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Decision No. 16,671

Appeal of FAITH HART, from action of the Board of Education of the City School District of the City of Rochester and Superintendent Bolgen Vargas regarding termination of a probationary appointment.

Decision No. 16,671

(September 26, 2014)

Edwin Lopez-Soto, General Counsel, attorney for respondents, Cara M. Briggs, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Rochester City School District (“respondent board”) and Superintendent Bolgen Vargas (collectively referred to as “respondents”) to terminate her probationary appointment.  The appeal must be dismissed.

     The record indicates that petitioner is a certified public school administrator who was employed by the district as a probationary Special Education School Improvement Specialist.  Petitioner’s three-year probationary appointment was set to expire on November 22, 2013.  On November 19, 2013, petitioner was advised that respondent superintendent would not be recommending her for tenure.  At that time, petitioner was offered a one-year extension of her probationary term, which she subsequently declined. By letter dated November 19, 2013, petitioner was notified that respondent superintendent was recommending to respondent board that her probationary appointment be discontinued as of January 19, 2014.  The letter also advised petitioner that the recommendation would be considered at respondent board’s December 19, 2013 meeting and that she had the right to request a written statement describing respondent superintendent’s reasons for the recommendation and to submit a written response thereto.  By letter dated November 19, 2013 from the Association of Supervisors and Administrators of Rochester, petitioner requested a written statement of the reasons leading to her termination.  Respondent superintendent responded to petitioner’s request by letter dated December 2, 2013, in which he provided the reasons for his recommendation.  Petitioner submitted her response to the same by letter dated December 10, 2014.

 At its December 16, 2013 meeting, the board voted to reject the recommendation to terminate petitioner. Thereafter, petitioner was advised, by letter dated December 17, 2013, that her employment was being terminated as of January 19, 2014.  This appeal ensued.

 Petitioner claims that she fulfilled her job responsibilities, had positive evaluations and no disciplinary actions, and was recommended for tenure by two supervisors. For those reasons, petitioner contends that she should be granted tenure.[1]  She requests an order declaring that she be rehired by respondent district and granted tenure, together with “back pay or monetary rewards.”

 Respondents contend that the superintendent’s decision not to recommend petitioner for tenure was supported by a rational and legitimate basis.  Additionally, respondents claim that petitioner was not denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested in accordance with 8 NYCRR §275.10.  Finally, respondents contend that petitioner’s appeal is untimely and the petition lacks any showing of good cause for her delay.  For all of the above respondents assert that the appeal must be dismissed.

Respondent objects to petitioner’s reply.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent argues that the appeal, which was commenced on July 18, 2014, must be dismissed as untimely and that the petition fails to allege good cause for the delay.  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 Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  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 K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  In this case, even allowing the usual five days for mailing, petitioner’s appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination and the appeal is untimely (see Appeal of Wright, 45 Ed Dept Rep 356, Decision No. 15,347).

By letter dated July 17, 2014 and received by my Office of Counsel on July 24, 2014 – the same date the petition was received – petitioner attempts to explain her delay in commencing the appeal.  Specifically, petitioner states that in May 2014, she wrote to the State Education Department and received a response in June 2014 advising her that she could appeal the superintendent’s decision to the Commissioner without an attorney.  Petitioner states that she was previously unaware that she could appeal without an attorney.  Although §275.16 of the Commissioner’s regulations requires that good cause for delay be alleged in the petition, the record indicates that petitioner, who is not represented by counsel, attempted to include such explanation by submitting a letter at the time she filed her petition.  Even if I accept petitioner’s letter, however, she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.  It is well-settled that, 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 Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  I find no unusual circumstances in this case and the appeal must therefore be dismissed as untimely.

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





[1] I note that petitioner does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (see e.g., Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329).