Appeal of D.B. from action of the Board of Education of the Longwood Central School District, Dr. Allan Gerstenlauer, Superintendent, and Donald K. Murphy, Principal, regarding termination of a probationary appointment.

Decision No. 16,041

(March 31, 2010)

Law Offices of Frederick K. Brewington, attorneys for petitioner, Valerie M. Cartright, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondents, Susan E. Fine, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges the termination of her probationary appointment by the Board of Education of the Longwood Central School District (“board”), the superintendent and the high school principal (collectively “respondents”).  The appeal must be dismissed.

Petitioner served as a probationary foreign language (Spanish) teacher in the district’s high school during the 2007-2008 and 2008-2009 school years.  By letter dated April 3, 2009, the superintendent advised petitioner that he would recommend termination of her services as a probationary teacher at the board’s May 7, 2009 meeting.

Petitioner requested a written statement of the reasons for the superintendent’s recommendation.  By letter dated April 22, 2009, the superintendent stated that his recommendation was based on petitioner’s “inability to establish and reinforce professional inter-personal boundaries” and “poor professional judgment in interactions” with students.  The superintendent further noted that “[i]nstances of the above have been discussed with you by the High School Principal and documented in your personnel file.”

In a letter to the superintendent dated April 27, 2009, petitioner detailed her accomplishments and the favorable evaluations she had received during her employment in the district.

On May 7, 2009, the board terminated petitioner’s probationary appointment, effective June 30, 2009, in accordance with the superintendent’s recommendation.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 17, 2009.

Petitioner contends that, in terminating her probationary appointment, respondents acted arbitrarily and capriciously, breached district policy and applicable collective bargaining provisions, and discriminated against her in violation of federal and State law.  Petitioner seeks reinstatement to her probationary position.

Respondents maintain that petitioner fails to state a claim upon which relief may be granted and that the decision to terminate petitioner’s employment was not arbitrary or capricious.

Initially, I must address 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

Respondents argue that the appeal must be dismissed for improper service with respect to Principal Murphy.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).  The record indicates that the petition was delivered to respondents’ attorneys as well as to the district’s business office, where service was accepted by the secretary to the assistant superintendent.  While petitioner argues in her reply that this constitutes “proper service” on Mr. Murphy, I disagree.  Although Mr. Murphy was named as a respondent in this appeal, the record indicates that petitioner failed to personally serve him.  Therefore, petitioner’s claims against Mr. Murphy must be dismissed for lack of jurisdiction.

Petitioner asserts that respondents’ decision to terminate her violates federal and State laws “regarding discrimination” and constitutes “a breach of school policy and any [applicable] Collective Bargaining Agreement.”  Petitioner also alleges that respondents have engaged in a “pattern of driving away, either through constructive termination, resignation and/or termination alike, young native-speaking Spanish minority teachers, from their non-tenured positions over a number of years.”  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).  Petitioner has not provided an explanation of the legal basis for such allegations.  Further, other than her conclusory assertions, petitioner offers no proof to support her claims.  Having failed to articulate a clear legal right to relief, petitioner has failed to meet her burden.

Generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’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 (Education Law §3012[1][b]; Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of McBeth, 43 id. 52, Decision No. 14,913).

To support her claim that respondents had no rational basis for their actions, petitioner submits six performance reports completed during her employment.  However, the record before me also indicates that, during petitioner’s probationary appointment, respondents documented situations in which petitioner’s conduct raised serious concerns about her professionalism and judgment, particularly with respect to her interactions with students. 

Although petitioner disagrees with the decision to terminate her services, she does not establish that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription.  Thus, petitioner has failed to meet her burden of proof.

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

THE APPEAL IS DISMISSED.

END OF FILE