association ("WTA"), the board voted not to terminate petitioner's employment at its January 21, 2004 meeting.

By letter dated January 29, 2004, the district's interim superintendent advised petitioner to resume his duties on February 2, 2004 at the Martin Luther King Elementary School under the building principal's supervision. During March and April 2004, the principal wrote letters of reprimand to petitioner citing his failure to cooperate when asked to cover a class, failure to submit a daily schedule according to guidelines, failure to leave the building during a fire drill, disrespect for her authority and insubordination. In June 2004, petitioner received an evaluation that indicated he needed improvement in six performance areas. Petitioner submitted rebuttal letters to the reprimands and evaluation.

By memorandum dated June 15, 2004, the district's Assistant Superintendent for Human Resources advised petitioner that a recommendation to terminate his employment effective July 31, 2004 would be presented to the interim superintendent and board. A subsequent memorandum changed the effective date of the termination to August 31, 2004. Although the record is unclear, it appears that respondent superintendent began his position sometime in July 2004 and advised petitioner that he was recommending termination. By letter dated July 28, 2004, the superintendent advised petitioner that the reason for recommending termination of his employment was his continued lack of diligence in performing his job-related duties including his failure: to follow the principal's direction; to maintain classroom discipline; to refrain from inappropriate and unprofessional conduct towards school personnel and the building principal; to maintain appropriate, effective and professional communication with the building principal; to maintain required records; to use his time effectively; to set high standards for student behavior; and to demonstrate sensitivity in relating to students. By letter dated August 11, 2004, petitioner submitted a written response to the superintendent's statement of reasons for his recommendation.

On August 18, 2004, the board conducted a termination hearing pursuant to its WTA contract. The seven board members voted unanimously to terminate petitioner's employment effective September 18, 2004. This appeal ensued.

Petitioner asserts that respondents failed to comply with Education Law �3031, that the statement of reasons for his termination was insufficient to enable him to respond, and that respondents' actions were arbitrary and in bad faith. He asks that I direct the board to reinstate him with back pay to his probationary position, or in the alternative, that I direct the superintendent to issue a more detailed statement of reasons for his dismissal and direct the board to conduct another hearing to reconsider his termination. Respondents assert that petitioner's services were properly discontinued pursuant to Education Law �3012(1) and that the statement of reasons was sufficient.

Education Law �3012(1)(a) provides that an employee's services may be discontinued at any time during the probationary period on the recommendation of the superintendent by a majority vote of the board. A board of education has the unfettered right to terminate a probationary teacher's employment for any reason unless the employee establishes that he was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Appeal of McBeth, 43 Ed Dept Rep 52, Decision No. 14,913; Appeal of Wynne, 40 id. 521, Decision No. 14,544; Appeal of Mennella, 39 id. 306, Decision No. 14,245, judgment granted dismissing petition to review, Mennella v. Mills, Sup. Ct., Albany Co., Special Term (Ferradino, J.), September 28, 2001, n.o.r.).

It is undisputed that the superintendent recommended petitioner's termination and that a majority of the members of the board voted to act on the recommendation. Although petitioner alleges that he complained about teachers' treatment of students and the school's failure to address its students' needs, he offers no proof to support a claim that his termination was retaliatory. To the contrary, the record contains reprimands and an evaluation indicating weaknesses in petitioner's performance that persisted over time.  Accordingly, I find that petitioner has not established that he was terminated for a constitutionally impermissible reason.

Education Law �3031 provides that when a recommendation is made to discontinue the services of a probationary teacher, the employee must be given at least 30 days prior notice of the intended recommendation and the date of the board meeting at which the recommendation will be considered. The teacher may request a written statement giving the reasons for the recommendation not later than 21 days prior to the meeting, and the statement must be provided within seven days thereafter.  The reasons must be sufficiently specific to afford the employee an opportunity to make an intelligent and meaningful response to the stated reasons (Appeal of McBeth, 43 Ed Dept Rep 52, Decision No. 14,913; Appeal of Dituri and Blake, 42 id. 363, Decision No. 14,882).

In this case, the superintendent provided petitioner with a statement of the reasons for his recommendation. Although the statement does not reference specific incidents, I conclude that the reasons provided by the superintendent were sufficiently specific to afford petitioner an opportunity to make an intelligent and meaningful response to the stated reasons.  In fact, petitioner provided a detailed response to the superintendent's reasons for recommending termination of his employment.

I am unable to ascertain from the record when the superintendent first advised petitioner that he was recommending termination of his employment or when petitioner was advised of the date on which the board would discuss the recommendation. It appears that a union representative requested a hearing on petitioner's behalf on July 12, 2004, and that a hearing before the board was scheduled for July 27, 2004. After petitioner informed respondents that the union did not represent him in this matter, the hearing was adjourned until August 18, 2004. The superintendent began his employment in July 2004, and it appears that he advised petitioner of his recommendation some time prior to July 27, 2004.

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 has not established that respondents failed to comply with the requirements of Education Law �3031. Moreover, even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date ( Zunic v. Nyquist, et al., 48 AD2d 378, affd 40 NY2d 962; Appeal of Gold, 34 Ed Dept Rep 372, Decision No. 13,347).

THE APPEAL IS DISMISSED.

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