Appeal of CAROLYN J. PRICE from action of the Board of Education of the Roosevelt Union Free School District regarding employment.

Decision No. 15,573

(April 20, 2007)

Berkman, Henoch, Peterson & Peddy, P.C. attorneys for petitioner, Gilbert Henoch, Esq., of counsel

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Roosevelt Union Free School District (“respondent”) to accept her resignation as a teacher in the district.  The appeal must be dismissed.

By letter dated September 30, 2002, the district’s Director of Personnel (“director”) informed petitioner that respondent had approved her probationary appointment as a Pre-Kindergarten - 6 teacher at its meeting on September 25, 2002.  The letter stated that the probationary period would end on September 2, 2005.

On December 18, 2003, upon its superintendent’s recommendation, respondent changed petitioner’s tenure area to special education, retroactive to September 3, 2002, to reflect her actual assignment.  By letter dated January 5, 2004, the director informed petitioner of this decision.

By letter dated March 2, 2005, the superintendent notified petitioner, pursuant to Education Law §3031, that he intended to recommend to respondent the termination of petitioner’s probationary appointment effective May 30, 2005.  The superintendent also stated that he would accept petitioner’s resignation in lieu of recommending her termination on April 28, 2005 if she submitted an irrevocable letter of resignation before April 13, 2005.  By letter dated April 11, 2005, petitioner tendered her resignation as a special education teacher effective June 29, 2005.  By letter dated May 18, 2005, the director informed petitioner that respondent had accepted her resignation on April 21, 2005.  This appeal ensued.

Petitioner asserts that she was entitled to a two-year probationary period that should have ended on September 2, 2004, that respondent permitted her to teach beyond that date, and that therefore she is entitled to tenure by estoppel.  She claims that her supervisor issued frivolous and unfair evaluations upon which the superintendent relied in making his recommendation.  Petitioner also claims that the superintendent failed to provide sufficient notice of the reasons or acts of alleged misconduct in accordance with Education Law §2590-j(7) in recommending termination of her probationary appointment.  She contends that respondent has deprived her of due process and her constitutionally protected right to employment, that she was forced to resign, and that her resignation was invalid.  Petitioner seeks reinstatement as a full-time tenured teacher effective June 29, 2005 with back pay and benefits.

Respondent contends that the petition fails to state a claim upon which relief can be granted and is untimely.  It contends further that the superintendent provided petitioner with proper notice of his recommendation to terminate her probationary appointment in accordance with Education Law §3031.  Respondent denies that petitioner is entitled to, or obtained, tenure by estoppel or is entitled to reinstatement.

     Initially, I must address several procedural issues beginning with petitioner’s reply.  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).  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.

     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).  Respondent asserts that the appeal is untimely because it was initiated on July 11, 2005, more than two and a half months after respondent accepted petitioner’s letter of resignation at its April 21, 2005 meeting and almost two months after the director’s May 18, 2005 letter to petitioner notifying her of respondent’s action accepting her resignation.  However, petitioner’s resignation letter specified that the resignation was not effective until June 29, 2005.  Petitioner apparently remained a district employee until that date and respondent provides no evidence to the contrary.  Since petitioner initiated the appeal within 30 days of June 29, I will not dismiss the appeal as untimely.

     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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Petitioner contends that she is entitled to tenure by estoppel.  Tenure by estoppel “results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term” (Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446, citing Matter of Lindsey v. Bd. of Educ. of Mt. Morris Cent. School Dist., et al., 72 AD2d 185).  To determine whether petitioner is entitled to tenure by estoppel, I must first determine the correct length of her probationary term.

     Education Law §3012(1)(a) provides in pertinent part:

Teachers and all other members of the teaching staff . . . shall be appointed . . . for a probationary period of three years . . . provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state . . . and who was not dismissed from such district . . . as a result of charges brought pursuant to subdivision one of section three thousand twenty-a of this chapter, the probationary period shall not exceed two years.

Petitioner claims that when respondent granted her a probationary appointment in 2002, she was entitled to a two-year, rather than a three-year, probationary term because she had previously taught in the City School District of the City of New York (“NYC”) for six years, from September 1996 until 2002.  Petitioner contends in her memorandum of law that “the recitation of that continuous service for six years as a teacher in [NYC] contained in her application put the Respondent on notice that she had acquired tenure by estoppel in [NYC] and, therefore, her probationary period in Roosevelt was two years.”  Petitioner contends further that respondent acknowledged that her probationary term was two years because in the January 5, 2004 letter notifying her that it had changed her tenure area from elementary to special education, the director stated that the “probationary period remains the same, from September 3, 2002 – September 2, 2004.”

     In her undated employment application submitted to the district sometime in 2002, petitioner merely indicated that she taught in a school in NYC from “1996-present.”  Yet, petitioner now argues that respondent should have inferred from this that she had received tenure by estoppel from NYC.  Petitioner’s argument is specious.  Petitioner unambiguously responded “no” to the question on the application of whether she had ever received tenure anywhere in New York State.  Therefore, any possible inference was negated by petitioner’s own unequivocal statement that she had never received tenure.  Moreover, the statute does not impose upon respondent a duty to ferret out the nuances of a teacher’s employment history.  As respondent notes, there could have been breaks in petitioner’s employment, leaves of absence, part-time service or any number of other unknown factors in petitioner’s employment with NYC during her six years there that would have precluded tenure.  Petitioner provided no records, at that time or since, evincing her appointment in the NYC or the nature of that appointment.  Accordingly, petitioner has failed to prove that she was entitled to a shortened probationary period of two years.

     I also disagree that respondent acknowledged that petitioner’s probationary period was two years.  Almost every document pertaining to petitioner’s employment within the district refers to a three-year probationary period, from September 3, 2002 – September 2, 2005.  By letter dated September 6, 2002, the first correspondence to petitioner in the record, the director informed petitioner that the superintendent intended to recommend that respondent approve her probationary appointment as a Pre-Kindergarten - 6 teacher at its next public meeting on September 25, 2002.  The letter specified that the probationary period would be from September 3, 2002 – September 2, 2005, and requested that petitioner sign, date and return one of the two copies of the letter, which she did on September 8, 2002.  Although the record does not contain a copy of respondent’s resolution appointing petitioner, the director’s September 30, 2002 letter stated that respondent had approved her appointment and that “the probationary period ends September 2, 2005.”  In addition, two formal classroom observation reports conducted by petitioner’s supervisor on November 5, 2004 and January 10, 2005, and signed by petitioner, list her tenure date as September 2, 2005.

     The only exception is the January 15, 2004 letter in which the director notified petitioner that respondent had changed her tenure area.  As noted above, the letter stated the “probationary period remains the same, from September 3, 2002 – September 2, 2004” (emphasis added).  This letter copies verbatim the language from respondent’s December 13, 2003 resolution.  It seems much more likely, as respondent contends, that the year “2004” was a typographical error, since the same would be 2002 – 2005, as all the other employment documents in the record clearly state.

     Accordingly, I find that petitioner has failed to meet her burden of proving that she was entitled to a reduced probationary period of two years or that she was granted a two-year probationary period by respondent.

     Petitioner relies on Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446, in support of her position.  However, in Gould, the teacher unquestionably had been granted actual tenure in another district, she had so indicated on her employment application, and the district was aware of it.  Therefore, Gould was legitimately entitled to a reduced probationary period of two years.  None of those factors are present in this case.

     Having established that petitioner was not entitled to a reduced probationary period, her status was as a non-tenured teacher approaching the end of her probationary period.  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 (James, et al. v. Bd. Of Educ. of Cent. School Dist. 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 Dorcely, 45 Ed Dept Rep 383, Dec. No. 15,358; Appeal of Rubenstein, 45 id. 299, Dec. No. 15,329).  Here, petitioner does not allege that respondent violated a statute or terminated her for a constitutionally impermissible purpose. 

     Education Law §3012(2) requires written notice of a negative recommendation for tenure by the superintendent not less than 60 days preceding the expiration of the probationary period.  Education Law §3031(a) provides that when a recommendation is made that the services of a probationary teacher 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.

     Here, although petitioner alleges that that the superintendent failed to provide her with sufficient notice of the reasons or acts of alleged misconduct in recommending the termination of her probationary appointment, the superintendent complied with both provisions.  His letter dated March 2, 2005 notifying petitioner of his intention to recommend her termination was six months prior to the expiration of her probation period on September 2, 2005, and 57 days prior to the April 28, 2005 meeting at which respondent was to consider his recommendation.  I note that petitioner never requested a written statement of the reasons for the superintendent’s recommendation, which she was entitled to do pursuant to Education Law §3031(a).  I also note that petitioner alleges that the superintendent failed to comply with Education Law §2590-j(7), but that section applies to those employed in NYC and is inapplicable here.

     Finally, petitioner seeks to invalidate her resignation.  She alleges that she submitted her letter of resignation under threat and coercion.  However, nothing in the record supports that contention.  The superintendent’s March 2, 2005 letter stated that he was “willing to recommend acceptance of your resignation in lieu of recommending termination.  Therefore, should you choose to resign rather than have your services terminated, please provide me with an irrevocable letter of resignation not later than April 13, 2005.”  By petitioner’s own admission, she resigned because she “did not want to be embarrassed, did not want the children, did not want coworkers or parents or others to see such a display.”  Without more, I am compelled to find that petitioner’s actions were voluntary and deliberate, submitted in response to the notification of termination.

     Furthermore, petitioner’s reliance on Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446 is again misplaced.  In that case, the court held that Gould’s resignation was ineffective and could be rescinded because she was unaware that she had obtained tenure by estoppel and therefore did not voluntarily waive her protected tenure rights.  In addition, the school district also shared the mistaken belief that Gould was a probationary teacher.  In contrast, petitioner in this case has no tenure rights.  Therefore, she did not involuntarily waive any protected interest and her resignation should be considered voluntary and irrevocable.

     I have considered petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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