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Decision No. 14,086

Appeal of PHYLLIS L. JOHNSON from action of the Board of Education of the City School District of the City of Buffalo regarding employment as teacher and assistant principal.

Decision No. 14,086

(March 10, 1999)

Michael B. Risman, Corporation Counsel, attorney for respondent, Patricia A. Pancoe, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's grading of the written portion of an examination used to hire elementary school teachers in the City School District of the City of Buffalo and refusal to appoint her to the position of assistant principal of one of the district's elementary schools. Petitioner seeks appointment as a probationary assistant principal in respondent's district and the award of back pay as a teacher for the 1996-97 school year. The appeal must be dismissed.

Petitioner served in a series of temporary appointments in respondent's district between 1991 and 1996. Each appointment was for a period of one year or less. Pursuant to its authority under Education Law "2573(10-a) to conduct examinations for the hiring of new teachers, respondent, in 1991, administered the Buffalo Teachers Examination for elementary positions. Petitioner took that examination and failed it. However, respondent continued to employ petitioner in a variety of temporary teaching positions for which appointment from the district's eligible list was not required.

In November 1995, respondent administered a new Teacher Selection Procedure ("TSP"). Petitioner took the examination for common branch elementary positions and failed it. As a result, respondent did not offer petitioner a teaching position in the 1996-97 school year. According to respondent, it was precluded by Education Law "2573(10-a) from offering petitioner an elementary teaching position, because it was required to hire candidates from the district's eligible list derived from the most recent teaching examination, and there were a sufficient number of eligible candidates on the list to fill all available positions.

In the spring of 1997, petitioner applied for the position of elementary school assistant principal in respondent's district. Petitioner was among 36 candidates who were interviewed. Candidates were interviewed by a panel and their credentials and employment records were evaluated. Petitioner was not selected for appointment to an assistant principal position.

Petitioner contends that respondent treated her unfairly in the grading of the TSP. Petitioner also contends that respondent discriminated against her and treated her unfairly during the interview and selection process for the assistant principal position.

Respondent contends that the appeal is untimely. In addition, respondent claims that it acted lawfully with respect to the procedures, content and evaluation of the TSP and denies that petitioner was treated unfairly in the grading of that examination. Respondent also claims that it did not discriminate against petitioner or treat her unfairly during the interview and selection process for the assistant principal position.

Before reaching the merits, I will consider two procedural issues. First, petitioner requests permission to submit three unsworn affidavits with attached exhibits, pursuant to 8 NYCRR "276.5. These additional pleadings concern the alleged conduct of respondent's staff relating to petitioner's employment in a temporary teaching position commencing in February 1998. While 8 NYCRR "276.5 permits the submission of additional evidence not available at the time the appeal was brought, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of the Coalition for the Empowerment of People of African Ancestry, 36 Ed Dept Rep 425). I will not accept material which raise new issues and introduces new exhibits that are not relevant to the appeal (Appeal of Sherman, 36 Ed Dept Rep 168). Accordingly, I will not consider the new claims raised in the unsworn affidavits or the new exhibits attached thereto.

Respondent contends that the appeal is untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 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. Petitioner was notified of the results of the TSP on June 5, 1996, and was subsequently notified on August 18, 1997 that she had not been chosen for the position of elementary assistant principal. Petitioner did not commence this appeal until October 7, 1997. Petitioner asks that the late filing of her petition be excused because the delay was caused by her efforts to resolve these matters with respondent and she was unaware of the deadline and did not have an attorney. A request for reconsideration does not extend the time to commence an appeal (Appeal of Manuel and Bonnie Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 Ed Dept Rep 93). Therefore, petitioner's efforts to have respondent reconsider its decisions in these matters are not an excuse for the fact that the appeal is untimely. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal, and the fact that petitioner did not have an attorney to advise her is not an excuse (Appeal of Michele G. and Myron G. Jacobson, 37 Ed Dept Rep 75; Appeal of A.B., 36 Ed Dept Rep 155). Since I do not find evidence of unusual circumstances in this case, the appeal is dismissed as untimely.

Even if I were not dismissing this petition on procedural grounds, I would dismiss it on the merits. Petitioner claims that she failed the written portion of the TSP because pages were missing from her answer. However, respondent denies that there were missing pages. In addition, respondent claims that petitioner did not provide this as a reason for requesting the re-grading of her examination either when she reviewed the examination answer in July 1996 or when she wrote the superintendent on September 26, 1996 requesting that the examination be re-graded, and that petitioner gave other reasons for requesting the re-grading. Respondent claims that petitioner first stated that pages were missing from her answer in an October 11, 1996 letter to its acting assistant superintendent for administrative services. That staff member reviewed petitioner's answer and found nothing to indicate that there were pages missing from her answer. A copy of the examination answer is not in the record before me, so I am unable to review it to determine whether there are any obvious gaps, indicating that pages are missing. In an appeal before the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 Ed Dept Rep 596). Petitioner has not met that burden on her claim that there were missing pages from her examination answer and that respondent acted unfairly in not permitting her to supplement the answer.

Petitioner's other claim concerns her failure to be appointed to an assistant principal position for the 1997-98 school year. Petitioner contends that she was discriminated against in the interview process because she was required to answer two sets of questions while the other candidates were only required to answer one set of questions. She also claims that she was discriminated against because less qualified candidates who were not appropriately certified were appointed and because the interview committee was not racially balanced.

Respondent denies petitioner's allegation that she was discriminated against when she was not appointed to the position of assistant principal of an elementary school. Respondent's assistant superintendent for elementary education indicated in an affidavit that each of the successful candidates met the requirements of the position, as set forth in the job announcement. She stated that the selection process consisted of an interview, and a review of the candidate's resume and personnel records. She further indicated that all candidates were given a sheet with two questions when they arrived for the interview. One question was on literature based reading programs and the other was on discipline. Each candidate was directed to choose one of the two questions and give a 10 to 15 minute oral response to the interview panel. She stated that candidates were never told that they would not be asked any other questions by the interview panel. Respondent's assistant superintendent for elementary education also stated that she directed the interview panel to ask each candidate at least one question on literature based reading because this is an important part of the elementary school curriculum, even if the candidate chose the discipline question as their long answer. She stated that the interview panels consisted of one principal, one assistant principal, one teacher and two elementary school supervisors. She stated that the racial makeup of petitioner's interview panel, one minority and four majority members, is consistent with the racial makeup of staff in the district.

Petitioner bases her claim that the interview and selection process was unfair on the fact that two candidates who received appointments told her that they were required to answer only one set of questions on reading. She claims that the selection process was unfair because she was better qualified than successful candidates in that she is certified in elementary education and as a school administrator and supervisor, and school district administrator, while she alleges that some successful candidates were not certified as a school administrator and supervisor, and some were not certified in elementary education.

There is nothing in the record to indicate that respondent's explanation that the interview panels were directed to ask at least one question about reading to those candidates who chose the discipline subject is inherently unreasonable. I do not find that petitioner was treated unfairly because she was asked questions on reading by the panel. Although petitioner alleges that respondent improperly hired individuals for the assistant principal position who were not certified as a school administrator and supervisor, petitioner has failed to establish in the record before me that successful candidates were not appropriately certified. Finally, petitioner alleges that the interview panel was not racially balanced. However, she acknowledges that there was minority group representation as one of the five panel members was a minority group member. Petitioner has failed to meet the burden of establishing her claim that she was treated unfairly or discriminated against when she was not selected for the assistant principal position.