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Decision No. 13,593

Appeal of ESTHER BONAFOUX RIVERA from action of the Board of Education of the City School District of the City of New York regarding teaching service credit.

Decision No. 13,593

(April 18, 1996)

Paul A. Crotty, Esq., Corporation Counsel, attorney for respondent, Vincent D'Orazio, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of New York ("respondent") to credit her teaching service record for service performed from April 1972 to February 1973. The appeal must be dismissed.

From April 24, 1972 until the end of the fall term in 1972, petitioner worked as an Instructor of Puerto Rican Cultural Heritage in respondent's school district under two Certificates of Competency issued to her by the City School District of the City of New York. According to respondent, during the early 1970's, the City School District issued Certificates of Competency to "qualified individuals who possessed particular skills which were not then covered by (the district's) Board of Examiners Licenses/ Examination." In February 1973, the district issued petitioner a substitute teacher's license and she began service as a teacher for respondent. In 1989, respondent refused to credit petitioner's teaching service record for her service in the spring and fall of 1972 because she had been working under a Certificate of Competency without a basic license. Petitioner requests the amendment of her teaching service record to reflect this service and that she receive corresponding pension credit. She also seeks payment which would retroactively accrue by calculating her 10th year, 13th year, and 15th year longevity increments from the amended dates.

Respondent contends that petitioner is not entitled to the increments she seeks because she was not licensed to teach by the City School District until February 1973. In addition, respondent raises several defenses, including timeliness and lack of personal jurisdiction. Respondent further contends that petitioner's appeal is barred because she effected an election of remedies through grievance proceedings, complaints with the New York State Division of Human Rights and the Equal Employment Opportunity Commission, and an action in New York City Civil Court.

Petitioner's claim must be dismissed because it is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The action forming the basis of petitioner's complaint -- respondent's refusal to credit her for service performed in the spring and fall of 1972 -- occurred in 1989, approximately six years prior to the filing of this appeal. Petitioner contends that the time limitations should not apply to her, however, because she has been actively seeking a resolution to this matter since 1989. Assuming, arguendo, that such activity would toll the statute of limitations, there is no evidence that petitioner has actively sought any alternative resolution of this dispute since 1992. She also argues that she did not learn of this appeal process until September 1995. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Kline, 35 Ed Dept Rep 91; Appeal of Maillard, 35 id. 229). I find no evidence of unusual circumstances in this case. Accordingly, the appeal must be dismissed as untimely.

In view of this determination, I will not address the merits of the appeal.