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Decision No. 16,090

Appeal of MICHAEL P. THOMAS from action of the New York City Department of Education, and application for the removal of High School Superintendent Francesca Pena.

Decision No. 16,090

(July 10, 2010)

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Abra Mason, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the actions of the New York City Department of Education (“Department”) and seeks the removal of High School Superintendent Francesca Pena (“Pena”, collectively “respondents”).  The appeal must be dismissed and the application for removal must be denied.

Petitioner is a certified, tenured mathematics teacher in respondents’ school district.  In his petition, he details a number of events that occurred in the 2007-2008 school year.  On September 4, 2008, petitioner requested that Pena initiate charges against Principal David J. Jimenez (“Jimenez”) for certain actions, including alleged retaliatory actions against petitioner for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.  By letter dated November 20, 2008, Pena advised petitioner that she referred the matter to the Special Commissioner of Investigation for the New York City School District (“SCI”).  By letter to Pena dated May 5, 2009, petitioner requested the results of the investigation.  Pena did not respond.  This appeal ensued.[1]

Petitioner requests that I guide and advise the Chancellor in the removal of Jimenez and Assistant Principal Charles Kwan (“Kwan”) for allegedly falsifying the results of a Regents examination, retaliating against petitioner for reporting such alleged scoring irregularities and the misuse of Title I funds.  Petitioner also requests that I remove Pena for neglect of duty by failing to take all necessary steps to ensure the integrity of community district operations.  He also asks that I guide and advise the Chancellor of the neglect of duty by the Chancellor’s Office of Special Investigation (“OSI”) and SCI. 

Respondents allege that the appeal is untimely, that petitioner has failed to exhaust administrative remedies and that the petitioner fails to state a cause of action.  Respondents also allege that petitioner has failed to join necessary parties and that the appeal is moot in part. 

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442). 

The affidavits of service reflect that the petition was served on Kwan, Jimenez and Pena on June 24, 2009 and that the Chancellor, OSI and SCI were served on June 25, 2009.  Therefore, since all actions that petitioner challenges occurred more than 30 days prior to these dates (including the scoring of the January 2008 Regents examination; Jimenez’s request for petitioner to be medically examined in March 2008; OSI’s failure to investigate Jimenez’s purported retaliatory action against petitioner in August 2008 and Pena’s alleged failure to initiate charges against Jimenez in September 2008), these claims must be dismissed as untimely. 

In September 2008, petitioner requested that Pena investigate his allegations.  In November 2008, Pena informed him that she referred matter to SCI.  By letter dated May 5, 2009, petitioner requested from Pena the results of the investigation and asked her to respond within 10 business days.  Petitioner calculates May 28, 2009 as the 10th business day after Pena received the letter and argues that he had 30 days from that date to commence an appeal.  I disagree.  Pena responded to petitioner in November 2008 with respect to the actions complained of in this appeal.  Petitioner’s May 2009 letter, like a request for reconsideration, does not extend the time within which an appeal must be commenced (Appeal of Lippilt, 49 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 49 id. 254, Decision No. 15,851).

In light of this disposition, I need not address the parties’ remaining contentions.



[1] By letter dated July 6, 2009, Special Counsel for the SCI notified petitioner that SCI reviewed his claims and determined that Jimenez’s actions were not solely and directly related to petitioner’s reports of alleged misuse of funds and scoring irregularities to the State Education Department.