Appeal of COURTNEY BABCOCK from action of David C. Banks, as Chancellor of the Department of Education of the City School District of the City of New York; Meisha Ross Porter, as former Chancellor of the Department of Education of the City School District of the City of New York; the Panel for Educational Policy of the Department of Education of the City School District of the City of New York; Vivian Orlen, as Manhattan High School Superintendent; Maximillian Re-Sugiura, as Principal of the High School of Art and Design; and Kaity Li as Assistant Principal of Social Studies at the High School of Art and Design, regarding a personnel matter.

Decision No. 18,212

(November 22, 2022)

New York City Law Department, attorneys for respondent, Dan Tarolli, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from actions of David C. Banks, as Chancellor of the Department of Education of the City School District of the City of New York; Meisha Ross Porter, as former Chancellor of the Department of Education of the City School District of the City of New York; the Panel for Educational Policy of the Department of Education of the City School District of the City of New York NYC DOE; Vivian Orlen, as Manhattan High School Superintendent (“superintendent”); Maximillian Re-Sugiura, as Principal of the High School of Art and Design (“principal”); and Kaity Li as Assistant Principal of Social Studies at the High School of Art (“assistant principal”) (collectively, “respondents”) regarding a personnel matter.  The appeal must be dismissed.

In September 2017, NYC DOE hired petitioner as a probationary teacher at the High School of Art and Design in Manhattan (“high school”).  During her time at the high school, petitioner taught Social Studies.  On November 28, 2020, petitioner agreed to serve an additional one-year probationary period commencing February 1, 2021 and ending February 1, 2022.

By letter dated October 8, 2021, the assistant principal requested a meeting “regarding improper usage of an instructional period.”  The letter informed petitioner that she could bring a union representative because the meeting could lead to disciplinary action.

On October 14, 2021, petitioner, along with a union representative, met with the assistant principal.  The assistant principal informed petitioner she had received multiple complaints from students about her conduct in class, including excessive use of her personal cell phone and tangential or inappropriate comments.  The assistant principal further indicated that she had personally observed petitioner on her phone during an instruction period on one occasion and had received three emails from petitioner sent during instructional periods.  By letter dated November 9, 2021, petitioner denied the assistant principal’s allegations, complaining that she had not been shown the student complaints.

By letter dated December 2, 2021, the superintendent informed petitioner that she was discontinuing petitioner’s probationary appointment, which would end at the close of business on January 31, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 17, 2022.

Petitioner alleges that respondent discontinued her probationary appointment in bad faith.  For relief, petitioner seeks annulment of her discontinuance, reinstatement to a comparable position in a different high school with retroactive pay and benefits, and the removal of any notation or “problem code” from her personnel file.[1]  Petitioner additionally seeks an order directing respondents to require the superintendent to offer to speak with a teacher before deciding to deny certification of completion of probation.

Respondents assert that petitioner has not met her burden of proving that her probationary appointment was discontinued for an improper purpose.  Respondents further assert that they acted reasonably and in good faith.

Pursuant to its authority under Education Law § 2573 (1) (a), NYC DOE may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]; see Education Law §§ 3012-c [1], 3012-d [9]; 8 NYCRR § 30-2.1 [b]; Kahn v New York City Dept. of Educ., 18 NY3d 457 [2012]; Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of Nicholaou-Guirguis, 32 id. 439, Decision No. 12,879).  The Commissioner has defined “bad faith” as “[d]ishonesty of belief, purpose, or motive” (Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner has not proven that respondent discontinued her probation in bad faith.  As indicated above, a petitioner must prove that school district personnel acted with a “belief, purpose, or motive” that was “[d]ishonest [].”  Petitioner alleges several instances of conduct in support of her argument that school personnel harbored personal animus towards her; i.e., that the assistant principal made a “critical remark” that amounted to a “veiled threat”; that the assistant principal “screamed” at petitioner on more than one occasion; and that multiple respondents, including the principal, did not read materials contained in a tenure binder submitted by petitioner.  Other than her own assertions, however, petitioner produces no other proof of these interactions, which respondents deny.  Therefore, on this record I cannot find that respondents acted in bad faith in denying completion of petitioner’s probation.[2]

Petitioner’s remaining arguments misconstrue the legal standard applicable to discontinuance of a probationary appointment.  For example, petitioner argues that respondents lacked a “rational, factual basis” for her discontinuance and faults the principal for failing to “explain” why she “was being fired.”  However, subject to the conditions identified above, a probationary teacher’s appointment may be discontinued “at any time and for any reason …” (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]).  Thus, absent a request for a written statement of reasons pursuant to Education Law § 3031, school districts are not required to demonstrate the rationality of their decision to discontinue a probationary appointment (compare Appeal of Rickson, 62 Ed Dept Rep, Decision No. 18,147).  The hearing panel decision and decisions of the Commissioner cited by petitioner are inapposite as they concern charges brought against a tenured teacher under 3020-a.[3]

I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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