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Decision No. 17,688

Appeal of N.M. from action of the New York City Department of Education, P.S. 35 Nathaniel Woodhull School, and Principal Mark Dempsey regarding a personnel action.

Decision No. 17,688

(July 9, 2019)

Zachary W. Carter, Corporation Counsel, attorney for respondents, Katerina Souliopoulos, Esq., of counsel

EILA., Commissioner.--Petitioner appeals from actions taken by New York City Department of Education (“DOE”), P.S. 35 Nathaniel Woodhull School (“P.S. 35”), and Mark Dempsey as principal of P.S. 35 (“principal”) (collectively, “respondents”), concerning her employment status at P.S. 35.  The appeal must be dismissed.

According to the record, petitioner was employed by DOE as a probationary special education teacher and assigned to P.S. 35 during the 2017-2018 school year.  Although the parties agree that petitioner’s probationary period was originally scheduled to conclude on or about February 1, 2018, respondents assert on appeal that petitioner’s probation was extended until February 1, 2019, pursuant to a written extension agreement.  The copy of the extension agreement submitted by respondents, however, is unsigned, and contains a handwritten notation from the principal indicating:  “I met with the teacher on 1/26/18.  Instead of signing, she said she needed more time to read this over.”  It is otherwise unclear from the record whether, or when, this extension agreement went into effect.

In a letter to petitioner dated April 27, 2018, the principal asserted that petitioner had been absent for five consecutive days without approval, and that such unexcused absences could subject her to discipline.  The principal further indicated that petitioner had “not responded to email messages sent to [her] DOE and personal email addresses, text messages to [her] cellphone and voice mail messages left on [her] cellphone ....”  The principal stated that petitioner had been absent for a total of 26 days for the 2017-2018 school year.

In a letter to petitioner dated May 10, 2018, the principal indicated that petitioner had “been absent for 14 consecutive days.”  In this letter, the principal indicated that petitioner had “emailed the school advising that [she was] requesting a leave through the end of the school year ....”  The principal stated that such leave request “was denied yesterday [i.e., May 9, 2018] and communicated to [petitioner] via email.”  The principal reiterated that petitioner’s absences were unauthorized and could subject her to discipline.  The principal gave petitioner three options: to return to work, file for retirement, or submit a letter of resignation.  If petitioner did not pursue one of those three courses of action by May 14, 2018, the principal indicated that petitioner would be “placed on an unauthorized leave by May 15, 2018,” and that any continued absences “will lead to disciplinary action, including termination of [her] probationary service” with DOE.  Respondents assert that petitioner did not respond to this letter or return to work for the remainder of the 2017-2018 school year.

According to petitioner, in June 2018, the principal informed her that she should not return to P.S. 35 for the upcoming (i.e., 2018-2019) school year.

By letter dated September 4, 2018, the principal informed petitioner that he had scheduled a meeting to “discuss [petitioner’s] unauthorized leave of absence, and excessive absences.”  The principal invited petitioner to “appear via phone conference, in writing, through [her] union representative, or in person.”  The principal further noted that, if petitioner failed to appear at the hearing, the principal would “make findings in [her] absence.”

By letter dated September 21, 2018, the principal indicated that petitioner failed to appear at the meeting described in the September 4, 2018 letter.  Although the principal acknowledged that petitioner “responded by certified letter that [she] would not be able to attend the meeting” and that such letter “arrived at school at 12:30pm on September 13th,” he nevertheless indicated that he would make “conclusions in [her] absences [sic].”  The principal found that petitioner had “been absent 66 days during the 2017-2018 school year” and that such absences were unauthorized.  The principal characterized petitioner’s absences as “excessive” and noted that she had “been removed from payroll.”  The principal further informed petitioner that she was no longer an employee of the school, and that she should not report to work for the 2018-2019 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 21, 2018.

Petitioner contends that respondents failed to provide her with notice regarding the termination or discontinuance of her employment.  Petitioner also asserts that she attained tenure by estoppel when respondents did not determine whether to grant her tenure by her alleged probationary date of February 1, 2018.  Petitioner seeks an order restoring her to her position as a special education teacher, an order granting her tenure by estoppel, a “due process hearing for any alleged cause for dismissal,” an award of backpay, money damages, lost wages, and all legal fees.

Respondents assert, inter alia, that petitioner’s appeal is untimely, and that she abandoned her position with P.S. 35 because she was absent for more than 20 consecutive days without prior approval.

First, I must address a procedural matter.  By letter dated January 11, 2019, petitioner requested permission to submit a late reply.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  The late submission of a reply may be excused where the petitioner demonstrates that there was good cause for the delay (see 8 NYCRR §276.3[a]; Appeal of Wood and Grosso, 57 Ed Dept Rep, Decision No. 17,358).  A party seeking an extension to file a reply must make such request prior to the expiration of the time to serve such reply (8 NYCRR §276.3[a]).

Respondent’s answer was served by mail on November 20, 2018.  Therefore, petitioner’s reply was due to be filed by December 5, 2018.  As noted, the record indicates that, by letter dated January 11, 2019, petitioner requested an extension of time to file her reply, and the affidavit of service indicates that the reply was served on January 29, 2019.  Here, petitioner did not serve a reply within 10 days of service of the answer, as required by 8 NYCRR §275.14(a), nor did she request a timely extension of the time to reply for good cause shown pursuant to 8 NYCRR §276.3(a).  Thus, the reply is untimely, and petitioner did not request an extension to file the reply prior to the expiration of the time to serve such reply.  Accordingly, petitioner has not established good cause for the delay in filing the reply, and I decline to accept the late reply and have not considered it in deciding this appeal (see Appeal of Wood and Grosso, 57 Ed Dept Rep, Decision No. 17,358; Application of Jones, et al., 55 id., Decision No. 16,823; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).

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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Here, although petitioner asserts that she has had ongoing electronic correspondence with a superintendent, through October 2018, concerning her employment and tenure status, petitioner’s claim accrued when she had actual knowledge of the facts underlying her claim (see Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, O'Brien v. King, et al.; Supreme Court, Albany County; judgment granted dismissing petition; July 3, 2012; aff’d 112 AD3d 188 [3d Dept. 2013]; appeal dismissed 22 NY3d 1125 [2014]; mot. for leave to appeal den. 23 NY3d 903 [2014]; cert den. 135 SCt 404 [2014]).  Petitioner indicates in the petition that the principal informed her “not to return back” to P.S. 35 for the 2018-2019 school year “on or around June 25, 2018.”  Thus, by her own admission, petitioner was aware of the facts underlying this claim more than 30 days prior to the commencement of this appeal.  Consequently, her commencement of the instant appeal on October 31, 2018 is untimely.  Petitioner does not set forth good cause in the petition for such delay (8 NYCRR §275.16).

Moreover, even assuming, arguendo, that the principal’s September 21, 2018 letter was the date upon which petitioner’s claim arose, petitioner’s appeal would still be untimely.  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).  Here, affording the usual five days for mailing, and excluding Sundays and holidays, any appeal from the principal’s September 21, 2018 letter would have been due to be served by October 29, 2018.  Therefore, petitioner’s service of the petition, on October 31, 2018, was untimely and warrants dismissal.

Although the petition must be dismissed as untimely, I note for the benefit of the parties that the record indicates that, at the time of the events giving rise to this appeal, petitioner was a member of the United Federation of Teachers, a party to a 2009-2018 collective bargaining agreement (“CBA”) with DOE.  Respondent has submitted a copy of the CBA on appeal, which indicates that any rights petitioner may have under the CBA – such as whether “reasonable cause” exists regarding her failure to notify respondents about her alleged unauthorized absences – are “subject to the grievance procedure, including binding arbitration, set forth in Article 22 [of the CBA].”  Similarly, with respect to petitioner’s alleged abandonment of her position,[1] the CBA states, in pertinent part:

Teachers who are absent for 20 consecutive school days without notice shall be deemed to have resigned unless they have reasonable cause for failure to notify.  The issue of reasonableness of the cause and the penalty, if any, shall be subject to the grievance procedure [of the CBA].

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




[1] Although DOE claims on appeal that petitioner abandoned her position, DOE has provided documents which suggest that, at least as of October 2018, petitioner remained a DOE employee.  Additionally, although respondents allege that petitioner’s initial probationary period (originally due to terminate on February 1, 2018) was extended through February 1, 2019 via a probation extension agreement, the copy of this extension agreement submitted on appeal is unsigned.