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Decision No. 13,179

Appeal of PEARL ELAINE LUCAS from action of the Board of Education of the City School District of the City of New York regarding an unsatisfactory teacher rating.

Decision No. 13,179

(May 11, 1994)

O. Peter Sherwood, Corporation Counsel, attorney for respondent, Anna H. Zetlin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals an unsatisfactory rating assigned to her in 1964. The appeal must be dismissed.

Petitioner possessed a permanent New York State certificate to teach Common Branch Subjects and worked as a regular substitute teacher in the New York City schools from 1956 through 1963. Petitioner received satisfactory ratings during those years.

In June 1964, at the end of a year of probationary teaching in pursuit of a regular license, petitioner was given an unsatisfactory rating by her school principal. This rating followed a February 1964 letter from the principal and a hearing held on May 5, 1964, regarding an alleged incident of corporal punishment committed by petitioner. Petitioner was accompanied at the hearing by a union representative. At the hearing, petitioner attempted to refute the allegations with signed statements from parents of children in the class. Petitioner also claimed that the principal asked parents to make complaints about her. Following the hearing, petitioner filed several grievances in May and June 1964. In May 1964, respondent notified petitioner that her services were discontinued as of September 2, 1964.

Petitioner filed this appeal on November 24, 1992, seeking to have the rating overturned as well as back pay and benefits. Petitioner submitted additional material in support of her contentions in January, March, August and October, 1993 and in March 1994. Respondent asserts that the petition fails to state a cause of action, is untimely because it was filed 28 years after the challenged rating and termination, and is barred by laches.

Section 275.16 of the Commissioner's regulations requires that an appeal to the Commissioner be instituted within 30 days from the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition (8 NYCRR 275.16). Petitioner asks that I excuse the 28 year delay in filing this appeal because, she contends, her constitutional rights were denied when she was not informed of her right to appeal at the time she received her unsatisfactory rating.

Petitioner claims that she first became aware of her right to appeal by letter dated September 3, 1992 from my Office of Counsel. The September 3 letter actually repeated information about the appeals process previously conveyed to petitioner by my Office of Counsel in a November 6, 1991 letter, which petitioner claims she never received. However, ignorance of the appeals process is not a sufficient basis to excuse a delay in commencing an appeal except in unusual circumstances (Appeal of Burton, 33 Ed Dept Rep 211; Appeal of Aarseth, 32 id. 626; Appeal of Savastano, 32 id. 326; Appeal of Saeger, 31 id. 528; Appeal of Nettles, 31 id. 437; Appeal of Pitney Bowes, Inc., 31 id. 290).

Although the record in this case does reveal some unusual circumstances, they are not enough to overcome a delay of more than two decades in filing this appeal. In August and September 1964, petitioner paid a lawyer a $500 retainer to pursue legal proceedings to reinstate her license and institute an action for slander and defamation of character against the principal and respondent. Unfortunately, the lawyer absconded with her retainer, and petitioner filed complaints against him in the summer of 1966. On May 1, 1969, petitioner was informed of pending disciplinary proceedings against the lawyer. The lawyer was subsequently suspended from practice for two years for professional misconduct in petitioner's case and three others. The case was reported in the New York Times (In the Matter of Zuber, N.Y. App. Div., 2d Dept., September 8, 1969, unpublished opinion).

Petitioner referred to these incidents in her petition and submitted a copy of the case as additional evidence in March 1994. While her lawyer's actions are unfortunate, there is absolutely no evidence or explanation of why petitioner failed to take further appropriate action from 1969 until 1992. Whether this appeal is considered 28 years late or only 23 years late because of these unusual circumstances, petitioner's difficulties with her lawyer do not constitute a sufficient reason to excuse her failure to commence an appeal until November 1992 (Appeal of LaPlante, 29 Ed Dept Rep 472). Moreover, petitioner's actions in hiring a lawyer and her active involvement in pursuing her rights against him belie her protestations of ignorance of her legal rights.

Except for retaining a new lawyer, the petition is unclear about what other actions petitioner undertook following her unsatisfactory rating in June 1964. Petitioner goes to great lengths to document her subsequent employment and educational accomplishments, yet there is insufficient evidence in the record demonstrating her actions to resolve the complaint underlying this appeal. At some point petitioner involved the field representative of her union, who in December 1967 wrote to respondent's division of personnel. There is also reference in the record to a letter in 1968 to the President of the New York City Board of Education. The record is then silent until 1990, when petitioner wrote to the Chancellor of the New York City Board of Education. In 1991, petitioner wrote to my office. Petitioner filed her petition on November 24, 1992, over two and one-half months after her receipt of a letter from my Office of Counsel. There is simply no evidence or explanation for why petitioner failed to pursue an appeal on her behalf for 28 years from June 1964 to November 1992.

Petitioner has involved numerous community leaders and public officials in her quest for justice, who have submitted many letters of reference on her behalf. However laudatory, these documents cannot overcome the defects in petitioner's case. Because petitioner has failed to offer a sufficient excuse for a delay of this magnitude, the appeal is dismissed as untimely. In view of my determination that the appeal is untimely, I will not address the merits of the appeal.