Appeal of JANE DOE from action of the Board of Education of the Port Byron Central School District regarding a personnel action.

Decision No. 17,627

(April 25, 2019)

Robert T. Reilly, attorney for petitioner, Jacquelyn Hadam, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondent

Elia, Commissioner.--Petitioner challenges her teaching assignment to seven periods of in-school suspension (“ISS”) by the Board of Education of the Port Byron Central School District (“respondent”).[1]  The appeal must be dismissed.

Petitioner is a tenured teacher within respondent’s district.  Petitioner was granted tenure in the mathematics tenure area, effective September 1, 2006.  Prior to the events described in this appeal, petitioner provided direct instruction in mathematics at respondent’s Junior-Senior High School (“high school”).  Respondent’s superintendent alleges that, due to “complaints and questions concerning [petitioner’s] performance,” petitioner was reassigned to the high school’s mathematics extension learning lab for the 2014-2015 and 2015-2016 school years.  According to the record, this program was “a [l]earning [l]ab where students had access to computers for additional assistance in mathematics.”  Petitioner asserts that students in this program work independently and that petitioner was “responsible for monitoring student progress and assisting as necessary.”  The parties dispute whether this assignment involved direct instruction to students; it appears from petitioner’s description of the program that it was instructional in nature.  In any case, master schedules submitted by respondent on appeal indicate that, during the 2014-2015 school year, petitioner was assigned to three periods of direct mathematics instruction (“Math 7”), two periods of mathematics extension learning lab, and one period of supervising the high school’s in-school suspension (“ISS”) room.

There is some contradictory evidence in the record concerning petitioner’s assignment for the 2015-2016 school year.  Thomas Vaughn, the high school principal in the 2015-2016 school year (“principal”),[2] attests that petitioner’s assignment consisted of two periods of mathematics extension laboratory, two periods supervising the ISS room, two “planning periods,”[3] and a “lunch period.”  Respondent also submits a master schedule dated August 25, 2015, which indicates that, as of that date, petitioner was assigned to four periods of mathematics instruction (AIS math), two periods of ISS, one period of study hall, one advisory period, and two planning periods. While this evidence is not consistent, the parties appear to agree that petitioner was assigned to two periods of mathematics extension laboratory in 2015-2016.  Further, I accept the principal’s description of petitioner’s assignment and have disregarded the master schedule for that year, which, created in August 2015, appears to have been superseded by the assignment described by the principal.[4]

For the 2016-2017 school year, petitioner received a teaching assignment consisting of two periods of Math 7, two periods of mathematics extension laboratory, two periods of study hall, one advisory period,[5] two planning periods, and lunch.  The record reflects that this assignment included two periods of direct instruction.  The superintendent indicates that he consented to the assignment, including the direct instruction, although he states that he “had some misgivings” about it.

In September 2016, the superintendent received a complaint from a parent concerning petitioner’s refusal to allow students to bring backpacks to the classroom.  The superintendent avers that he also learned in September 2016 that petitioner had been “grad[ing] students in her seventh grade mathematics classes at an extremely low level.”

On January 26, 2017, respondent brought disciplinary charges against petitioner pursuant to Education Law §3020-a based upon allegations of corporal punishment.  Specifically, student witnesses alleged that petitioner had physically struck them in the fall of 2016.  The matter proceeded to a hearing.

In a decision dated May 12, 2017, a hearing officer dismissed the charges against petitioner, finding that the district failed to meet its burden to prove, by a preponderance of the evidence, that petitioner engaged in the charged conduct.  The hearing officer ordered that “all charges ... be dismissed” and that petitioner “be reinstated with full back pay.”  Petitioner was thereafter provided with back pay and returned to payroll.

In a letter dated May 28, 2017, the high school principal informed petitioner that her assignment for the remainder of the 2016-2017 school year would, other than a period of lunch and two periods of planning, consist of seven periods of assignment to the high school’s in-school suspension (“ISS”) room.  According to petitioner, the duties of a teacher in the ISS room are to “enforce school rules, monitor and document [student] behavior in class, take [students] to the bathroom and lunch at the appropriate times and monitor students serving lunch detention.”

In a letter dated June 9, 2017, the high school principal “summarize[d]” a meeting held with petitioner on the previous day.  The letter stated that petitioner would “be responsible for providing instruction to students assigned to [i]n-[s]chool [s]uspension.”

In a letter to the superintendent dated June 12, 2017, petitioner alleged that respondent’s assignment of her to seven periods of ISS was illegal and that she did not consent to such assignment.  Petitioner asked “to be fully restored to a position teaching [m]athematics.”  Respondent did not accede to petitioner’s request, and this appeal ensued.

Petitioner argues that, by assigning her full-time to ISS, respondent has failed to implement the hearing officer’s decision.  Petitioner further argues that assignment to ISS is outside of her tenure area.  Petitioner additionally asserts that her assignment constitutes discipline, and that respondent could not impose such discipline without complying with the procedural protections of Education Law §3020-a.  In this respect, petitioner contends that her assignment violates respondent’s past practice of assigning a teacher to no more than one “duty period” – such as in-school suspension, lunch, or study hall – per year.  Petitioner seeks a finding that her assignment was unlawful for the reasons identified above.

Respondent argues that the appeal is without merit and must be dismissed.  Initially, respondent argues that certain of petitioner’s allegations allege a binding past practice and that such claims are within the exclusive jurisdiction of the Public Employment Relations Board.  Respondent also argues that petitioner’s claim that respondent violated a collective bargaining agreement (“CBA”) between respondent and the Port Byron Teachers’ Association (“PBTA”) must be resolved through the grievance procedure in the CBA, the exclusive means of settlement resolution.  On the merits, respondent denies that petitioner’s assignment violates her tenure rights, constitutes discipline, or violates the terms of the hearing officer’s decision and award.

First, I must address the procedural issues.  Petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Petitioner also requests permission to submit a “supplemental affidavit” in which she discusses events which occurred subsequent to the filing of this appeal; specifically, her assignment for the 2017-2018 and 2018-2019 school years.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Upon review of this affidavit, which concerns events which occurred after the parties’ pleadings were submitted in this appeal, I will exercise my discretion and accept petitioner’s supplemental affidavit to the extent it addresses petitioner’s assignment in the 2017-2018 and 2018-2019 school years.  Such evidence is relevant to a determination of whether this appeal has been rendered moot by a change in petitioner’s assignment in a subsequent school year. However, I decline to accept respondent’s sur-reply, as it does not respond to the information in the supplemental affidavit but, rather, improperly buttresses allegations that should have been asserted in an answer (see Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Butler and Dunham, 50 id., Decision No. 16,103; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).

Next, although respondent seeks dismissal of petitioner’s claims regarding alleged violations of the CBA and improper practice charges, petitioner clarifies in her reply that she is “not alleg[ing] a violation of the [CBA] ... [nor] alleging an improper practice pursuant to Civil Service Law §200 et seq[.] in this Education Law §310 appeal.”  In any event, I note that the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining and improper practice claims, including past practice claims, in the Public Employment Relations Board (Civil Service Law §205[5][d]; see Matter of New York City Transit Authority v. New York State Public Employment Relations Board, et al., 19 NY3d 876).  Indeed, the PBTA president states in an affidavit that the PBTA “intends to file an improper practice charge with the Public Employment Relations Board based on [respondent’s] violation of the long-standing past practice.”  Therefore, to the extent the petition could be construed to allege such claims, petitioner has disclaimed any intention to pursue them and I otherwise lack jurisdiction over such claims.

Turning to the merits, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

First, petitioner’s claim that respondent failed to implement the hearing officer’s decision pursuant to Education Law §3020-a is without merit.  Petitioner argues that the hearing officer’s order that petitioner “be reinstated” encompasses a return to the same assignment which she held prior to the §3020-a hearing.  However, petitioner has pointed to no authority suggesting that a superintendent and board of education are unable to exercise their ability to reassign teachers at the conclusion of a §3020-a hearing.  Indeed, the Appellate Division in Matter of Taylor v. Hammondsport Cent. Sch. Dist. (267 AD2d 987) held that a teacher could be transferred upon conclusion of a §3020-a hearing that resulted in a $1,000 fine, reasoning that “Education Law §3020-a neither limits the authority of [the district] to assign [the teacher] to nonteaching duties nor requires respondent to restore [the teacher] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”  Therefore, I find petitioner’s claim in this respect to be without merit.

Next, petitioner alleges that her assignment is outside of her tenure area.  A board of education has broad discretion in assigning members of its professional staff, so long as employees’ tenure rights are not infringed upon (Matter of Van Heusen v. Board of Education, City School District of the City of Schenectady, et al., 26 AD2d 721; Appeal of Dunshee, 44 Ed Dept Rep 414, Decision No. 15,216; Appeal of Dillon, 43 id. 333, Decision No. 15,010).  There is no general requirement that a school district assign a teacher to a particular classroom or school (Appeal of Ginnane, 43 Ed Dept Rep 239, Decision No. 14,983; Matter of Sacks, 22 id. 45, Decision No. 10,876).  Changes of assignments are permissible provided the assignments are within the same tenure area (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Matter of Gould, 17 id. 283, Decision No. 9,604).

Here, petitioner argues that her tenure area is in mathematics, an academic tenure area, and that assignment to ISS is inconsistent with such tenure area (see 8 NYCRR §30-1.7).  However, it is well-settled that tenured teachers may be assigned to duties concerning the supervision of children, which have “traditionally fall[en] squarely within the responsibility of all members of the teaching staff, regardless of the area in which their tenure is secured” (Matter of Brink, 7 Ed Dept Rep 113, Decision No. 7,852; see also Matter of Garry, 19 Ed Dept Rep 359, Decision No. 10,166; Matter of Middleton, 16 id. 368, Decision No. 9,434; Matter of Mishkoff, 15 id. 288, aff’d sub nom. Matter of Mishkoff v. Nyquist, et al., 57 AD2d 649; Matter of Wettenstein, et al., 78 St Dept Rep 49, Decision No. 6,343) [“supervision of children on school premises ... is always a part of the duties of all members of the teaching and supervisory staff to the extent reasonably required by school authorities”]). 

The Appellate Division has endorsed this principle in two seminal cases.  First, in Matter of Van Heusen v. Board of Education, City School District of the City of Schenectady, et al. (26 AD2d 721), the Appellate Division, Third Department held that a tenured mathematics teacher could be reassigned to supervise a study hall consistent with his tenure as a secondary school teacher.  Second, in Matter of Mishkoff v. Nyquist, et al. (57 AD2d 649), the Appellate Division, Third Department held, citing Van Heusen, that a tenured elementary school teacher could be reassigned as a “floating teacher” in grades one through five to replace any elementary classroom teacher within the district who might be absent and, when no such teacher was absent, to perform classroom teaching activities.  Although the court recognized that “later developments concerning ‘vertical’ and ‘horizontal’ tenure areas” had occurred after its decision in Van Heusen, the court nevertheless found that such developments “left undisturbed” Van Heusen’s “basic holding” that assignment to supervise study hall “did not infringe on the tenure rights of a secondary school teacher” (Matter of Mishkoff v. Nyquist, et al., 57 AD2d 649).  In other words, the Third Department ruled that the changes to the tenure areas established in Part 30 of the Rules of the Board of Regents following the Court of Appeals’ decision in Matter of Baer v. Nyquist (34 NY2d 29) did not affect its holding in Van Heusen.  Thus, I reject petitioner’s argument that Van Heusen is no longer good law because it was decided based on the pre-Part 30 tenure areas. 

In any case, contrary to petitioner’s argument, it is irrelevant that petitioner is a tenured mathematics teacher while the teacher in Van Heusen possessed tenure in a general secondary tenure area.  Subsequent to Van Heusen, the Commissioner has repeatedly held that a teacher in a special subject area may be assigned to nonteaching duties (see Matter of Garry, 19 Ed Dept Rep 359, Decision No. 10,166; Matter of Mishkoff, 15 id. 288, aff’d sub nom. Matter of Mishkoff v. Nyquist, et al., 57 AD2d 649; Matter of Brink, 7 id. 113, Decision No. 7,852).  For example, in Matter of Garry (19 Ed Dept Rep 359, Decision No. 10,166), a tenured teacher objected to her assignment to monitor study halls and supervise students in the school cafeteria and library.  While the record in that case was unclear as to whether music was a special tenure area in the respondent’s school district, the Commissioner stated that, even assuming that music was a special tenure area, petitioner could be reassigned to such duties because they concerned the supervision of children.  The Commissioner held that this reasoning was applicable to all teachers, regardless of their tenure area.  Similarly, in Matter of Brink (7 Ed Dept Rep 113, Decision No. 7,852), the Commissioner held that a tenured teacher could be reassigned to “full-time study hall supervision” because, as indicated above, “supervision of children traditionally falls squarely within the responsibility of all members of the teaching staff, regardless of the area in which their tenure is secured.”  Thus, I find that, as in Matter of Brink and Matter of Garry, petitioner’s reassignment to an ISS room involving the supervision of children does not violate her tenure rights.

In response, petitioner argues that Appeal of McSweeney (33 Ed Dept Rep 541, Decision No. 13,141) stands for the proposition that “assign[ment] to supervise [an] in-school suspension room” may constitute “an inappropriate use of [a] school board’s discretion and ultimately violate [] the teacher’s tenure rights.”  Appeal of McSweeney, however, is distinguishable from the instant appeal.  In that appeal, the Commissioner held that assignment of a teacher in the elementary tenure area to an “in-school restriction room” was an assignment outside of the teacher’s tenure area because it “involved providing educational services in kindergarten through twelfth grade.”  In fact, the record in that appeal indicated that since the teacher was so assigned, all students in the in-school restriction room had been in grades 7-12. In other words, the Commissioner held in Appeal of McSweeney that the assignment of a teacher in the elementary tenure area to an in-school suspension room without her consent was an unlawful assignment outside of her tenure area where the teacher was “spending most of her professional time providing education services to secondary school students” (Appeal of McSweeney, 33 Ed Dept Rep 541, Decision No. 13,141).

Here, the parties agree that the district treats an ISS assignment as a “duty period” such as lunch or study hall.  The superintendent indicates that despite the fact that the principal in a June 9, 2017 letter advised petitioner that she would “be responsible for providing instruction to students assigned to In-School Suspension,” the ISS assignment is an “administrative or supervisory assignment” that does not involve the provision of instruction.  The principal who sent the letter also attests that the ISS assignment is a supervisory assignment.

In an affidavit submitted with this appeal, petitioner describes her ISS assignment as follows: “I have new students sign an ‘ISS Procedures’ sheet ... enforce school rules, monitor and document their behavior in class, take them to the bathroom and lunch at appropriate times and monitor students serving lunch detention.”  Petitioner further alleges that she does not provide instruction to students assigned to the ISS room.  On this record, therefore, I agree with respondent that, unlike the in-school restriction room assignment in Appeal of McSweeney (33 Ed Dept Rep 541, Decision No. 13,141), the ISS assignment is a supervisory assignment and not an assignment to provide educational services to students in ISS.  Therefore, I am not persuaded that an assignment to ISS that involves supervision of elementary school students would constitute an assignment outside of petitioner’s tenure area.  As noted above, in Matter of Brink (7 Ed Dept Rep 113, Decision No. 7,852), the Commissioner concluded that the responsibility to supervise children on school property extends to all members of the teaching staff, regardless of tenure area.  It follows, therefore, that any teacher may be assigned to supervise students at any grade level, without violating the tenure laws.

However, even assuming, arguendo, that the ISS assignment involved instruction, the record shows that the ISS room, unlike the in-school restriction room in Appeal of McSweeney, was not established to serve both elementary and secondary students and the occasional inclusion of elementary students was de minimis.  The superintendent attests that elementary school students have been assigned to the ISS room “on a very infrequent basis,” and petitioner similarly alleges that the ISS room “occasionally” serves elementary students. The superintendent explains that the district “normally has a substitute monitor a separate ISS [r]oom for elementary students.”  Petitioner does not respond to, or otherwise refute, this assertion.  Therefore, given that the ISS room is intended to serve secondary students, I do not find that the occasional assignment of elementary students to the ISS room renders the ISS assignment outside of petitioner’s tenure area.  The record reflects that respondent’s school district is a small school district with limited staffing, and it is not surprising that, on occasion, the district might have to assign elementary students to a secondary student ISS room in order to ensure that they are supervised. Consequently, petitioner’s claim that her assignment violated her tenure rights is without merit.

I also find that the record does not support petitioner’s argument that respondent assigned her to ISS in retaliation for her successful defense in the §3020-a proceeding.  In a text message to the President of the Port Byron Teachers’ Association made after the hearing officer’s decision, the superintendent stated that:

I always said not to gloat in victory or be ill tempered in loss. Really, what plans we have going forward were never really different unless she was dismissed.

The record also contains a second text message from the superintendent in which he stated, in what appears to have been a joking manner, that once the matter was referred to the legal office of the New York State United Teachers, he and the PBTA president would not have to discuss petitioner’s grading policies for five years.  While these messages suggest that the superintendent did not intend to return petitioner to classroom teaching upon completion of the §3020-a proceeding, they do not support a finding that the superintendent assigned petitioner in retaliation when she successfully defended herself against disciplinary charges in the §3020-a proceeding.  Other than her conclusory allegations about retaliation, petitioner has provided no proof of retaliatory intent and, therefore, has failed to meet her burden of proof on this claim.  

Petitioner further argues that the action taken by respondent was disciplinary in nature and, as such, could not be effectuated without the process required by Education Law §3020-a.  A school board’s decision to reassign a tenured employee based on the district’s educational needs does not constitute discipline for which procedural due process must be provided under Education Law §3020-a as long as the employee’s rights are not infringed upon (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Matter of Middleton, 16 id. 368, Decision No. 9,434; Matter of Mishkoff, 15 id. 288, aff’d sub nom. Mishkoff v. Nyquist, et al., 57 AD2d 649). 

The Court of Appeals has held that Education Law §2566(6), which contains identical language concerning the transfer authority outlined in Education Law §1711 (i.e., the statute applicable to the superintendent of a central school district such as respondent’s district), gives a superintendent of schools “absolute” authority to transfer teachers from one grade of the course of study to another grade in such course “in the absence of contractual provision ... or of malice, bad faith, gross error or prejudice” (Matter of Adlerstein v. Board of Education of City of New York, 64 NY2d 90; see also Matter of Lefkowitch v. Nyquist, 29 Misc2d 14; Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,298, aff’d sub nom. Board of Education of the Poughkeepsie School District, et al. v. Elia, et al., Supreme Court, Albany County; Fisher, J.; Judgment granted dismissing petition to review; Nov. 1, 2018, n.o.r.; Matter of McLernon, 16 id. 13, Decision No. 9,280; Matter of Woicik, 2 id. 171, Decision No. 7,019). 

With respect to the interaction between tenure rights and transfer, as noted above, the concept of tenure does not entitle a teacher to assignment to a specific class upon his or her return following a §3020-a proceeding, nor does it preclude assignment of such teacher to nonteaching duties (Matter of Adlerstein v. Bd. of Educ. of City of New York, 64 NY2d 90; Matter of Taylor v. Hammondsport Cent. Sch. Dist., 267 AD2d 987).  It is well-settled that a teacher may be assigned to nonteaching duties on a full-time basis without violating the teacher’s tenure rights (Matter of Taylor v. Hammondsport Cent. Sch. Dist., 267 AD2d 987; Matter of Van Heusen v. Bd. of Educ. of the City Sch. Dist. Of the City of Schenectady, et al., 26 AD2d 721; Matter of Middleton, 16 Ed Dept Rep 368, Decision No. 9,434; Matter of Mishkoff, 15 id. 288, aff’d sub nom. Mishkoff v. Nyquist, et al., 57 AD2d 649).

On this record, I find that petitioner’s assignment to the ISS room for seven periods in May 2017 was within respondent’s broad discretion to make assignments of teachers, and petitioner has not proven that such assignment was in violation of any contractual provision or was affected by malice, bad faith, gross error or prejudice.  Prior to her suspension, petitioner was assigned to two periods of Math 7, two periods of the mathematics extension laboratory, two periods of study hall, and two planning periods.  Petitioner attests that, upon her return, she was assigned seven periods of ISS, two planning periods and lunch.  The superintendent asserts that when the §3020-a proceeding concluded in May 2017 and petitioner returned to her position, a decision had to be made on what her assignment would be for the remainder of the school year.  He asserts that, in order to maintain continuity in the program for students, petitioner was assigned to supervisory duties; specifically, to ISS.  The principal corroborates the superintendent’s allegations in this regard, asserting that, in May 2017, he and the superintendent decided not to assign petitioner to the math classes in which she provided direct instruction at the start of the 2016-2017 school year because “the students had been instructed by a long term substitute teacher” for the vast majority of that school year. 

Given the fact that there was approximately a month of school left, the principal explains, “it made more sense to continue the substitute who was being successful as opposed to disrupting the educational program at such a late date” in the school year.  Petitioner does not explain why this decision was unreasonable or educationally unsound, other than reiterating her general claim that her assignment was disciplinary in nature.  I find, therefore, that the assignment of petitioner to seven periods of ISS for the remainder of the 2016-2017 school year was justified by the district’s need to ensure continuity in the mathematics classroom and to avoid disruption of the education of students at that late point in the school year.

Petitioner also challenges the legality of her continued assignment to seven ISS periods in the 2017-2018 and 2018-2019 school years.  It is undisputed that, in the 2017-2018 school year, petitioner continued to be assigned to ISS and was not assigned to any instructional duties.  In her supplemental affidavit, petitioner attests that she continued to be assigned to seven periods in the ISS room and that she was again assigned to serve as an “ISS teacher” in the 2018-2019 school year.  Petitioner argues, among other things, that the alleged disciplinary nature of her assignment is demonstrated by the fact that she has been assigned to supervise the ISS room for seven periods per day, and that there is a “long-standing past practice” that teachers are assigned “no more than one (1) duty period” per year.  The president of the PBTA indicates in an affidavit that the PBTA has consistently challenged and resolved assignments where a teacher has been assigned to more than one “duty period,” which consists of a non-teaching assignment such as ISS, lunch, or study hall.  The PBTA president further indicates that this occurred on six occasions.

Respondent has rebutted this assertion by submitting master schedules which demonstrate that staff members have been consistently assigned to two or three duty periods from the 2010-2011 school year through the 2016-2017 school year.  Respondent’s records further show that one teacher had five duty period assignments in a single year, while another had four.  In addition, petitioner herself was assigned multiple duty periods in each of the 2014-2015, 2015-2016, and 2016-2017 school years, and there is no evidence in the record that she filed a grievance or otherwise objected to those assignments when they were made.

In response to this contention, petitioner offers a reply affidavit from the PBTA president, who argues that her original sworn statement was only based upon information known to her.  Further, the PBTA president asserts that she “cannot vouch for the validity of the [m]aster [s]chedules” and identifies two errors therein.  First, the PBTA president asserts that one teacher who respondent asserts had five duty periods during the 2013-2014 school year actually had, according to the master schedules, three such assignments.  Second, although the master schedule indicates that the PBTA president had three duty periods for the 2012-2013 school year, the PBTA president denies “having three (3) duty assignments for the 2012-2013 school year.”  The PBTA president, in contrast to her original affidavit, asserts in the reply affidavit that “[i]n any event, the Master Schedules demonstrate that in all but for [sic] a handful of cases, the District has adhered to the 6:1 teaching schedule, or the 5:2 teaching schedule.”

On this record, I find that respondent typically assigned one to three ISS classes to staff with, on one occasion, as many as four such classes assigned.  While the PBTA president indicates that she cannot vouch for the validity of the master schedules, she does not deny or contradict the information contained therein except for the two exceptions noted above.  I further find that the PBTA president’s credibility is diminished on this particular issue based upon her differing assertions as to the number of duty assignments which district teachers received. 

Petitioner additionally argues that prior decisions of the Commissioner concerning the extent to which assignments may be considered disciplinary in nature support her argument that respondent’s transfer constituted discipline within the meaning of Education Law §3020-a (Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373; Matter of Richardson, 24 id. 104, Decision No. 11,333, pet. to rev dismissed sub nom. Raymond, et al. v. Ambach, Sup Ct, Albany Co. 5/23/85, n.o.r.; see generally Holt v. Bd. of Educ., Webutuck Cent. School Dist., et al., 52 NY2d 625).  Respondent argues that the prior decisions in Appeal of Irving (39 Ed Dept Rep 761, Decision No. 14,373) and Matter of Richardson (24 Ed Dept Rep 104, Decision No. 11,333, pet. to rev dismissed sub nom. Raymond, et al. v. Ambach, Sup Ct, Albany Co. 5/23/85, n.o.r.) are distinguishable, relying in part on the subsequent decision in Appeal of Dillon (43 Ed Dept Rep 333, Decision No, 15,010) in which the Commissioner found that the unique facts of Appeal of Irving were not present in that case.

The decisions in Appeal of Irving and Matter of Richardson must be understood within the framework established by the Court of Appeals in Matter of Adlerstein v. Board of Education of City of New York (64 NY2d 90).  As noted above, the Court of Appeals ruled in that case that a superintendent has absolute discretion to assign teachers, except where the assignment violates a contractual provision or is affected by malice, bad faith, gross error or prejudice.  Although there is no explicit reference to “bad faith” in Appeal of Irving, a finding of bad faith is implicit in the Commissioner’s finding that the school district used reassignment as a means of discipline rather than bringing charges pursuant to Education Law §§3020 and 3020-a.  Matter of Richardson is less clear, since the Commissioner did not discuss the legality of the transfer in that decision, or order any relief relating to the transfer.  Instead, the Commissioner ordered that a letter constituting a disciplinary reprimand be removed from the petitioner’s file, without prejudice to any other appropriate action that the respondent may take.  Despite a citation to Matter of Richardson in Appeal of Irving, it is not clear that the Commissioner made any determination about the legality of the transfer in Matter of Richardson.

On this record, petitioner’s circumstances are distinguishable from those of the administrator in Appeal of Irving (39 Ed Dept Rep 761, Decision No. 14,373) and the teacher in Matter of Richardson (24 Ed Dept Rep 104, Decision No. 11,333, pet. to rev dismissed sub nom. Raymond, et al. v. Ambach, Sup Ct, Albany Co. 5/23/85, n.o.r.).  Crucially, in both Appeal of Irving and Matter of Richardson, the boards of education took either disciplinary action (in Richardson, a “letter which, by its terms, constituted an administrative reprimand ...”) or a substantial step toward disciplinary action (in Irving, issuance of a counseling letter which, according to the Court of Appeals, may be “used to support a formal charge of misconduct within three years of the occurrence which the evaluation addresses” [Holt v. Bd. of Educ., Webutuck Cent. School Dist., et al., 52 NY2d 625]).  Specifically, in Appeal of Irving, the district issued a counseling letter and, on the very next day, summarily removed the principal from her position and involuntarily transferred her to an assistant principal position in another school. The Commissioner in that appeal held that the “sole reason” for the administrator’s transfer was “her alleged misconduct.”  In addition, the district’s actions in that case involved a substantial demotion of the principal to an assistant principal position, where she was “made the subordinate of another principal.”  On those facts, the Commissioner found the transfer to be disciplinary in nature, implicitly finding that the assignment was made in bad faith.

Similarly, in Matter of Richardson, a school nurse whose responsibilities included making arrangements for required physical examinations for student athletes was issued a letter of reprimand when a student on the football team who had not completed his physical examination collapsed and died.  The letter advised her that she was being removed from her position as school nurse and assigned to a different high school.  Although the Commissioner did not clearly make a determination about the legality of that transfer, there was, as in Appeal of Irving, an implicit finding of bad faith.

Here, by contrast, petitioner was not issued a counseling letter or written reprimand, nor was she summarily removed from her position and transferred.  Rather, petitioner was merely reassigned to nonteaching duties at the start of the school year following her return after the §3020-a proceeding.  That reassignment did not involve issuance of a counseling letter or make her subordinate to another teacher, as in Appeal of Irving, nor did respondent issue a letter of reprimand relating to the conduct that led the superintendent to make the reassignment, as in Matter of Richardson.  Instead, the reassignment simply increased petitioner’s number of assigned “duty periods” from two at the start of the 2016-2017 school year (excluding lunch and two planning periods which are common to both schedules) to seven.  Thus, several of the unique facts that led the Commissioner to conclude that the respondents’ respective actions in Matter of Richardson and Appeal of Irving constituted improper discipline are not present here.

Petitioner has also failed to demonstrate that her transfer fell within one of the other potential grounds for invalidating a transfer articulated by the Court of Appeals in Matter of Adlerstein v. Bd. of Educ. of City of New York (64 NY2d 90) – namely, violation of a contractual provision, malice, bad faith, gross error or prejudice.  With respect to violation of a contractual provision, the record indicates that the current collective bargaining agreement between the PBTA and the district is silent with respect to teacher assignments, notwithstanding the fact that the PBTA has unsuccessfully attempted to negotiate such a provision.  Thus, petitioner has not established a contractual violation on this record.

Petitioner has also failed to prove that her reassignment was the result of malice or prejudice or was affected by gross error.  While petitioner makes conclusory allegations that the superintendent was motivated by personal animus against petitioner, she has provided no proof of such animus.  Although the text messages and other evidence reflected that, prior to the §3020-a proceeding, the superintendent decided that petitioner should not return to instructional duties, this alone does not demonstrate animus in light of the fact that the superintendent had adjusted petitioner’s assignment to classroom teaching in prior school years based on various concerns with petitioner’s performance. 

Finally, petitioner has failed to prove that her reassignment was made in bad faith.  The superintendent attests in his affidavit that, in September 2016, he had received parental and student complaints about grading students at a low level and petitioner’s refusal to permit students to enter her classroom with backpacks.  He states that, in his judgment, this conduct was unnecessary and arbitrary.  He then states that the investigation and filing of the §3020-a charges confirmed his belief that “petitioner’s harsh treatment of students was simply unacceptable and [that] she should be reassigned to alternative duties.”  The superintendent explains his reasons for reassigning petitioner to seven ISS periods as follows:

The decision to reassign petitioner was based on what in my judgment and the judgment of other administrators was a pattern of unsuccessful teaching over a period of years.  In particular, I was concerned about parental and student complaints about unfair grading practices, the singling out of students for punishments, the high number of referral [sic] of students to the office for discipline, the inability to maintain appropriate control and decorum in the classroom, her lack of improvement in her various teaching assignments and her relatively low score on the APPR rating rubric.

He further explains that:

The underlying issue, however, was petitioner’s diminishing level of performance as a classroom teacher over a period of several years.  The district had adjusted the teaching assignment and eventually removed petitioner from the higher level mathematics assignments.  Petitioner was reassigned over a period of years to a mix of classes, then to remedial classes and seventh and eighth grade mathematics.  Petitioner’s performance did not improve and future changes were in the process of being considered when the incidents occurred in October 2016.

As to when he decided that petitioner should be assigned to nonteaching duties, the superintendent states:

There is no question in my mind that I had made a decision at the beginning of the school year, particularly after the events involving grading and the refusal to permit students to bring backpacks to the classroom, that there was a continuing need for a further change in Jane Doe’s work assignments.  However, I had not made a decision as to what that assignment would actually look like until after the Hearing Officer’s decision was rendered.

The principal generally corroborates the superintendent’s allegations, stating in an affidavit that he “speak[s] with the [s]uperintendent ... on a daily basis whenever he is present” and that he was “aware that the [s]uperintendent had some misgivings about the ability of [petitioner] to be successful” in her assignment for the 2016-2017 school year.  The principal further avers that, following the conclusion of the §3020-a hearing in May 2017, “the two events involving grading practices and student backpacks ... were considered” when he and the superintendent assigned petitioner to the ISS room.  He attests that he reviews grades on a weekly basis and states that he was told by a guidance counselor that at least one student was driven to tears about a low grade given by petitioner.  The principal further attests that he has personally received complaints from parents, students and staff concerning their treatment by petitioner, and that he received one such complaint from a parent concerning petitioner’s refusal to permit students to bring backpacks into her classroom.

The record also indicates that after charges pursuant to Education Law §3020-a were filed, the superintendent and the PBTA president entered into settlement negotiations.   The PBTA president alleges that, during this process, the superintendent stated in sum and substance:  “I don’t understand why [petitioner’s] not taking the deal.  She’s not going back into the classroom.”  According to the PBTA president, the superintendent repeated similar statements on at least six occasions between February 1, 2017 and May 12, 2017.  The superintendent does not deny these allegations.

As a whole, the evidence in the record shows that, in the 2015-2016 school year, the superintendent made substantial adjustments to petitioner’s teaching assignment to reduce the number of periods in which she provided instruction from three Math 7 classes and two math extension classes in the 2014-2015 school year, to two math extension learning laboratory classes and no periods of direct classroom instruction in the 2015-2016 school year.  At the start of the 2016-2017 school year, upon the recommendation of the principal, petitioner was assigned to two Math 7 classes and two math extension learning laboratory classes.  Through this reassignment back to direct classroom instruction, petitioner was afforded an opportunity to demonstrate that she could successfully carry out such assignment.  However, as the superintendent and principal attest, prior to the §3020-a proceeding, petitioner had been the subject of complaints from parents and students about not allowing students to bring backpacks into her classroom and her low grading practices.  The superintendent and principal each attest that it was those events, neither of which were pursued by respondent as misconduct under Education Law §3020-a, that, in combination with their past concerns about petitioner’s performance, precipitated the decision to assign petitioner solely to nonteaching duties.

Given this evidence, I am not persuaded on this record that the superintendent acted in bad faith by reassigning petitioner to seven periods of ISS.  Unlike Appeal of Irving and Matter of Richardson, there was no single precipitating event here that clearly constituted misconduct and led to a formal disciplinary reprimand, an admonition which could be the subject of a later §3020-a proceeding, or summary removal of petitioner from her position.  Instead, the record merely establishes that petitioner’s reassignment was based on multiple concerns about her performance over time that led to past reductions in petitioner’s assignment to direct classroom instruction. Moreover, it was not unreasonable for the superintendent to question whether petitioner should continue to be assigned to instructional duties based upon the backpack complaints and complaints about grading in September 2016 when she had just been afforded the opportunity to demonstrate her ability to successfully perform such duties. As stated above, petitioner’s assignment to non-teaching duties for the school year following her return from the §3020-a proceeding did not, in and of itself, violate petitioner’s tenure rights (Matter of Taylor v. Hammondsport Cent. Sch. Dist., 267 AD2d 987), and petitioner has not proven that the superintendent acted in bad faith by making the reassignment for the 2017-2018 and 2018-2019 school years.

In sum, petitioner has failed to meet her burden of proving that respondent’s assignment in this case was arbitrary or capricious or in violation of law.  I have considered the parties’ remaining claims and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE