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Decision No. 13,018

Appeal of ROSALIND JOHNSON from action of the Board of Education of the City School District of the City of New York regarding payroll deductions.

Decision No. 13,018

(September 29, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Sergio J. Tuero,

Esq., of counsel

SOBOL, Commissioner.--Petitioner is a tenured teacher employed by respondent City School District of the City of New York ("the district"). In 1991, due to her poor attendance, the district made several deductions from petitioner's paycheck. Petitioner appeals the payroll deductions, as well as a rating of "unsatisfactory" which she received in June 1991. The appeal must be dismissed.

In March 1990, following charges against her pursuant to Education Law '3020-a, petitioner was reassigned from a teaching position at Beach Channel High School to clerical duty in the office of the Queens High School superintendent (the "superintendent"). By memorandum dated March 8, 1990, petitioner was informed that her working hours in the superintendent's office would be from 9:00 a.m. to 3:20 p.m. and that, except during her lunch period, she would be required to remain at her assigned work station. In the memorandum, petitioner was further advised that failure to comply with the terms of her assignment could result in additional disciplinary charges and, possibly, payroll deductions. Despite this warning, petitioner established a pattern of habitual, unexcused lateness and absenteeism.

Petitioner's assignment to the superintendent's office continued into the 1990-91 school year. Her attendance did not improve. On October 1, 1990, accompanied by a union representative, petitioner attended an "interview for the record" in the superintendent's office. The purpose of the interview was to discuss her unauthorized absence on September 10, 1990. By letter dated October 2, 1990, the superintendent's designee informed petitioner that, as a result of the unauthorized absence, she would be required to return to respondent a sum commensurate with the amount of salary she received for services on the date in question. Although she was requested to do so, petitioner did not sign the designee's letter, refusing to acknowledge receipt of the October 2, 1990 correspondence.

In December 1990, petitioner arrived for work between 3 and 123 minutes late every day. By letter dated December 12, 1990, the superintendent's designee informed petitioner that deductions appropriate to her latenesses would be made from her cumulative absences reserve ("CAR") which could result, eventually, in payroll deductions.

Petitioner's pattern of lateness and unauthorized absence continued in January 1991. By letter dated January 12, 1991, the superintendent asked petitioner to attend another "interview for the record" to discuss the problem. Again, petitioner refused to acknowledge receipt of the superintendent's letter, and it is unclear whether the interview took place.

Petitioner's tardiness continued throughout February 1991. Consequently, on February 27, 1991, the superintendent's designee conducted an interview to address petitioner's attendance during the months of December 1990 and January and February 1991. Petitioner attended the interview, accompanied by her union representative. By letter dated March 26, 1991, the superintendent's designee summarized the February 27 interview and informed petitioner that her CAR would reflect deductions for lateness occurring on all but four days during the months of January and February 1991. He also informed petitioner that her CAR would reflect a deduction for periods of unauthorized absence on January 11, 1991 and February 7, 1991. The designee further advised petitioner that the superintendent would be recommending additional charges pursuant to Education Law '3020-a for petitioner's continuing "disregard [for] established policies" as well as her refusal to acknowledge receipt of official correspondence.

Because petitioner's poor attendance continued throughout the 1990-91 school year, she received a performance rating of unsatisfactory in June 1991.

Petitioner's assignment to the superintendent's office continued through the 1991-92 school year. Her punctuality did not improve. On January 16, 1992, she and her union representative met with the superintendent's designee, again, to discuss her continual lateness. A dispute arose when the designee denied petitioner's request to tape record the conference. In a subsequent letter to petitioner, dated January 22, 1992, the superintendent's designee summarized the conference proceedings as follows:

I [ ] stated that if you refused to comply with my request to turn off the tape recorder I would interpret that as an agreement to the following alternative - that I adjourn the conference and complete the investigation independently, writing a letter and concluding my findings without your input. At this point you asked your representative if you were required to turn the tape machine off. He responded that it was both practice and policy not to tape record this type of conference. I again asked you to turn the tape recorder off. Again, you refused to do so. The conference was adjourned.

In his letter, the designee observed that, on seven days between September 3, 1991 and January 3, 1992, petitioner's time cards recorded service outside her assigned work hours. He informed petitioner that payroll deductions would be made for those periods of time. The designee also informed petitioner that deductions would be made for seven full days between December 18, 1991 and January 14, 1992 when petitioner could not be located at her assigned work station.

On February 5, 1992, at petitioner's request, respondent held a Step II grievance conference pursuant to the terms of petitioner's collective bargaining agreement, to address payroll deductions made as a consequence of her latenesses between September 1990 and May 1991 (the "September-May deductions"). Finding that her time cards showed that petitioner was late on 141 occasions during that period, respondent's executive director of human resources denied the grievance. The union refused to pursue the matter further. It appears that the union also denied petitioner's request to grieve a number of other payroll deductions.

On March 4, 1992 and again on May 1, 1992, petitioner and her union representative attended meetings with the superintendent's designee to discuss petitioner's continuing disregard for the district's attendance policies. By letter dated May 26, 1992, the designee informed petitioner that payroll deductions would be made for seven full days between March 16, 1992 and April 30, 1992 when she could not be located anywhere in her assigned building. Petitioner commenced this appeal on June 1, 1992.

An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16; Appeal of Sima-Eichler, 31 Ed Dept Rep 550). As expressly limited by the petition, petitioner appeals only from payroll deductions "made during the 1991 calendar year." Although the record does not establish precisely when during 1991 respondent made the deductions in question, petitioner commenced this appeal more than 30 days following the last day of the 1991 calendar year. Similarly, petitioner received her "unsatisfactory" rating in June 1991, a full year preceding the commencement of this appeal. In its entirety, therefore, the appeal is untimely.

The Commissioner of Education, "in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown" (8 NYCRR 275.16). Petitioner asks me to excuse the delay in commencing this appeal. First, she contends, "I could only submit my formal appeal after initiating a rigorous search for the pertinent documents." However, she does not identify the "pertinent documents" for which she had to search. Moreover, petitioner admits she knew of the "September-May" payroll deductions by October 1991. It is also clear from the petition that she knew of other 1991 deductions by the time she received her 1991 W-2 income tax statement, if not before. Had petitioner commenced the appeal in a timely manner, she could have made application, thereafter, pursuant to 8 NYCRR 276.5 to file additional exhibits or other supporting papers (8 NYCRR 276.5; see, Appeal of Nordin, 32 Ed Dept Rep 17). On the record presented, therefore, I do not find her argument a valid ground for the exercise of my discretion under '275.16 (see, Appeal of Ruffino, 31 Ed Dept Rep 183).

Petitioner also claims her appeal cannot be time-barred because, as she states, "[m]y salary appeal documents overwhelmingly prove the timely fashion in which I filed grievances with the New York City Board of Education, in my efforts to retrieve the various deductions from my payroll." For purposes of '275.16, an appeal is commenced when copies of the petition are personally served upon each named respondent in accordance with 8 NYCRR 275.8(a) (see, Application of Sabuda, 31 Ed Dept Rep 461, 463; Appeal of Kushner, 31 id. 351). Efforts to gain reconsideration or reversal of the school board's decision do not extend the time in which an appeal must be taken (Appeal of Hall, 32 Ed Dept Rep 377, 379; Appeal of Chesbrough, 32 id. 647, 650). Consequently, petitioner's grievances with her employer, timely or not, neither tolled nor extended the 30-day period under '275.16. Furthermore, petitioner offers this explanation in her reply, but not in the petition. I am unable to consider her argument as a basis for excusing the untimely appeal, in light of 8 NYCRR 275.16 which states, in pertinent part, "the reasons for [a failure to commence an appeal within the time specified] shall be set forth inthepetition" (8 NYCRR 275.16, emphasis supplied).