September 15, 2021

Appealing the termination of a probationary teacher

In this appeal to the New York State Commissioner of Education a probationary teacher [Petitioner] challenged her termination from her position with the New York City Department of Education's [DOE]

The Commissioner sustained DOE's termination of the Petitioner, observing that "[e]ven if the appeal were not dismissed as untimely, it would be dismissed on the merits."

The Commissioner explained that pursuant to its authority under Education Law §2573(1)(a), 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,” citing Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.

Further, the Commissioner's decision notes that the petitioner has the burden of:

[1] demonstrating a clear legal right to the relief requested; and 

[2] establishing the facts upon which he or she seeks relief in his or her appeal to the Commissioner of Education.

In this instance the Commissioner found that Petitioner has "neither alleged nor proven that her discontinuance was for a constitutionally impermissible reason or that it violated any statute."  Rather, said the Commissioner, Petitioner suggests that DOE acted in bad faith insofar as her discontinuance was the result of the principal’s personal animus toward her but offers no competent proof of this contention other than her own assertions.

DOE generally denied Petitioner’s allegations and submit numerous annual professional performance review [APPR] reports supporting their position that Petitioner’s discontinuance was based on the many “developing” and “ineffective” ratings that she received throughout the school years she served as a probationary teacher. 

Although Petitioner suggested that such feedback was insufficient and that her school administrators did not adequately address various challenges she faced during her probationary service, the Commissioner held that such assertions fail to render DOE's discontinuance of her probationary service impermissible.

Additionally, observed the Commissioner, Petitioner’s assertion that the APPR ratings she received lack a reasonable justification does not provide a basis to annul her discontinuance and reinstate her to a teaching position. 

The Commissioner's decision cited Education Law §3012-c, which section 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.” Accordingly, said the Commissioner, Petitioner’s objection to her APPR ratings is insufficient to establish her entitlement to the relief she requested. 

Addressing Petitioner's request the DOE be directed "to implement a regulation, policy, or procedure” requiring the superintendent to speak with a probationary teacher prior to discontinuance, the Commissioner said that Petitioner had failed to set forth an adequate basis for such relief.  

The Commissioner noted that the record reflected that Petitioner received ample notice that she may be discontinued from her position; that the superintendent’s initial letter invited Petitioner to submit a response; that Petitioner did, in fact, respond to the superintendent’s letter; and that the superintendent considered Petitioner’s response prior to rendering her final determination.  

Accordingly, the Commissioner said that she decline to compel DOE to implement a new procedure, beyond the requirements of Education Law §2573, obligating the superintendent to communicate with a probationary teacher in person or by telephone. 

Opining that Petitioner has failed to carry her burden of proving that DOE discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith, the Commissioner dismissed Petitioner's appeal.

Click HERE to access the full text of the Commissioner's decision.

 

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