Decision No. 13,942

(May 18, 1998)

Edward D. Peace, Corporation Counsel, attorney for

respondent, Patricia A. Pancoe, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the results of a teacher examination administered by the City School District of the City of Buffalo ("respondent"). The appeal must be dismissed.

Petitioner is a non-tenured teacher who has served in respondent’s district for 26 years, primarily as a daily substitute. In 1995, respondent adopted a new teacher selection procedure to select teacher candidates for permanent appointment teaching positions in the Buffalo public schools. Petitioner applied to take this examination and an oral interview was administered on January 4, 1996. Petitioner was notified by letter dated June 5, 1996 that she did not qualify for placement on the teacher eligibility list since she received a failing score on her oral interview.

After this notification, petitioner sought review of the district’s determination. By letters dated June 8 and 12, 1996, she contacted respondent’s Director of Personnel regarding her failing score on the examination. She also wrote several letters in July and August 1996 to other individuals requesting their assistance, including a U. S. District Court Judge, respondent and political officials, regarding her examination results.

By letter dated August 2, 1996, respondent’s acting superintendent of administrative services replied to petitioner’s questions regarding the weighted scoring on the examination. Respondent's representative explained the rationale for the 40% lesson plan and 60% interview weight used by the district. Petitioner commenced this appeal on November 1, 1996.

Petitioner alleges that respondent’s determination of failure was improper and inappropriate given her years of successful teaching experience. She seeks reinstatement to a teaching position and back pay. Respondent contends the appeal is untimely. Respondent also contends that there is no legal basis for petitioner’s claim, since it conducted an appropriate examination to evaluate teachers and did not act arbitrarily or capriciously.

Before reaching the merits, I will address two procedural issues. First, it appears that petitioner seeks to bring this appeal as a class appeal on behalf of "all others similarly situated." As a preliminary matter, an appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR 275.2; Appeal of Czerepak, 31 Ed Dept Rep 448). Petitioner must set forth the number of individuals he seeks to represent (Appeal of Sperl, 33 Ed Dept Rep 388) and must show that all questions of law and fact would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362). Petitioner has failed to do either. Therefore, class status is denied.

Respondent also contends that the appeal is untimely since petitioner received the results of her test score on June 5, 1996 and did not commence this appeal until November 1, 1996. Section 275.16 of the Commissioner’s regulations requires that an appeal be initiated within 30 days of the action or decision sought to be reviewed. Petitioner’s correspondence in July and August of 1996 concerning her examination score does not negate the fact that petitioner’s appeal was not filed within the required 30 day time period. Numerous Commissioner's decisions have previously held that a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 id. 93; Appeal of Regan, 34 id. 72; Appeal of Yip, 25 id 296; Appeal of Ritz, 25 id. 240). Therefore, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Respondent acted pursuant to its authority under Education Law "2573(10-a) to hold examinations and prepare eligibility lists for the evaluation and selection of teachers. Respondent’s selection procedures consist of a written examination and an oral interview. Although petitioner received a passing score on the written portion of the examination, she failed to achieve a passing score on the oral interview.

Petitioner claims that the individuals who conducted the oral interview were not properly trained since the August 2, 1996 letter from respondent’s acting assistant superintendent of administrative services stated that the interviewers were notified of the procedure to be utilized in the selection process on January 9 and 23, 1996, after petitioner’s January 4^th interview. She therefore claims that the interviewers were not properly apprised of the selection procedures at the time of her interview. Respondent denies that the individuals who interviewed petitioner did not receive training until after petitioner’s interview, and asserts that these interviewers received their training in November and December of 1995. Although petitioner has alleged bias on the part of the interviewers, and also alleges that respondent’s selection process is arbitrary and capricious, she has failed to prove her allegations. Since I find that respondent’s method of examination was appropriate, there is no basis in the record before me to grant the relief petitioner seeks.

THE APPEAL IS DISMISSED.

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