Decision No. 17,239
Appeal of PUNAM SAXENA, from action of the New York City Department of Education, regarding an unsatisfactory rating.
Decision No. 17,239
(November 1, 2017)
Zachary W. Carter, Corporation Counsel, attorney for respondent, Daniel J. LaRose, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the actions of the New York City Department of Education (“NYCDOE”), in giving her an unsatisfactory annual performance rating. The appeal must be dismissed.
Petitioner is a tenured teacher of science employed at a high school within the City School District of the City of New York (“district”). On June 19, 2013, petitioner received an unsatisfactory annual rating (“U-rating”) following three unsatisfactory observation reports dated December 17, 2012, May 17, 2013, and June 5, 2013. This appeal ensued.
Petitioner asserts that her U-rating was the result of gross error, bad faith and malice by district administrators and that she has been the subject of harassment and humiliation as retaliation for her refusal to change students’ grades. Petitioner seeks reversal of her U-rating, a complete stop to the harassment, reimbursement for all legal costs and punitive damages, as well as consequences for the administrators involved. Additionally, as relief, petitioner request that I not do a “disservice to the students, parents and teachers at the school by continuing to not follow NYC guidelines and educational best practices.”
Respondent maintains that the appeal is time-barred. Respondent further contends that the petition must be dismissed for failure to exhaust administrative remedies and failure to state a cause of action.
I must first address several procedural issues. Petitioner submits a response to respondent’s answer titled “Verified Answer” but states that the same is “to address the respondent’s denial of all of the allegations in our complaint.” Applying the most liberal construction of the regulations, as petitioner is not represented by counsel, it would appear that the intent of the same is that it be construed as petitioner’s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
By letters dated October 22, 2013 and November 5, 2013, which appear to have been served on respondent by mail on November 9, 2013, petitioner submits an Addendum to her response for consideration. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 of the Commissioner’s regulations shall submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]). Petitioner does not explain why the Addendum is necessary nor did she request permission to submit the Addendum in accordance with 8 NYCRR §276.5. In addition, I have reviewed the Addendum and find that it contains new factual or legal assertions which were not raised in the pleadings. Based on the above, I will not consider the Addendum from petitioner.
Next, I must address petitioner’s memorandum of law. Pursuant to §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later. Petitioner’s memorandum of law was served on respondent on November 9, 2013, more than 10 days after service of the reply on October 21, 2013. The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]). However, there has been no such showing here. Petitioner provides no excuse or justification for such late service. Therefore, I have not considered petitioner’s untimely memorandum of law.
Petitioner’s appeal must be dismissed as untimely. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). With her petition, petitioner submits what she refers to as an Annual Evaluation Report for the period of September 4, 2012 to June 30, 2013, in which she received the U-rating. Petitioner’s signature on the report is dated June 19, 2013. However, she did not serve her petition until September 3, 2013, more than two months later. Petitioner offers no good cause for the delay other than to say in her reply that she filed an appeal to the United Federation of Teachers within the 30 days and sent a letter to the Commissioner dated July 19, which, she argues, shows that she was attempting to file her appeal in a timely manner. I have consistently held that, except in unusual circumstances, ignorance of the appeal process is not a valid excuse for late commencement of an appeal (Appeal of Rosa, 47 Ed Dept Rep 463, Decision No. 15,755). I find no such circumstances here. Accordingly, the appeal must be dismissed as untimely.
Considering this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that, in her reply, petitioner admits that she received the U-rating report on that same day.