Appeal of ORNELLA ROSSELLI-DABOOL from action of the Department of Education of the City School District of the City of New York regarding a personnel matter.

Decision No. 18,262

(April 11, 2023)

New York City Law Department, attorneys for respondent, Bruce Rosenbaum, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Department of Education of the City School District of the City of New York (“NYC DOE”) regarding a personnel matter.[1]  The appeal must be dismissed. 

On September 6, 2016, petitioner was appointed to a four-year probationary term as a classroom teacher by NYC DOE.  In 2020, petitioner executed an extension of her probation agreement with NYC DOE, in which she agreed to serve an additional one-year probationary period, from September 1, 2020 to September 1, 2021.  In 2021, petitioner executed another agreement to extend her probation until September 1, 2022.  The agreement specified that NYC DOE would determine whether petitioner was entitled to tenure or granted an additional extension of her probationary term by September 1, 2022.

Petitioner received an overall rating of “effective” on her annual professional performance reviews (“APPR”) for five school years beginning with the 2016-2017 school year.  However, petitioner’s scores in domain 3 of the measures of teacher practice (“MOTP”), a domain that includes assessment of the skills of “questioning and discussion” and “engaging students in learning,” did not improve beyond a “developing” rating overall throughout her probationary period.

By letter dated April 25, 2022, the principal recommended to the superintendent that petitioner be denied tenure, citing petitioner’s consistently low MOTP ratings in domain 3.  The principal stated that, over the past five school years and numerous observations conducted by five separate evaluators, petitioner did not receive an “effective” rating in the school’s two “priority” areas of focus—Domains 3b (“Questioning and Discussion”) and 3c (“Engaging Students in Learning”)—since the 2016-2017 school year.

On April 29, 2022, the principal informed petitioner that she recommended the discontinuance of her probation.  The superintendent adopted this recommendation on July 1, 2022.  This appeal ensued.

Petitioner contends that the discontinuance of her probation was unconstitutional or unreasonable.  Petitioner additionally contends that she acquired tenure by estoppel.  She seeks, among other relief, an order directing NYC DOE “to either grant tenure to [her] or to declare that she has received tenure by estoppel.”

NYC DOE argues that petitioner did not exhaust her administrative remedies and that her petition fails to state a claim upon which relief can be granted.  On the merits, NYC DOE avers that its actions were lawful and that petitioner has failed to establish that it acted arbitrarily and capriciously by discontinuing her probationary service.  Finally, NYC DOE denies that petitioner acquired tenure by estoppel.

First, I must address a procedural issue.  Petitioner submitted an extensive reply that includes new exhibits and arguments that were not included in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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.

Turning to the merits, 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’s assertions—for example, that her discontinuance was “mean-spirited, unjust, unfair, false, biased, and issued in bad faith”; that certain respondents acted in an “unprofessional” manner by failing to respond to emails; and that the principal recommended her discontinuance “behind [her] back”—do not meet this standard (e.g., Appeal of Babcock, 62 Ed Dept Rep, Decision No. 18,212).

Petitioner’s remaining arguments misconstrue the legal standard applicable to discontinuance of a probationary appointment.  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).  Here, there is no evidence that petitioner requested a written statement of reasons pursuant to Education Law § 3031.  Further, the hearing panel decision and case law cited by petitioner—which largely concern charges brought against a tenured teacher under Education Law § 3020-a[2] or the Freedom of Information Law—are inapposite and unpersuasive.[3]

Petitioner’s assertion that the APPR ratings she received lacked a reasonable justification does not provide a basis to annul her discontinuance.  Education Law § 3012-c, which sets forth the procedures and requirements applicable to APPR ratings, provides that “nothing in this section shall be construed to affect the unfettered statutory right of a school district ... to terminate a probationary teacher ... for any statutorily and constitutionally permissible reason []” (Education Law § 3012-c [1]).  Therefore, petitioner’s objection to her APPR ratings is insufficient to establish her entitlement to the relief requested.  As indicated above, petitioner must establish that NYC DOE discontinued her probation for a constitutionally impermissible purpose, in violation of a statute, or in bad faith, which she has not done (Appeal of Gray-Wallace, 61 Ed Dept Rep, Decision No. 18,046; Appeal of Pankey, 60 id., Decision No. 17,962).  Thus, petitioner has failed to prove that NYC DOE discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith (see Matter of Hawkins v Fariña, 171 AD3d 624, 624-625 [1st Dept 2019]; Appeal of Olejnik, 61 Ed Dept Rep, Decision No. 18,130). 

While petitioner has not met her burden of proof, the record reflects that she generally received positive evaluations over the course of her probationary period at P.S. 139 Q and is currently serving a new probationary term at a different school within NYC DOE.  These facts are generally inconsistent with respondent’s denial of tenure.  If petitioner becomes eligible for tenure in her current position, respondent should consider the totality of petitioner’s performance, including her APPR scores, in making that determination.

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

THE APPEAL IS DISMISSED.

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