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Decision No. 15,755

Appeal of JEFFREY ROSA from action of Joel I. Klein, Chancellor of the New York City Department of Education, regarding an unsatisfactory rating.

Decision No. 15,755

(June 4, 2008)

Berke-Weiss & Pechman LLP, attorneys for petitioner, Laurie Berke-Weiss, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Robert Katz and Robyn Silvermintz, Esqs., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of Joel I. Klein, Chancellor of the New York City Department of Education (“respondent”), denying his appeal of an unsatisfactory rating for the 2006-2007 school year and sustaining the rating.  The appeal must be dismissed.

Petitioner is a bilingual guidance counselor employed at Central Park East Secondary High School since September 2005.  On June 14, 2007, the school principal met with petitioner and his union chapter chair to discuss his job performance.  As summarized in a letter to the file dated June 15, 2007, the principal made petitioner aware that he was not pleased with petitioner’s job performance because petitioner was not fulfilling some basic job requirements.

The letter discussed seven concerns, highlighting four areas in particular where corrective action was needed and imposing a deadline for such action: 1) home outreach for students mandated for counseling and training on the computer system for tracking such outreach; 2) a filing system for every student; 3) weekly reports including daily logs; and 4) updated Individualized Education Program (IEP) documents for every student.  The letter also stated that “all of these job requirements were mandated parts of the work that you do here at the school and are an integral part of your counseling duties.  If these issues of disorganization and dereliction of duty persist, it may lead to further disciplinary action, including an unsatisfactory rating and termination of your employment.”  The principal and petitioner signed the letter and it was placed in petitioner’s file.

On June 22, 2007, petitioner, his union chapter chair and the principal met again.  Petitioner signed the Annual Professional Performance Review and Report (“Annual Review”), which the principal had signed and dated June 14, 2007 and had already assigned a “U” rating for “unsatisfactory.”  By letter dated June 25, 2007, the principal summarized the June 22, 2007 meeting, commenting about how issues raised in the first meeting and letter had been addressed, and concluded with the same two sentences quoted above about the potential for petitioner receiving an unsatisfactory rating.

On June 25, 2007, petitioner appealed his unsatisfactory rating.  On October 24, 2007, the Chancellor’s Committee Chairperson conducted a review at which the principal and petitioner were questioned.  The chairperson recommended that the unsatisfactory rating be sustained.

By letter dated December 21, 2007, the Deputy Chancellor for Teaching and Learning (the Chancellor’s designee) informed petitioner that his appeal was denied and the rating was sustained.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 13, 2008.

Petitioner claims that the Deputy Chancellor’s determination was arbitrary, capricious, and unsupported by substantial evidence.  He asserts that the principal provided unsubstantiated evidence and did not follow respondent’s procedures for rating a pedagogical staff member.

Respondent asserts that the petition fails to state a cause of action.  Respondent further asserts that the Department’s actions and the Chancellor’s decision were lawful and reasonable.

I must first address a procedural issue.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  When petitioner served his petition, he was not represented by counsel.  For his reply, petitioner engaged an attorney and attempted to add facts and arguments that should have been included in the petition.  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

The Deputy Chancellor’s letter was dated December 21, 2007.  Allowing for mailing and holidays, the letter was presumptively received on December 31, 2007.  Petitioner did not serve the petition until February 6, 2008, more than 30 days later.  Petitioner requests that I excuse his delay because he attempted to serve a petition on January 19, 2008 but that petition was rejected by my Office of Counsel for procedural deficiencies.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  I find no such circumstances here.  Accordingly, the appeal must be dismissed as untimely.

Even if it were not dismissed as untimely, the appeal would be dismissed on the merits.  In the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his judgment for that of the Chancellor (Appeal of Dowrie, 46 Ed Dept Rep 273, Decision No. 15,506; Appeal of Farrell, 45 id. 224, Decision No. 15,308; Appeal of Gordon, 36 id. 343, Decision No. 13,743).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

In this case, the petition is devoid of any evidence or argument to support petitioner’s allegations.  The petition merely claims, without more, that the Deputy Chancellor’s rating was arbitrary, capricious, and unsupported by substantial evidence, that the principal provided unsubstantiated evidence and did not follow respondent’s procedures for rating a pedagogical staff member.  Petitioner provides no documents or procedures and provides no reasons why the unsatisfactory rating was unjustified, or why a satisfactory rating should have been given.  Petitioner fails to establish facts upon which he seeks relief and fails to meet his burden of proof that the unsatisfactory rating assigned to him was the result of malice, prejudice, bad faith, or gross error.  Accordingly, I will not substitute my judgment for that of the Chancellor.

In light of this disposition, I need not consider the parties’ other claims.