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Decision No. 16,097

Appeal of M.H. from action of Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, regarding an unsatisfactory rating.

Decision No. 16,097

(July 27, 2010)

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

STEINER, Commissioner.--Petitioner appeals the determination of Santiago Taveras, Interim-Acting Deputy Chancellor of the New York City Department of Education (“respondent”), denying her appeal of an unsatisfactory rating for the 2008-2009 school year and sustaining the rating.  The appeal must be dismissed.

Petitioner is a tenured teacher of mathematics employed at the Grover Cleveland High School (“Grover Cleveland”).  Up until the 2008-2009 school year, petitioner received a satisfactory rating for nine consecutive school years, three at Grover Cleveland and six at Far Rockaway High School under a previous principal, along with a number of satisfactory observation reports.  Petitioner received an unsatisfactory annual rating for the 2008-2009 school year on September 9, 2009 following two unsatisfactory observation reports dated September 12, 2008 and May 28, 2009.

On June 25, 2009, petitioner appealed her unsatisfactory rating.  On September 17, 2009, the Chancellor’s Committee Chairperson conducted a review at which petitioner was represented by an advocate from her union.  The principal and assistant principal who conducted the classroom observations answered questions at the review, and petitioner, as well as her representative, made statements.  By letter dated October 15, 2009, respondent informed petitioner that her appeal was denied and the rating was sustained.  This appeal ensued.

Petitioner claims that the October 15, 2009 determination was arbitrary, capricious, irrational and issued in bad faith.  Petitioner contends, interalia, that her right to due process was violated by the Chancellor’s Chairperson who conducted the review and complains of the quality of representation provided by her non-attorney advocate.

Respondent asserts, among other things, that the petition fails to state a cause of action and 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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  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 Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Petitioner admits receiving the October 15, 2009 determination on October 24, 2009.  However, she did not serve her petition until December 24, 2009, more than 30 days later.  Petitioner alleges illness caused a delay in completing the petition.  I have consistently held that neither illness nor ignorance of the appeal process is a valid excuse for late commencement of an appeal (Appeal of D.M., 47 Ed Dept Rep 433, Decision No. 15,745).

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