Petitioners awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit. But these reviews “stem[ ] solely from the [CBA]” and constitute “ an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, ... which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573(1)(a)” ( Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 767, 530 N.Y.S.2d 79, 525 N.E.2d 725 [1988] [emphases added] ); they are not administrative remedies that petitioners were required to exhaust before litigating the termination of their probationary employment. As a result, petitioners' lawsuits, brought more than four months after the dates when their probationary service ended, are time-barred.
"As a general rule, one who objects to the acts of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Matter of Sybalski v. Delaney, 140 A.D.3d 776, 777, 30 N.Y.S.3d 910 [internal quotation marks omitted] ). A board of education has the right to terminate the employment of a probationary teacher or principal at any time and for any reason, unless the teacher or principal "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 N.Y.2d 763, 765, 530 N.Y.S.2d 79, 525 N.E.2d 725 ; see Education Law §§ 2573[1], 3012[1] ; Sweeny v. Millbrook Cent. Sch. Dist., 130 A.D.3d 1011, 1012, 13 N.Y.S.3d 576 ; Matter of Johnson v. New York City Dept. of Educ., 73 A.D.3d 927, 927, 900 N.Y.S.2d 737 ). Here, the evidence submitted by the respondents conclusively established that the terminations of the probationary employment of the petitioners were based on "ineffective" ratings that the petitioners had received on their annual professional performance reviews, and were not for a constitutionally impermissible purpose, violative of a statute, or done in bad faith (see Matter of Johnson v. Katz, 68 N.Y.2d 649, 650, 505 N.Y.S.2d 64, 496 N.E.2d 223 ; Matter of Zarinfar v. Board of Educ. of the City School Dist. of the City of N.Y., 93 A.D.3d 466, 467, 939 N.Y.S.2d 702 ; Rivers v. Board of Educ. of City School Dist. of City of N.Y., 66 A.D.3d 410, 411, 886 N.Y.S.2d 159 ).
Petitioner further argues that, even assuming, arguendo, that he was not tenured, the respondent acted in an arbitrary and capricious fashion in that it, inter alia, did not comply with Education Law §§ 2509, 2573, 3012, 3019-a, 3031 or its own policies and procedures as set forth in the "Rating Pedagogical Staff Members" manual. It is well settled that the termination of a probationary teacher may not be disturbed, unless 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 the City School Dist. of the City of N.Y., 71 NY2d 763; Matter of Thomas v Abate, 213 AD2d 251 [1st Dept 1995). Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith (Matter of Thomas v Abate, 213 AD2d 251, supra; see also Matter of Blum v Quinones, 139 AD2d 509 [2d Dept] appeal dismissed 72 NY2d 908).
Petitioner further argues that, even assuming, arguendo, that he was not tenured, the respondent acted in an arbitrary and capricious fashion in that it, inter alia, did not comply with Education Law §§ 2509, 2573, 3012, 3019-a, 3031 or its own policies and procedures as set forth in the "Rating Pedagogical Staff Members" manual. It is well settled that the termination of a probationary teacher may not be disturbed, unless 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 the City School Dist. of the City of NY, 71 NY2d 763; Matter of Thomas v Abate, 213 AD2d 251 [1st Dept 1995). Judicial review of such a determination is limited to an inquiry as to whether the termination was made in bad faith ( Matter of Thomas v Abate, 213 AD2d 251, supra; see also Matter of Blum v Quinones, 139 AD2d 509 [2d Dept] appeal dismissed 72 NY2d 908).
Following DeMilio, the Second Department has held that a probationary teacher seeking review under the Board of Education by-laws of a decision to terminate, may not commence an Article 78 proceeding where the reaffirmation of the decision to terminate was made more than four months after the date of termination ( Schulman v Board of Educ. of the City of New York, 184 AD2d 643, 644 [2d Dept. 1992]). In addition, Schulman found "no merit to the petitioner's argument that the review of the administrative determination served to extend the four month limitations period" ( Schulman at 644, citing Frasier v Board of Educ. of the City School Dist. of the City of New York, 71 NY2d 763). In Frasier, where a probationary teacher was terminated but reinstated after the Chancellor reversed an earlier determination on review, the Court held that the right of probationary teachers to a review of the Chancellor's decisions stems solely from the collective bargaining agreement which "establish[es] an optional procedure under which a teacher may ask the Chancellor to reconsider and reverse his initial decision," because under the section of the Education Law concerning the hiring of teachers, "a decision not to grant tenure to a probationary teacher, once made, is intended to be final" and "in all respects terminat[es] the employment of a probationer" ( 71 NY2d at 766, 767).
Respondent notes that an argument could be made that she was aggrieved on November 15, 2004, the last day she worked as a teacher in any capacity (Memo in Supp. p. 7). Respondent also relies on Frasier v Board of Educ. of the City School Dist. of the City of New York, 71 NY2d 763 (1988). In Frasier, the question concerned whether a probationary teacher who was terminated but then reinstated when the chancellor reversed the earlier determination on review, lost his rights as a probationary employee between the time he was terminated and reinstated.
ds that the petition should be denied and the proceeding dismissed because: (a) Ladson's claims regarding the July 20, 2003 termination of her probationary services are time-barred by the four-month statute of limitations; (b) the decisions rating Ladson's performance as unsatisfactory and terminating her probationary services were supported by ample evidence in the record (including the three audits undertaken of Ladson's performance), and that said decisions were neither arbitrary nor capricious in any respect; and (c) Ladson, as a probationary employee, had no property right to her position, was afforded a full and fair review of the decisions in question, and failed to establish a violation of her due process rights. It is well settled that the Board has the right to terminate a probationary employee at any time and for any reason, unless the employee 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 the City School Dist. Of the City of New York, 71 NY2d 763, 765, citing Matter of Venes v Community School Board of Dist. 26, 43 NY2d 520, 525-526 [probationary employees have no property rights in their positions and may be terminated for almost any reason, or for no reason at all]). An Article 78 proceeding must be commenced within four months after the determination to be reviewed becomes final and binding (see, CPLR 217;Yarbough v Franco, 95 NY2d 342, 346).
While private contracts and collective bargaining agreements may create for an employee a right to a pre-termination hearing not automatically provided as a matter of law, these privately created rights are "neither constitutional nor statutory." See Swartz v. Bd. of Educ., 146 A.D.2d 576, 577 (2d Dep't 1989) (stating that a public school teacher's right to termination review, created by a collective bargaining agreement, was "neither constitutional nor statutory"); accord Corredor v. United Fed'n of Teachers, 162 F.3d 1147, No. 97-7488, 1998 WL 639403, at **1 (2d Cir. Apr. 6, 1998); Frasier v. Bd. of Educ., 71 N.Y.2d 763, 767 (1988). Plaintiff's collective bargaining agreement merely sets forth the a contractually agreed-upon procedure for grievances by employees.
The petitioner appeals. “It is a basic policy underlying Education Law § 2573(1)(a) that the responsibility for selecting probationary teachers and evaluating them for appointment on tenure should lie with the Board of Education upon appropriate recommendation of its professional administrators” (Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 766, 530 N.Y.S.2d 79, 525 N.E.2d 725 ). A teacher's employment may be terminated during his or her probationary period for any reason, or no reason at all, and without a hearing, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith (see Matter of Speichler v. Board. of Coop. Educ. Servs., Second Supervisory Dist., 90 N.Y.2d 110, 114, 659 N.Y.S.2d 199, 681 N.E.2d 366 ; Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d at 765, 530 N.Y.S.2d 79, 525 N.E.2d 725 ; James v. Board of Educ. of Cent. School Dist. No. 1 of Towns of Orangetown & Clarkstown, 37 N.Y.2d 891, 892, 378 N.Y.S.2d 371, 340 N.E.2d 735 ; Sweeny v. Millbrook Cent. Sch. Dist., 130 A.D.3d 1011, 1012, 13 N.Y.S.3d 576 ; Matter of Capece v. Schultz, 117 A.D.3d 1045, 1046, 986 N.Y.S.2d 533 ).
Petitioner's challenge to his termination as a probationary teacher is time-barred because it was not brought within four months of the effective date of termination ( see CPLR 217[1]; Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 N.Y.2d 763, 530 N.Y.S.2d 79, 525 N.E.2d 725 [1988]; Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 915 N.Y.S.2d 26 [2010], affd., 18 N.Y.3d 457, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2012] ).