Matter of K.W. and Creo College Preparatory Charter School

 

K.W. (“complainant”) filed a complaint alleging that Creo College Preparatory Charter School (“Creo” or the “school”) wrongfully terminated her employment.  The complaint must be dismissed.

 

Education Law § 2855 (4) provides that any individual or group may bring to a charter school’s board of trustees a complaint which alleges a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  Thereafter, if the complainant determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, he or she may present that complaint to the Board of Regents (“Regents”), which shall investigate, respond, and issue appropriate remedial orders.  Section 3.16 of the Rules of the Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and to issue appropriate remedial orders.

 

Complainant submitted an Education Law § 2855 (4) complaint to the school’s board of trustees (“board”) on November 4, 2021.  By email dated November 16, 2021, the board noted that it “had the opportunity to review the circumstances that led to the ... decision to end [complainant’s] employment,” and that, “[b]ased on [its] investigation and consideration of the facts,” it was “unable to corroborate” complainant’s allegation that her termination was unlawful.  Complainant then submitted her complaint to the Regents, the school’s authorizer.

 

Complainant alleges, in pertinent part, that school leadership was dismissive, disrespectful, or hostile toward her during her time at Creo.  Complainant also asserts that the school was unreceptive to suggestions or criticisms.  Complainant believes that she was terminated after Creo received her responses to a survey that was critical of school leadership and staff culture.  She additionally complains that the school denied her access to a teaching portfolio she created in the course of her employment.  Finally, complainant asserts that the board did not adequately investigate her allegations.  As relief, complainant seeks monetary relief equal to the compensation she would have received through the end of 2021; an order directing the school to explain its reasons for terminating her employment; and access to her portfolio vis-à-vis the school’s Google Drive account.

 

The complaint must be dismissed for lack of jurisdiction.  Education Law § 2855 (4) provides, in pertinent part, that “[a]ny individual or group may bring a complaint to the board of trustees of a charter school alleging a violation of the provisions of this Article, the charter, or any other provision of law relating to the management or operation of the charter school.”  Complainant has not alleged a violation of any of these sources of law.  Therefore, the complaint must be dismissed for lack of jurisdiction.

 

Even if this matter was within the scope of Education Law § 2855 (4), there is no basis in the record to disturb the board’s determination.  Complainant has not demonstrated that the board lacked discretion to terminate her at-will employment (see Sabetay v. Sterling Drug, Inc., 69 NY2d 329, 333 [1987] [“It is still settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party”]).  Similarly, the school had no legal obligation to provide complainant with an explanation for its decision.  Additionally, to the extent that complainant alleges that Creo terminated her employment as retaliation for feedback she provided in an employee survey, complainant has not alleged, or provided evidence to demonstrate, that any alleged retaliatory action by the school was due to complainant’s membership in a protected class, or that her conduct constituted protected activity.

 

I further note, with respect to complainant’s requested relief, that there is no statute that authorizes the Regents to award monetary damages or costs or reimbursements in a charter school complaint (compare Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244 [so holding under appeal pursuant to Education Law § 310]; Application of Kolbmann, 48 id. 370, Decision No. 15,888 [same]).  Nevertheless, Creo has indicated that it will consider allowing complainant to access her portfolio.  I encourage the parties to reach an amicable resolution of this matter.

 

Finally, although there is no basis in the record to disturb the board’s determination, I urge the school, as I do for all educational institutions in the State of New York, to ensure that it engages in practices that encourage an open and receptive work environment.

 

To the extent they are not specifically addressed herein, I have considered complainant’s remaining contentions and find them to be without merit.

 

THE COMPLAINT IS DISMISSED.

 

IN WITNESS WHEREOF, I, Betty A. Rosa, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this day of 2022.

 

 

 

Commissioner of Education