Monday, October 03, 2011

Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education


Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education
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. Decisions of the Commissioner of Education #16,306

Nayana Vyas served as a probationary mathematics teacher at Fordham High School for the Arts (“FHSA”) in the New York City School District. 

Although she was rated Satisfactory on her professional performance review and on the report of her probationary service during academic 2007-2008, the School District said that Vyas “had demonstrated difficulty in a number of areas.”

Although the School District said that Vyas “needed improvement in six areas.” She was rated satisfactory on her annual professional performance review and report on probationary service for academic 2008-2009.

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, Vyas was assigned to teach remedial math, health and forensics and subsequently assigned to assist in an anatomy review course due to the unexpected resignation of the teacher assigned to that course. 

In April 2010, Vyas was offered the opportunity to enter into an extension of probation agreement because her performance had not improved, which put her at risk of being discontinued on probation. Vyas agreed to an extension of her probationary period through September 1, 2011.

In June 2010 Vyas was given “an overall U-rating on her annual review which included U-ratings in seven categories and ‘needs improvement’ ratings in four other categories.”

Asserting that her U-rating was the result of gross error, bad faith and malice by her supervisors, Vyas filed an appeal with the Commissioner of Education seeking a reversal of her U-rating and its removal from her personnel file; replacing the U-rating with an S-rating and that she be granted tenure retroactive to September 2010. She simultaneously filed an administrative appeal with the New York City Department of Education.

The Commissioner dismissed all of Vyas’ appeals except her challenge to her June 28, 2010 U-rating as either as untimely, moot or both, noting that 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.

Thus Vyas’ only surviving claim was her challenge to her June 28, 2010 U-rating. 

Rather than being untimely, the Commissioner, in effect, ruled that this claim was premature as Vyas had not yet exhausted her administrative remedies at the time she had filed her appeal to the Commissioner. The Commissioner noted that Vyas had appealed her U-rating through an administrative process for appealing unsatisfactory annual performance ratings “and the record does not indicate that the administrative review process has concluded.”

Accordingly, said the Commissioner, her appeal must be dismissed. 

The text of the Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16306.html

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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