Decision No. 13,331

(January 17, 1995

SOBOL, Commissioner.--Petitioner, a tenured foreign language teacher in respondent board's school district, appeals a determination to assign her to teach in a particular school. The appeal must be dismissed.

Petitioner is certified to teach both Spanish and Italian and was first employed by respondent in 1983 at a middle school of the district. In 1986, respondent transferred petitioner to a full-time high school position. In 1987, respondent reassigned petitioner to the middle school. In the 1993-94 school year, respondent gave petitioner a split assignment of four classes at the Southwoods Middle School ("SWMS") and one at the H. B. Thompson Middle School ("HBT"). For the 1994-95 school year, respondent informed petitioner that she would have a full-time assignment at HBT. In June 1994, respondent denied petitioner's request to transfer to a full-time position at the high school. This appeal followed.

Petitioner contends respondent's refusal to transfer her to a full-time position at the high school is in retaliation for her testimony at a hearing in an unrelated matter. Further, she asserts that respondent's actions violate her seniority rights and that contract provisions require respondent to honor teachers' transfer requests whenever possible. Respondent contends the appeal is untimely and that its actions were not retaliatory. Respondent further asserts that by filing a grievance, petitioner has elected her remedy and that the matter is therefore outside the jurisdiction of the Commissioner of Education.

As a threshold matter, I find the appeal is timely. When a teacher is notified of a transfer effective the following school year, the petitioner is not aggrieved until the start of the school year in September (Appeal of Bales, 32 Ed Dept Rep 559; Appeal of Berowski, 28 id. 53). Petitioner's position was transferred commencing in September 1994. This appeal was initiated on June 6, 1994, prior to the commencement of the 1994-95 school year. Therefore, I find this appeal timely.

Respondent correctly asserts, however, that I lack jurisdiction to hear 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 that same issue (Matter of Board of Education of Commack UFSD v. Ambach, 70 NY2d 501, 522 NYS2d 831; Appeal of Garod, 31 Ed Dept Rep 526; Appeal of Kassenbrock, 31 id. 324; Appeal of Almeter, 30 id. 439; Appeal of Perri, 30 id. 277; Appeal of Reynolds, 29 id. 288). In this case, petitioner concedes that she pursued a grievance under the collective bargaining agreement regarding her assignment and various other issues before filing an appeal under Education Law '310. I therefore find that I am divested of jurisdiction to review the matter by virtue of petitioner's election of remedies.

THE APPEAL IS DISMISSED.

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