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Decision No. 15,066

Appeal of NAILA M. QURESHI from action of the Board of Education of the City School District of the City of New York regarding a teacher rating.


Decision No. 15,066


(June 18, 2004)


Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield and Pamela Richardson, Esqs., of counsel


MILLS, Commissioner.--Petitioner challenges her unsatisfactory performance rating by the Board of Education of the City School District of the City of New York ("respondent") for the 2001-2002 school year.  The appeal must be dismissed.

Respondent employed petitioner as a mathematics teacher at Forest Hills High School from September 1999 to September 2002.  During the 2001-2002 school year, several incidents occurred that resulted in disciplinary charges against petitioner for insubordination and "conduct unbecoming a professional pedagogue." 

On June 14, 2002, a disciplinary hearing was held to review the allegations, and by letter dated June 18, 2002, petitioner was found to have been insubordinate to her supervisors and to have engaged in conduct unbecoming a teacher.  Petitioner subsequently received an unsatisfactory rating on her annual performance evaluation for the 2001-2002 school year. 

Petitioner resigned from her position in August 2002, effective September 2002. On June 30, 2003, the Chancellor"s designee denied petitioner"s appeal from the adverse rating.  This appeal ensued.  Petitioner"s request for interim relief was denied on August 13, 2003.

Petitioner alleges, among other things, that respondent"s negative rating was unfair and inaccurate.  She seeks reversal of the rating and payment of monies allegedly due upon her resignation.  Petitioner also asks that the Commissioner investigate certain actions taken by respondent"s staff.

Respondent contends that its negative rating of petitioner was rational and proper.  Respondent further submits that the Commissioner lacks jurisdiction, that petitioner has failed to exhaust her administrative remedies and that the petition is barred by the doctrine of election of remedies.

Respondent also sets forth an affirmative defense of timeliness in its memorandum of law that it does not raise  in its answer.  Section 275.12 of the Commissioner"s regulations requires that respondent assert its affirmative defenses in the answer.  A memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Grinnell, 37 Ed Dept Rep 504, Decision No. 13,914; Appeal of Coombs, 34 id. 253, Decision No. 13,301; Appeal of the Bd. of Educ., Tuxedo Union Free School Dist., 33 id. 626, Decision No. 13,171). Accordingly, while I have reviewed respondent"s memorandum of law, I have not considered the portion regarding timeliness.

The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Smolen, 43 Ed Dept Rep ___, Decision No. 15,000; Appeal of Jacobson, 37 id. 75, Decision No. 13,808; Appeal of a Student with a Disability, 36 id. 287, Decision No. 13,726).  The record indicates that petitioner commenced an action in New York State Supreme Court, Westchester County, arising out of the same set of facts and seeking similar relief to that sought in this appeal.  In light of petitioner"s election of remedies, I must dismiss this appeal.

The doctrine of resjudicata also compels dismissal.  Subsequent to the commencement of this appeal, the Supreme Court dismissed petitioner"s complaint.  Where, as here, a court of competent jurisdiction has already denied claims identical to those raised before the Commissioner, an appeal pursuant to Education Law "310 does not lie (Appeal of Smolen, supra).

Moreover, with respect to petitioner"s request for multiple investigations of the matters set forth in the petition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Simmons, 43 Ed Dept Rep ___, Decision No. 14,899; Appeal of Coleman, et al., 42 id. 256, Decision No. 14,845; Application of Wilson, 41 id. 196, Decision No. 14,663).