Decision No. 12,654

(February 27, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Julie O'Neill, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to change his room assignment for the 1991-92 school year. The appeal must be dismissed.

Petitioner is employed by respondent as a science teacher. He has been assigned to William McKinley Intermediate School 259 (I.S. 259) since August 1970. Over the years, petitioner has been assigned to teach primarily in classrooms designed for science instruction. On June 24, 1991, however, the principal of I.S. 259 assigned petitioner a peripatetic program (i.e., one requiring him to travel among different classrooms to teach his assigned courses) for the 1991-92 school year. Instead of spending each day in a single classroom, as he has in previous years, petitioner's assignment for the 1991-92 school year requires him to monitor a homeroom and to teach 25 periods of science per week, in several different classrooms. The parties offer contradictory descriptions of the various classrooms. They agree, however, that petitioner's homeroom meets in a choral music room. Of the 25 instructional periods, moreover, petitioner is assigned to teach at least 14 in science classrooms, 4 in a room "historically used for science instruction" and 7 in regular classrooms.

On June 26, 1991, petitioner verbally complained to the school principal about his room assignments. Interpreting petitioner's complaint as an invocation of grievance procedures under the applicable collective bargaining agreement, the principal denied petitioner's "Step I" grievance. On July 10, 1991, petitioner appealed the principal's decision to the community school district superintendent. By letter dated July 16, 1991, however, the superintendent informed petitioner that he would not address the matter before discussing it with the principal, who was unavailable for the summer. The superintendent indicated that he would attempt to provide petitioner with a "Step II" response before the commencement of the 1991-92 school year. Shortly thereafter, on July 20, 1991, petitioner appealed the matter to the Chancellor of the City Board of Education (the "Chancellor"). He received no response. Petitioner commenced this appeal on August 20, 1991.

On September 11, 1991 the superintendent held a "Step II" grievance hearing in response to petitioner's July 10 letter. The record indicates that petitioner, his union representative and the principal attended this hearing. After the hearing, the superintendent denied petitioner's grievance. Apparently, petitioner attempted to pursue his grievance through "Step III," which requires union approval. By letter dated September 25, 1991, however, petitioner's union representative informed him that the union would not authorize a "Step III" proceeding.

Respondent contends that petitioner's appeal to the Commissioner is improper because petitioner invoked contractual grievance procedures before commencing this appeal. A school employee who has submitted an issue for resolution through a contractual grievance procedure may not subsequently bring an appeal to the Commissioner of Education seeking review of the same issue (Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501; Appeal of Almeter, 30 Ed Dept Rep 439; Appeal of Perri, 30 Ed Dept Rep 277). Petitioner admits that he pursued his grievance under the collective bargaining agreement. He insists, however, that he simultaneously pursued an "administrative" appeal, separate from the collective bargaining procedures, on completely different grounds. In petitioner's view, the grievance he pursued through the collective bargaining process specifically challenged his 1991-92 room assignments (allegedly a breach of the collective bargaining agreement), while his "administrative" appeal challenged the educational policy underlying those assignments. Petitioner argues, consequently, that I have jurisdiction to entertain this appeal.

Petitioner's arguments are unpersuasive. The record confirms that petitioner appealed to the Chancellor on July 20, 1991, nearly two months before the superintendent resolved the "Step II" grievance. Because an appeal to the Chancellor was neither required nor authorized at that point in the grievance process, petitioner apparently refers to the July 20 appeal when he speaks of his "administrative" proceeding. The document petitioner submitted to the Chancellor, however, is virtually identical to that which he submitted to the superintendent in the "Step II" proceeding. On the record before me, therefore, I find no support for petitioner's allegation of separate issues.

THE APPEAL IS DISMISSED.

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