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Decision No. 16,306

Appeal of NAYANA VYAS from action of the New York City Department of Education, Superintendent Elena Papaliberios, and Principal Iris Blige regarding an unsatisfactory rating and other personnel matters.

Decision No. 16,306

(September 19, 2011)

Malathi Echambadi, Esq., attorney for petitioner

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondents, James L. Hallman, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the actions of the New York City Department of Education (“NYCDOE”), Superintendent Elena Papaliberios (“Papaliberios”), and Principal Iris Blige (“Blige”)(collectively “respondents”) in rating her unsatisfactory (“U-rating”), making certain teaching assignments, and extending her probationary period.  The appeal must be dismissed. 

On or about August 30, 2007, petitioner began a three-year probationary appointment as a mathematics teacher at Fordham High School for the Arts (“FHSA”) in the New York City School District.  During the 2007-2008 school year, petitioner exclusively taught mathematics courses.  According to respondents, despite being provided with critiques of her lessons after classroom observations and professional development support, petitioner had demonstrated difficulty in a number of areas. Nonetheless, on or about June 20, 2008, petitioner received a satisfactory rating (“S-rating”) on her annual professional performance review and report on probationary service (“annual review”).

During the 2008-2009 school year, petitioner also exclusively taught mathematics courses and was provided with professional development support.  On or about June 22, 2009, although petitioner received an S-rating on her annual review, she was also informed that she needed improvement in six areas. 

In September 2009, petitioner was assigned to teach remedial math, health and forensics and was given three preparation periods (“prep periods”) to prepare for these courses.  In November 2009, petitioner was also assigned to assist in an anatomy review course due to the unexpected resignation of the teacher assigned to that course. 

During the spring of the 2009-2010 school year, petitioner was assigned to teach anatomy, forensics and introduction to psychology and was given two prep periods.  The parties dispute whether petitioner offered and/or consented to teach any or all of the aforementioned courses, all of which are outside of her certification area of mathematics.

In addition to her teaching duties during the 2009-2010 school year, petitioner was also assigned to serve as a senior advisor and a scanning teacher.  A scanning teacher observes students as they pass through the school’s metal detectors. 

According to respondents, petitioner was provided with extensive professional development opportunities during the 2009-2010 school year.  Petitioner further met with an assistant principal throughout the school year, who conducted both informal and formal observations of petitioner and made suggestions as to how she could improve her teaching performance.   

On or about April 12, 2010, petitioner met with respondent Blige and was offered the opportunity to enter into an extension of probation agreement (“extension agreement”) because her performance had not improved, which put her at risk of being discontinued on probation.  According to respondents, the extension agreement was offered to petitioner to provide her with an opportunity to satisfactorily complete probation by demonstrating improved performance during an additional year of probation.  On April 16, 2010, petitioner signed the extension agreement after consulting with her union representative, who attended the meeting with her.  The extension agreement extended her probationary period to September 1, 2011.

On or about June 28, 2010, petitioner received an overall U-rating on her annual review which included U-ratings in seven categories and “needs improvement” ratings in four other categories.  That day, petitioner appealed her U-rating to the NYCDOE Office of Appeals and Reviews (“OAR”).  Simultaneously, this appeal ensued.

Petitioner asserts that her U-rating was the result of gross error, bad faith and malice by respondent Blige.  Petitioner maintains that she was inappropriately assigned to teach courses outside of her certification area without her consent and that respondent Blige illegally reassigned her from the mathematics department to the science department.  Petitioner claims that respondent Blige violated NYCDOE’s collective bargaining agreement with the United Federation of Teachers (“UFT”) by assigning her to perform unpaid duties as a scanning teacher and senior advisor and by requiring her to teach four different classes per semester for which she had to prepare during the 2009-2010 school year. 

Petitioner seeks reversal of her U-rating and its removal from her personnel file.  Petitioner further requests that her U-rating be replaced with an S-rating and that she be granted tenure retroactive to September 2010.  Petitioner also seeks to be transferred back to FHSA’s mathematics department.   

Respondents maintain that, with the exception of petitioner’s challenge to her U-rating, the appeal is time-barred.  They further contend that the petition must be dismissed for failure to exhaust administrative remedies and state a cause of action.  Respondents also assert that the petition is barred, in whole or in part, by the extension agreement.

I must first address several procedural issues.  Pursuant to §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer. There is no dispute that petitioner’s memorandum of law and accompanying affidavit were served late. The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  However, there has been no such showing here.  I find unavailing petitioner’s excuse that she did not retain counsel until approximately three months after she commenced this appeal.  Therefore, I have not considered petitioner’s untimely memorandum of law and accompanying affidavit.  

With the exception of petitioner’s challenge to her June 28, 2010 U-rating, the appeal must be dismissed either as untimely, moot or both.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The instant appeal was commenced on or about July 28, 2010.  Thus, as discussed below, to the extent that the petition raises claims that challenge any decisions or actions which occurred prior to June 28, 2010, such claims must be dismissed as untimely. 

Petitioner challenges her scanning teacher and senior advisor assignments for the 2009-2010 school year, as well as her assignment to teach four different classes per semester for which she had to prepare.  Since these assignments occurred well before June 28, 2010, all claims regarding them must be dismissed as untimely.

In addition, petitioner challenges the validity of her extension agreement with NYCDOE, which was executed on or about April 16, 2010.  Thus, petitioner’s claim regarding this agreement must be dismissed as untimely because her time to challenge it expired on or about May 16, 2010. 

Petitioner also challenges her assignment to teach remedial math, health and forensics courses during the fall semester of the 2009-2010 school year, as well as her assignment to assist in teaching a remedial anatomy course.  Petitioner further challenges her alleged reassignment to FHSA’s science department, as well as her assignments to teach anatomy, forensics and introduction to psychology courses during the spring semester of that school year.  Although assigning a teacher to teach outside of her certification area may constitute a continuing wrong and withstand a timeliness challenge (seeAppeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919; Appeal of Boyle, 46 id. 496, Decision No. 15,574), in this instance the matter is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record indicates that petitioner no longer teaches at FHSA but has received a new assignment at a new school and there is nothing in the record indicating that she is currently teaching outside her area of certification.

With respect to her claim that she was reassigned to the science department, such claim arose prior to June 28, 2010 and is untimely, as well as moot for the reasons stated above.

Petitioner’s only remaining claim is her challenge to her June 28, 2010 U-rating.  However, this claim must be dismissed for failure to exhaust administrative remedies.  The record reflects that, on or about June 28, 2010, petitioner appealed her U-rating through an administrative process for appealing unsatisfactory annual performance ratings to OAR.  Prior to completion of the review of petitioner’s U-rating before a Chancellor’s Committee, petitioner initiated this appeal and the record does not indicate that the administrative review process has concluded.  Thus, since there is no indication that petitioner has exhausted her administrative remedy, her appeal must be dismissed. 

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