Decision No. 17,483
Appeal of JOSEPH R. CEA from action of the Board of Education of the City School District of the City of Watervliet and Lori Caplan as Superintendent regarding a personnel action.
Decision No. 17,483
(August 14, 2018)
Ferrara Fiorenza PC, attorneys for respondents, Heather M. Cole, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals from actions taken by the Board of Education of the City School District of the City of Watervliet (“respondent board”) and Lori Caplan as Superintendent (“respondent Caplan”) (collectively, “respondents”) concerning the placement of certain information in his medical file. Petitioner also seeks the removal of respondent Caplan from office. The appeal must be dismissed and the application must be denied.
According to the record, on November 9, 2016, petitioner, an employee of respondent’s district, scheduled four consecutive days of sick leave from November 15 through November 18, 2016. The parties agree that petitioner was permitted to use accumulated sick
leave for the leave pursuant to a collective bargaining agreement (“CBA”) between respondent and the Watervliet Teachers’ Association (the “union”).
Respondent board’s policy 6551, entitled “Family and Medical Leave Act,” defines a “serious health condition,” in relevant part as:
an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider that renders the person incapacitated for more than three (3) consecutive calendar days.
The record reflects that respondent Caplan requested that petitioner complete United States Department of Labor Form WH-381, entitled “Notice of Eligibility and Rights & Responsibilities (Family and Medical Leave Act).”
In a memorandum to petitioner dated November 15, 2016, respondent Caplan indicated that petitioner's leave “may be covered by FMLA,” and that petitioner was “direct[ed] ... to have [his] health care provider complete the enclosed official form WH-380-E ....” In the interim, the district “tentatively designat[ed]” petitioner’s leave as FMLA leave.
On or about November 30, 2016, petitioner returned the form, stating in an attached cover letter that he did so
“under duress,” and that respondents’ mandate that he complete the form “may [have] be[en] illegal.”
In an email dated December 1, 2016, the district clerk told petitioner: “[i]t does not appear from the information you submitted that ... your leave was an FMLA qualifying leave.” Thus, the district clerk stated that the leave would “not be counted against” petitioner’s FMLA leave time.
Petitioner responded to the email later that day, asking “out of curiosity how ... this determination [was] made ....” The district clerk replied that the school attorney made such determinations on a case-by-case basis. Petitioner responded that the district clerk’s reply did not “really answer [his] question as to what criteria was used to disqualify this claim.” Petitioner stated that there “needs to be some transparency” and requested that the school district attorney “prepare a statement about why [his] claim did not qualify ....”
Apparently confused by petitioner’s repeated inquiries into whether his leave was FMLA eligible, on December 5, 2016, the district clerk indicated to petitioner that the district would treat his leave as FMLA leave. Petitioner proceeded, in subsequent correspondence in December 2016 and January 2017, to request access to his “file” to view documents therein pertaining to FMLA leave. According to the record, petitioner viewed the contents of his medical file on January 13, 2017 and, by email dated February 17, 2017, was informed that the FMLA paperwork would not be removed from his medical file. This appeal ensued.
Petitioner contends that respondents improperly required him to submit “medical documentation” in violation of the CBA. Petitioner further complains that respondents’ denial and subsequent acceptance of the leave as FMLA-qualifying was arbitrary and capricious. For relief, petitioner seeks the “removal of any medical documentation abut [sic] [p]etitioner from his personnel and/or medical file ... that has been used” and that respondents “have no justification to keep.” Petitioner also seeks the removal of respondent Caplan from her position as superintendent, and the revocation of respondent Caplan’s “administrative license.”
Respondents contend that the appeal must be dismissed as untimely, as outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310, and, in part, for lack of standing. Respondents further contend that petitioner’s request that respondent Caplan be removed is without merit and must be dismissed for petitioner’s failure to comply with 8 NYCRR §277.1. Respondents additionally assert that they acted appropriately in addressing petitioner’s medical leave and complied with FMLA and board policy 6551.
First, I must address a procedural matter. Petitioner submitted a reply in this matter. 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 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.
The 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Initially, I note that, in this proceeding, petitioner has outlined various complaints against respondents dating back ten years. Petitioner admits in his reply that these allegations were contained in the petition “solely for the purposes of demonstrating a pattern of reckless, irresponsible, unethical and illegal behaviors.” Petitioner further states that he only requests a determination “that [r]espondents have illegally and unethically obtained the FMLA paperwork, that it should be returned as a result and that Dr. Caplan should be reprimanded ....” Petitioner implicitly concedes that these incidents are untimely and, thus, I find that they are time-barred.
Petitioner’s allegations concerning the leave time which he took in November 2016 and respondents’ actions with respect thereto must similarly be dismissed as untimely because each of petitioner’s allegations concern conduct which occurred more than 30 days before service of the petition on March 17, 2017. Petitioner’s complaint that he was improperly required to complete Form WH-381-E accrued on November 15, 2016, when respondent Caplan informed petitioner in writing that he was required to complete this form. Likewise, petitioner’s challenge to respondents’ classification of his leave as FMLA leave accrued on December 5, 2016, when the district clerk informed petitioner of such determination. Petitioner’s service of the instant petition on March 17, 2017 was well over 30 days after both of these dates. Petitioner does not, as required, set forth good cause for the delay in the petition (8 NYCRR §275.16).
While petitioner purports to appeal from a February 17, 2017 decision of the district to maintain the FMLA form in his medical file, petitioner’s claim accrued when he had actual knowledge of the facts underlying his claim; namely, respondent Caplan’s directive requiring petitioner to complete Form WH-381-E on November 16, 2016 and the district clerk’s determination that petitioner’s leave was covered under the FMLA on December 5, 2016 (see Appeal of O’Brien, 51 Ed Dept Rep, Decision No. 16,316, O'Brien v. King, et al.; Supreme Court, Albany County; judgment granted dismissing petition; July 3, 2012; affd 112 AD3d 188 [3d Dept. 2013]; appeal dismissed 22 NY3d 1125 ; mot. for leave to appeal den. 23 NY3d 903 ; cert den. 135 s.ct. 404 ). To hold otherwise would allow a petitioner to obtain review of any information in his or her personnel or medical file in an Education Law §310 appeal, so long as such appeal was commenced within 30 days of denial of a request for expungement.
I further note that inclusion of the FMLA paperwork in petitioner’s medical file is a discrete action and is therefore not a continuing wrong (see Appeal of Thomas, 50 Ed Dept Rep, Decision No. 16,193). In fact, retention of the FMLA paperwork submitted by petitioner is required by the FMLA’s implementing regulations (29 CFR §825.500[b]) and Records Retention and Disposition schedule ED-1 (8 NYCRR Appendix I) adopted by the State Education Department. Thus, retention of this paperwork is not intrinsically wrong and the appeal must be dismissed as untimely. Additionally, to the extent the appeal constitutes an application to remove respondent Caplan, this claim must also be dismissed as untimely as petitioner does not allege any wilful violations of law by respondent Caplan which occurred within the 30-day time limitation.
The appeal must also be dismissed, in part, as outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310. As indicated above, petitioner seeks revocation of respondent Caplan’s New York State “administrative license.” An appeal pursuant to Education Law §310 is not the appropriate forum to seek the revocation of a superintendent’s certification (see Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,355). Such relief may only be obtained through the process set forth in Part 83 of the Commissioner’s regulations, which provides certificate holders with, among other rights, the right to a formal hearing where they may present evidence and testimony prior to revocation of a certificate (see 8 NYCRR Part 83).
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED AND THE APPLICATION IS DENIED.
END OF FILE
 Respondents request that I consolidate this appeal with Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482. However, given the differing allegations in each appeal, I decline to do so (see 8 NYCRR §275.18).
 The record does not support a finding that petitioner was unaware that his medical file contained a reference to FMLA leave or his completed Form WF-381-E. However, even assuming, arguendo, that petitioner was unaware of the contents of his medical file, petitioner gained actual knowledge of the contents of the file on January 13, 2017 when he accessed and viewed it.
 Even if the application for removal were timely, it would be dismissed on procedural grounds as petitioner did not comply with the specialized notice provision for removal applications as required by 8 NYCRR §277.1(b) (Application of Carrion, 50 Ed Dept Rep, Decision No. 16,228; Application of Vendel, 49 id. 361, Decision No. 16,050). It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Appeal of Kelly, 45 Ed Dept Rep 38, Decision No. 15,253).