Appeal of CHRISTIAN HODGE from action of the Board of Education of the Gates-Chili Central School District regarding employment.

Decision No. 15,992

(October 26, 2009)

Harris Beach, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Gates-Chili Central School District (“board” or “respondent”) to accept his resignation as director of physical education and athletics.  The appeal must be dismissed. 

Petitioner was appointed to a three-year probationary position as director of physical education and athletics, effective July 1, 2005.  On July 19, 2006, petitioner received a year-end evaluation for the 2005-2006 school year with a favorable recommendation, rating his performance as “professionally competent” to “outstanding”  with two improvement areas noted.

On June 18, 2007, petitioner received a year-end evaluation for the 2006-2007 school year and was rated as “requires improvement” in the areas of supervision of instruction and “unsatisfactory” with respect to cooperating with staff in resolving personnel conflicts and maintaining high standards of ethics, honesty and integrity in personal and professional matters.  In the summary of his mid-year review, five serious supervisory concerns were also listed.  Petitioner’s year-end evaluation for the 2007-2008 school year identified a number of petitioner’s strengths, but also indicated seven areas requiring improvement and noted that there were still serious concerns regarding petitioner’s competence in performing his duties. 

In May 2008, the superintendent notified petitioner that he would not be recommended for tenure at the end of his probationary period and offered petitioner the opportunity to extend his probationary period for up to an additional year.  Pursuant to an agreement executed on May 6, 2008, petitioner’s probationary period was extended to July 1, 2009.  By letter dated December 23, 2008, the superintendent notified petitioner that he would not be recommended for tenure and suggested that petitioner seek alternative employment.  On March 31, 2009, the interim superintendent notified petitioner that he would accept petitioner’s resignation in lieu of recommending his termination.  Petitioner tendered his resignation, effective July 1, 2009, and on April 14, 2009, the board accepted it.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 21, 2009.

Petitioner alleges that he was forced to resign and that he was discriminated against.  He contends that he was the only district administrator who did not have the assistant superintendent for instruction present at his evaluation and was the only one supervised by the assistant superintendent for personnel.  Petitioner further contends that he was never given an improvement plan or advised of any unsatisfactory performance prior to his resignation.  Petitioner requests that he be reinstated, approved for tenure and placed under the supervision of the assistant superintendent for instruction. 

Respondent contends that it had the authority to terminate petitioner’s services as a probationary administrator and that petitioner has failed to establish that its decision was in violation of the constitution or any statutory proscription.  Respondent maintains that it used a comprehensive evaluation process to inform petitioner about the strengths and weaknesses of his performance, and that petitioner was given ample opportunities to improve his performance. 

A board of education has the unfettered right to terminate a probationary administrator’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 (Education Law §3012[1][b]; James v. Bd. of Educ. Central School District No. 1 of the Towns of Orangetown and Clarkstown, 37 NY2d 891; Appeal of Cohen, 47 Ed Dept Rep 372, Decision No. 15,728; Appeal of Hall, 46 id. 394, Decision No. 15,543).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

It is undisputed that petitioner resigned and respondent accepted his resignation.  Petitioner asserts that his resignation was tendered under protest and was, therefore, involuntary, although he offers no proof to substantiate that claim.  Even if I were to find that petitioner’s resignation was involuntary, he has failed to establish any legal basis for setting aside respondent’s acceptance of that resignation.  Although he alleges discrimination, petitioner has not provided any evidence

to show that he was being terminated for a constitutionally impermissible reason, or in violation of a statutory proscription.  On the contrary, the record contains evaluations of petitioner’s performance prepared

by respondent’s superintendent indicating weaknesses

in petitioner’s performance that persisted over time.  Therefore, petitioner has failed to prove respondent’s actions in terminating his employment were arbitrary or capricious or otherwise illegal and the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

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