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Decision No. 16,193

Appeal of MICHAEL P. THOMAS from action of the New York City Department of Education and J. David Jimenez, principal, regarding a personnel matter.

Decision No. 16,193

(January 10, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Abra S. Mason, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges actions of the New York City Department of Education (“DOE”) and J. David Jimenez (“Jimenez”) (collectively “respondents”) regarding the placement of certain letters and documents in his personnel file.  The appeal must be dismissed.

Petitioner is a tenured teacher of mathematics at the Manhattan Center for Sciences and Math (the “school”).  He asserts that he reported Jimenez, the school’s principal, for alleged violations that occurred in the 2007-2008 school year, including failure to identify at-risk students as required by Title I of the federal No Child Left Behind Act (20 USC §6300, etseq.) and scoring irregularities on the New York State Regents mathematics examination.[1]

Petitioner claims that, as a result of reporting the alleged violations, he subsequently received three letters regarding his conduct that were placed in his personnel file, dated March 19, 20 and 26, 2008.  A March 27, 2008 letter from the high school superintendent directing that petitioner submit to a medical examination, along with a March 20, 2008 letter from Jimenez requesting such, was also placed in his personnel file.  Additionally, a July 1, 2008 letter from Jimenez agreeing with a May 5, 2008 report by the Special Commissioner of Investigation for the New York City School District (“SCI”) that petitioner inappropriately accessed confidential student data was placed in petitioner’s file, along with the May 5, 2008 report.

In April 2008, petitioner was removed from the school and sent to a “temporary reassignment center.”  On April 17, 2009 petitioner filed a Step 1 grievance, seeking to be restored to service at the school.  The grievance was denied on July 6, 2009, and a copy of the grievance and decision were placed in petitioner’s personnel file.  Petitioner was restored to service at the school on September 8, 2009.  In October 2009, petitioner reviewed his personnel file and, by letter to Jimenez dated October 14, 2009, requested that the above-described letters and documents be removed from the file.  Respondents did not comply with petitioner’s request and this appeal ensued.

Petitioner contends that the letters placed in his personnel file constitute disciplinary action and he, therefore, was entitled to the procedural protections of Education Law §3020-a.  Petitioner requests an order compelling respondents to expunge the letters from his personnel file and to cease placing such letters in his file without first receiving the procedural protections afforded under Education Law §3020-a.

Respondents assert that the appeal is untimely and fails to a state a cause of action.  Respondents also contend that petitioner failed to exhaust his administrative remedies.  Respondents maintain that the collective bargaining agreement precludes grievance of letters in personnel files, regardless of whether they are disciplinary and that I therefore lack jurisdiction to decide this appeal.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).

Petitioner challenges the placement in his file of seven letters, dated March 19, 26, 27, 2008, two dated March 20, 2008, May 5, 2008 and July 1, 2008 and grievance documents dated April 17, 2009 and July 6, 2009.  Petitioner did not commence his appeal until January 8, 2010, more than six months after the date of the most recent document.  Petitioner was aware that the March 19 and 26, 2008 letters, one of the March 20, 2008 letters, and the July 1, 2008 letter were being placed in his personnel file because he signed a statement on each acknowledging such.  Petitioner became aware that the copies of the March 20, 27 and May 5, 2008 letters, the April 17, 2009 grievance and the July 6, 2009 grievance decision were in his file when he inspected it on or about October 13, 2009.  Yet he failed to initiate this appeal for almost three months thereafter.  Petitioner asserts that he was concerned about filing another legal proceeding against the principal without first giving him the opportunity to remove the letters.  Although petitioner wrote to Jimenez requesting that he remove all the letters and documents from his file, such request does not extend the time in which to challenge their inclusion in the file.

Petitioner concedes that the appeal was not filed in a timely manner but argues that the placement of these letters and documents in his personnel file constitutes a continuing wrong.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

Petitioner’s challenge is to each discrete action of placing a letter in his file.  While the parties disagree as to the nature of each letter and document, the placement of letters and grievance documents in a personnel file is not an inherently unlawful action.  Therefore, the continuing wrong doctrine does not apply and the appeal must be dismissed as untimely.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] These events were, in part, the subject of a previous appeal brought by petitioner, Appeal of Thomas, 50 Ed Dept Rep __, Decision No. 16,090.