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Decision No. 16,607

Appeal of MARILYN BROOMER from action of the Board of Education of the Huntington Union Free School District and Superintendent James W. Polansky, regarding an appointment and preferred eligibility rights .

Decision No. 16,607

(April 11, 2014)

Glass Krak ower LLP , attorneys for petitioner, Brian D. Glass, Esq. , of counsel

Guercio & Guercio, LLP , attorney s for respondents, John P. Sheahan, Esq. , of counsel

KING, JR., Commissioner. -- Petitioner appeals the decision of the Board of Education of the Huntington Union Free School District (“ respondent ” or “ board”) to abolish her position as an elementary education teacher . The appeal must be dismissed.

On or about July 6, 2004, petitioner was appointed to a probationary position in the tenure area of elementary education, effective September 1, 2004. On June 18, 2007, respondent granted petitioner tenure in the elementary education tenure area, effective September 1, 2007. In August 2010, respondent closed the Jack Abrams Intermediate School. As a result, the district excessed 13 elementary education teachers. On June 30, 2011, petitioner was excessed from h er position and placed on a preferred eligibility list. For the 2011 - 2012 school year, four vacancies were created. On or a bout May 26, 2011, petitioner filed a Step Two grievance with the district challenging her termination and the di strict’s decision to excess her and seeking reinstatement, damages and attorneys fees. On or about August 29 , 2011, the board approved petitioner’s appointment as a full y ear long - term substitute elementary school teacher for the 2011 - 2012 school year. Petitioner served in that position from on or a bout September 6, 2012 through June 30, 2012, with no loss of benefits. For the 2012 - 2013 school year, three vacancies were created in the district. Petitioner was not 2 recalled from the preferred eligibility list. This appeal ensued.

Petitioner alleges that she was improperly excessed from her position in the tenure area of elementary education pursuant to Education Law §§25 10 and 3013(2) because she was not the least senior person in the elementary education tenure area . Petitioner also asserts that she was not recalled from the preferred eligibility list at the start of the 2012 - 2013 school year , in violation of Education Law §§2510 and 3013 . Petitioner requests reinstate ment effective September 2012 with full back pay, seniority and all other benefits and asks that I order respondent to pay attorney fees, costs, and disbursements related to this proceeding.

Respondent al leges that petitioner has failed to join and properly serve necessary parties . Respondent also asserts that petitioner has failed to demonstrate that the board acted in an arbitrary or capricious manner or abused its discretion in excessing petitioner and that the record supports the district’s determination that petitioner does not have a legal right to be recalled. Respondent also contends that the appeal is untimely to the extent that petitioner challenges the district’s decision to excess her in 2011 and that petitioner’s claims are barred by election of remedies.

At the outset, I must address s everal procedural issues. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibit s that are not part of the pleadings ( Appeal of Bruning and Coburn - Bruning , 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright , 47 id . 202, Decision No. 15,668). Therefore, while I have considered the parties’ memorand a of law, I have not considered any belated assertions that are not part of the pleadings.

Respondent also asserts that the appeal is 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, un less any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt , 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams , 48 id . 343, Decision No. 15,879). The instant appeal involves the abolition of an elementa ry teacher position pursuant to Education Law §§2510(2) and 3013(2) and petitioner’s contention that she was improperly terminated 3 because she had accrued more seniority in the elementary tenure area than other elementary teachers . This appeal also involv es a challenge to petitioner’s recall rights under §§2510(1) or 3013(1), and petitioner’s contention that she was entitled to be recalled from the preferred eligibility list to one of the three vacancies that was created in the elementary tenure area in the 2012 - 2013 school year.

The parties, however, disagree as to the event that triggers the running of the 30 - day period for each of these claims. In Appeal of Gordon , 53 Ed Dept Rep , Decision No. 16,582, I acknowledged the conflict in the past Commission er’s decisions on timeliness issues relating to abolitions and recalls and in an effort to provide clarit y to the field, I provided the following rule:

“In cases like the present appeal in which the teacher claims that his or her services have been discont inued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30 - day time period for commencing an appeal under Education Law §310 begins on the effective date of the abo lition ( see e.g. , Matter of Boykin , 15 Ed Dept Rep 3 4 8, Decision No. 9,204; Matter of Elkins , 14 id. 193, Decision No. 8,934). ... Where on the other hand, the wrong alleged by the teacher

...

[ relates to a claim ] under Education Law §§2510(1) or 3013(1) t hat a school district has created a new position to which the excessed teacher is entitled or that the excessed teacher is entitled to reinstatement to the position from a preferred eligible list pursuant to Education Law §§2510(3) or 3013(3), [ such a clai m would be timely if commenced within 30 days of the date on which another teacher commenced service in a position to which the petitioner alleges he or she is entitled. ] ”

Applying these rules to the instant appeal , petitioner’s claims relating to the abol ishment of her position are untimely because she failed to commence this appeal within 30 days of June 30, 2011, the date she was excessed from her position. It is also unclear from the record what date the three teachers commenced service in the elementary positions to which the petitioner alleges she is entitled in the 2012 - 2013 school year and/or whether petitioner commenced service within 30 days of such date since she has failed to name or provide proof of service of these teachers in this appeal. 4 Ne vertheless, recognizing the prior inconsistent Commissioner’s decisions and in accordance with my decision in Appeal of Gordon , 53 Ed Dept Rep Decision No. 16,582, since the instant appeal was pending before me on the date of my decision was issued in Appeal of Gordon , 53 Ed Dept Rep Decision No. 16,582, I decline to dismiss these claims as untimely and excuse the delay in commencing the appeal.

Nevertheless, the appeal must be dismissed. The prior commencement of an action or proceeding in another forum fo r the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner ( Appeal of Hinson , 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of A.D. , 46 id . 236, Decision No. 15,492; Appeal of Qureshi , 43 id . 504, Decision No. 15,066). It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum ( Appeal of T.G. and R.G. , 46 Ed Dept Rep 95, Decision No. 15,451 ). Here, the record reflects that petitioner has filed a Step Two grievance with the district pursuant to its Collective Bargaining Agreement, challenging the district’s decision to excess her and its failure to recall her in the 2011 - 2012 school year. By letter dated October 18, 2011, the Superintendent denied petitioner’s grievance. 1 Therefore, the portion of this appeal that challenges petitioner’s excessing and her recall rights for the 2011 - 2012 school year must be dismissed in light of petitioner’ s election of remedies.

The remainder of petitioner’s appeal relating to the district’s failure to recall her from the preferred eligibility list in September 2012 must also be dismissed for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such ( Appeal of Murray , 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller , 48 id . 465, Decision No. 15,917; Appeal of Williams , 48 id . 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served

1 The record further indicates that petitioner filed a Notice of Claim in federal court , the Eastern District of New York, arising out of the same set of fac ts and that petitioner asserts, among other things, breach of contract and claims under Title VII of the Civil Rights Act and the federal and State constitutions. 

with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense ( Appeal of Murray , 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller , 48 id . 465, Decision No. 15,917; Appeal of Williams , 48 id . 343, Decision No. 15,879). If petitioner’s request for relief were granted, the rights of the three d uly certified teachers appointed in September 2012, each of whom allegedly had less seniority in the elementary tenure area than petitioner, would be affected, thus making those teachers necessary parties to this action. Since petitioner has failed to nam e and serve these individuals, I must dismiss petitioner’s remaining claims. I also note that petitioner has named the superintendent in the petition, however, there is no evidence in the record that he was personally served. Therefore, petitioner’s clai ms against the superintendent must also be dismissed for lack of personal service.

Finally, petitioner requests attorney fees and reimbursement for the costs and disbursements of this proceeding. Since the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 ( Application of Kolbmann , 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B. , 48 id . 332, Decision No. 15,875), these claims must also be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE