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Decision No. 13,979

Appeal of MARY LOUISE BURKHALTER from action of the City School District of the City of New York regarding her termination.

Decision No. 13,979

(August 5, 1998)

CATE, Acting Commissioner.--Petitioner appeals her termination in 1994 from a tenured teaching position with the City School District of the City of New York ("respondent") in 1994. The appeal must be dismissed.

Petitioner was employed by respondent as an English teacher at Samuel J. Tilden High School from 1987 until November 1993. She received a permanent appointment from the school district on November 27, 1990. Beginning in December 1992, petitioner made periodic complaints to the school principal that she was receiving papers, books and furniture coated with chemicals which were harmful to her health. A representative from the United Federation of Teachers ("UFT") investigated this complaint and apparently referred this matter to an industrial hygienist for the UFT. There is nothing in the record, however, to indicate the result of this referral.

On March 17, 1993, petitioner sent a letter to the principal of her school complaining that she had been receiving papers, books and furniture coated with chemicals since December 1992. She claimed that exposure to these chemicals had caused her to be sick and absent from work. On March 25, 1993, the principal of Tilden High School, wrote a letter to the superintendent of Brooklyn High Schools describing petitioner’s actions. He stated that her fear of chemicals was so great that she no longer would go to her mailbox to pick up information pertinent to her official class responsibilities. Although he tried to talk to her about this issue she refused to converse, and would not accept a paper from any individual at the school for fear of being poisoned. In this letter he requested that the superintendent recommend a full mental/medical evaluation of petitioner, which the superintendent apparently did.

By letter dated November 5, 1993, the superintendent evidently suspended petitioner without pay for failing to comply with the board of education medical examination. This was followed by a December 2, 1993 letter from the Chancellor advising petitioner that charges had been preferred against her pursuant to Education Law "3020-a for insubordination, and that she was immediately suspended without pay until such time as she reported for a medical examination. It is unclear whether she ever reported for such examination.

Petitioner apparently obtained legal representation from the New York State United Teachers ("NYSUT") on December 16, 1993 and filed a grievance alleging she had been wrongfully suspended without pay in November 1993. On January 21, 1994, a case conference was held concerning this grievance, at which it was decided that petitioner would be given "pay for the period 11/1/93 through 12/2/93." Petitioner resigned on February 7, 1994 while the charges for insubordination were still pending. Accordingly, the disciplinary proceeding was dismissed as moot.

Petitioner contends that she was wrongfully terminated by respondent. Specifically, petitioner claims that she was forced to resign due to harassment, wrongful accusations and the suspension without pay. Petitioner also asserts that respondent wrongfully withheld FICA from her paychecks from October 1, 1987 to the date of her resignation. Petitioner seeks to be restored to her job title, with appropriate salary and back pay to November 1993, and return of all over-deductions from her salary. She also requests a hearing.

Respondent did not answer this petition, despite being properly served with the petition and being sent a letter from my Office of Counsel on February 6, 1998 explaining the consequences of not answering. Therefore, pursuant to 8 NYCRR "275.11, the statements contained in the petition are deemed to be true statements. For this reason, I must accept all of the statements in the petition and attached exhibits to be true.

In spite of respondent’s failure to answer, thisappeal must be dismissed as untimely. 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 unless excused by the Commissioner for good cause shown (Appeal of Rivera, 35 Ed Dept Rep 441; Appeal of McCall, 35 id. 38). This appeal was commenced on December 16, 1997, almost four years after petitioner's resignation of February 7, 1994, and petitioner has offered no excuse for her delay. It has been held on numerous occasions that absent unusual circumstances, ignorance of the appeal process and its time limitations is not a sufficient basis to excuse a delay (Appeal of Holzer, et al., 37 Ed Dept Rep 549; Appeal of A.B., 36 id. 155; Appeal of Kline, 35 id. 91). All of petitioner's claims concern actions which occurred on or before the date of her resignation. Accordingly, the appeal must be dismissed as untimely.