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Decision No. 12,966

Appeal of DAVID O'BRIEN from action of the Board of Education of the City School District of the City of New York regarding termination of services.

Decision No. 12,966

(August 2, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, James A. Girillo,

Esq. and Bonnie Mussman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination to discontinue his services as a probationary teacher. The appeal must be dismissed.

In September 1990, petitioner received a probationary appointment as a social studies teacher in respondent's school district. Respondent assigned petitioner to teach at Andrew Jackson High School. The principal and assistant principal at Andrew Jackson High School observed petitioner periodically. During the fall semester of the 1990-91 school year, petitioner was rated satisfactory. However, based on his spring semester observation reports, his performance was rated unsatisfactory. In several letters, the assistant principal informed petitioner of numerous student complaints regarding his use of highly inappropriate language in the classroom, including racial slurs, foul language and name calling. In addition, the assistant principal indicated that petitioner's classroom management and classroom discipline were problematic.

On May 14, 1991, petitioner, accompanied by his union representative, met with the assistant principal to discuss complaints that he had used offensive language and racial slurs in the classroom. Following the meeting, the assistant principal wrote to petitioner on May 16 noting his deficiencies in judgment and lack of sensitivity toward students. On May 16, petitioner and his union representative met again with the assistant principal and the principal regarding additional student complaints about his use of foul language, racial slurs and a situation where he publicly embarrassed a student who had just returned to school after having a baby. Petitioner's continuing classroom management problems were also discussed, including incidents when petitioner failed to make clear to students their responsibilities, made disparaging remarks to students, tested on areas of the curriculum he had promised not to and threatened to fail students on inappropriate criteria. A follow-up letter from the principal documented the meeting and concluded that petitioner's lack of judgment jeopardized the educational progress of his students. The principal directed petitioner to meet daily with the assistant principal to plan an orderly conclusion of the term for his students.

In June 1991, petitioner and his union representative again met with the principal to discuss petitioner's attendance record. At that meeting, the principal informed him that his absences exceeded the number of days allotted to first year probationary teachers. The principal also noted that petitioner was absent, frequently on Fridays or Mondays, and criticized him for sending a message to students that attendance at school before or after the weekend was unimportant. The principal also noted that petitioner missed some of the daily planning meetings, failing to notify the assistant principal that he was on jury duty at the time. Petitioner also failed to leave work for his students on two days that he was absent, in contravention of school policy.

On June 11, 1991, at the request of the superintendent of Queens high schools, Bertram L. Linder, principal of Cardozo High School, independently reviewed petitioner's pedagogical record and observed him in the classroom. Based on his observations, Mr. Linder reported petitioner's performance as unsatisfactory. In his observation report he indicated that petitioner exhibited very poor lesson planning, an unfocused presentation without clear goals, an insensitive and disruptive approach to students, poor classroom management, no effort to involve or motivate students and poor management of a test environment. In a follow-up conference to discuss the deficiencies, petitioner characterized his students as "dysfunctional".

On June 12, 1991, the principal rated petitioner "unsatisfactory" on his annual performance review and recommended discontinuance of his services. Respondent's superintendent of the Queens high schools and its executive director of the high school division concurred with the principal's recommendation. By letter dated July 19, 1991, Chancellor Fernandez, on behalf of respondent, notified petitioner that his services were terminated.

Pursuant to his collective bargaining agreement, petitioner sought review of the decision to discontinue his services. A three member panel was convened and advised that petitioner's services not be discontinued. Nevertheless, after again reviewing the record before him, the Chancellor terminated petitioner's services. Chancellor Fernandez notified petitioner by letter dated February 7, 1992 of his decision to reaffirm his earlier determination and discontinue petitioner's services, effective September 1991. Thereafter, petitioner initiated this appeal alleging that, in terminating his services, respondent impermissibly discriminated against him on the basis of race.

In its answer, respondent raises certain procedural defenses. Respondent alleges that petitioner failed to commence the appeal within 30 days of the date he was notified that his services were discontinued and contends that the appeal is, therefore, untimely.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision or action complained of, except when excused for good cause which must be alleged inthepetition (emphasis added). In the instant case, the Chancellor rendered his final decision to discontinue petitioner's services on February 7, 1992. Petitioner served his petition upon respondent on April 2, 1992 - almost two months later. Although the regulations require that good cause for delay be alleged in the petition, petitioner failed to include any explanation for the delay in his petition. In his reply petitioner indicates, for the first time, that he wrote to this Department in February 1992, complaining of the decision to terminate his services. Since the regulation requires that the cause for delay be alleged in the petition, and petitioner offered the explanation for his delay for the first time in his reply, I find his appeal untimely (Appeal of Board of Education, Poughkeepsie City School District, 32 Ed Dept Rep 315). Moreover, I have reviewed petitioner's February 1992 letter and conclude that it did not serve to initiate an appeal in accordance with the Regulations of the Commissioner of Education.

Respondent also alleges that the issues petitioner raises in this appeal are the subject of pending discrimination complaints filed with the Equal Employment Opportunity Commission, the State Division of Human Rights and the New York City Commission on Human Rights. Petitioner acknowledges that those proceedings are pending. Having chosen those forums to litigate his claims, petitioner has made an election of remedies and may not relitigate the same issues in a proceeding pursuant to Education Law '310 (Appeal of Green, 31 Ed Dept Rep 512; Appeal of Hilow, 31 id. 78).