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Decision No. 13,784

Appeal of ANTONIO JENKINS, from action of the Board of Education of Community School District No. 3 of the City School District of the City of New York, regarding teacher salary.

Decision No. 13,784

(June 25, 1997)

MILLS, Commissioner.--Petitioner worked as a teacher in Community School District No. 3. Petitioner brought this appeal concerning actions taken by various district officials beginning in 1993 and possibly continuing through March 1996. Petitioner appears to be challenging respondent's failure to pay him for six weeks of work in 1993. In addition, petitioner raises allegations concerning discrimination and retaliation based on grievances filed against respondent. The appeal must be dismissed.

Respondent has failed to answer the petition. However, the petition does not contain a clear statement of petitioner's claim. Rather, it is so incomprehensible that it precludes respondent from fashioning an appropriate defense and precludes me from determining the nature of petitioner's claim, the basis of his claim or the relief sought. Accordingly, the petition must be dismissed as deficient under '275.10 of the Commissioner's regulations (SeeAppeal of Screen, 36 Ed Dept Rep 302).

In addition, it appears that the issue concerning petitioner's "release" or reassignment and salary allegedly owed to him was the subject of a grievance previously filed by petitioner under a collective bargaining agreement between the Board of Education of the City of New York and the United Federation of Teachers. The petition contains several references to proceedings before the Public Employment Relations Board ("PERB") and petitioner attaches one page of a PERB decision dated June 1995. Petitioner also refers to proceedings involving the New York State Division of Human Rights. Unfortunately, as he does not explain or attach the pleadings relating to these actions, and respondent has not answered, it is impossible to ascertain with certainty what issues were raised and disposed of in those proceedings.

It is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. of Ed. Commack UFSD v. Ambach, 70 NY2d 501; 522 NYS2d 831; Appeal of McCall, 32 Ed Dept Rep 367; Appeal of Garod, 31 id. 526; Appeal of Kassenbrock, 31 id. 324). To the extent that petitioner raises issues that he has already litigated in those forums, they may not be the basis for this appeal, and I have no jurisdiction to review petitioner's claims.

While it appears that petitioner has been pursuing multiple claims in several forums, one of his chief complaints appears to relate to salary he believes he was wrongly denied in the Spring/Fall of 1993. Although petitioner has not provided a coherent statement of facts or chronology, it is clear that the appeal is also untimely as to events which transpired four years ago. Section 275.16 of the Commissioner's regulations provides that an appeal to the Commissioner must be commenced within 30 days of the action sought to be reviewed.

Finally, petitioner also requests sums for costs and damages. It is well settled that the Commissioner of Education lacks authority to award damages, costs or attorney's fees (Appeal of Shravah, 36 Ed Dept Rep 396; Appeal of a Student With a Disability, 36 id. 248; Appeal of Reynolds, 35 id. 327; Appeal of Martin, 32 id. 381).

THE APPEAL IS DISMISSED.

END OF FILE