Decision No. 16,894
Appeal of MATTHEW NADOLECKI from action of the Board of Education of the William Floyd Union Free School District regarding termination of employment.
Decision No. 16,894
(April 6, 2016)
Bond, Schoeneck & King, PLLC, attorneys for respondent, Jessica C. Satriano, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the William Floyd Union Free School District (“respondent” or “board”) to terminate his teaching position. The appeal must be dismissed.
Petitioner was granted a three-year probationary appointment as a special education math teacher in respondent’s district, effective September 29, 2010 through September 28, 2013. By letters dated April 5, 2012 and April 17, 2012, the superintendent advised petitioner that he would recommend to the board termination of his services as a probationary teacher.
By email dated April 16, 2012, petitioner requested a written statement of the reasons for the superintendent’s recommendation. In an April 18, 2012 email, petitioner commenced a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.” By letter dated April 23, 2012, the superintendent stated that his recommendation was based on petitioner’s failure to meet district expectations in the following areas: ineffective and inadequate classroom teaching techniques; ineffective implementation of lesson plans; ineffective communication with parents; and ineffective and sometimes inappropriate guidance for students. That same day, petitioner’s Level 1 grievance was denied. Petitioner then filed a Level 2 grievance, which was denied on May 3, 2012.
At its May 22, 2012 meeting, the board accepted the superintendent’s recommendation and voted to terminate petitioner’s probationary appointment, effective June 30, 2012. By letter dated May 24, 2012, the superintendent notified petitioner of the board’s actions. This appeal ensued.
Petitioner asserts that his termination was in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities. Petitioner also asserts that the April 23, 2012 letter did not comply with Education Law §3031. Petitioner seeks reinstatement to his probationary position.
Respondent maintains that it complied with all applicable laws, including Education Law §3031 when it terminated petitioner and that the petition fails to state a claim upon which relief may be granted. Respondent also asserts that the Commissioner lacks jurisdiction over this appeal, that petitioner lacks standing to bring this appeal and that the appeal is untimely. Respondent further contends that the April 23, 2012 notice complied with Education Law §3031.
It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Jenkins, 36 id. 497, Decision No. 13,798). The record reflects that on April 18, 2012, petitioner brought a grievance in which he alleged that the district’s efforts to terminate him violated their collective bargaining agreement and asserted that certain contractual provisions regarding evaluations and observations were not adhered to. He further asserted that he believes he was being terminated for not “staying under the radar” and for participating in a “protected union activity”. His grievance sought rescission of his termination. He then sought a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012. Petitioner does not allege in this appeal that the union breached its duty of fair representation with respect to that grievance.
Petitioner argues that since he commenced his grievance prior to his actual termination by respondent, the Commissioner should retain jurisdiction over this appeal. However, petitioner is attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and I reject petitioner’s argument that because he only grieved respondent’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination. Petitioner’s claims that respondent violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction (Matter of Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501; Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Jenkins, 36 id. 497, Decision No. 14,784).
Such claims would be dismissed under the doctrine of election of remedies in any case. The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Stephenson, 51 Ed Dept Rep, Decision No. 16,329; Appeal of Hinson, 48 id. 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). Therefore, to the extent the issues raised in this appeal were the subject of petitioner’s prior grievances, such claims must be dismissed on this additional ground (see Appeal of Coughlin, 41 Ed Dept Rep 484, Decision No. 14,751).
In any case, petitioner’s remaining claims must be dismissed on the merits. A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Education Law §3012[b]; Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of McBeth, 43 id. 52, Decision No. 14,913). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).
Petitioner has not established that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. Although petitioner alleges that he was terminated in retaliation for alleged "whistle-blowing", on this record he has not met his burden of establishing that his dismissal was in retaliation for whistleblowing. Petitioner makes conclusory allegations that his termination was in retaliation for his involvement in an investigation by the school district attorney into alleged illegal activities in the district. It appears from the record that petitioner first learned of his impending termination in a meeting with his principal on April 4, 2012. He alleges in the petition that he met with the school district attorney over several days in the 2011-12 school year. However, the school district attorney attests in an affidavit that the first time she interviewed petitioner as part of the investigation was on April 25, 2012, after petitioner knew of his termination and had commenced his grievance. The petitioner does allege that he reported an alleged breach of security and illegalities in the spring 2011 test administration, and that he reported various other incidents that occurred in 2011, including an allegation of sexual harassment by his supervisor and other unspecified matters, but he has not proven that these various reports occurred prior to April 4, 2012 or that there is a causal connection between such reporting and his termination.
On the contrary, the superintendent’s affidavit indicates that “he had no knowledge of any of petitioner’s alleged ‘whistle blowing’ activities when he recommended that petitioner’s probationary appointment be terminated” and the record indicates that respondent had ample grounds for terminating petitioner having nothing do with retaliation. The record reflects that respondent documented specific situations wherein petitioner’s conduct raised serious concerns about his professionalism and judgment in observation reports dated January 10, 2011 and January 30, 2012, and in other documents that were previously given to petitioner and discussed with him during his employment. As set forth in the superintendent’s affidavit, his recommendation to terminate petitioner, which was accepted by the board, was based on petitioner’s observed failure to meet district expectations in the following areas: ineffective and inadequate classroom teaching techniques; ineffective implementation of lesson plans; ineffective communication with parents and ineffective and sometimes inappropriate guidance for students. Although petitioner disagrees with the decision to terminate his services, he does not establish that respondent terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription. Thus, petitioner has failed to meet his burden of proof.
To the extent that petitioner alleges that the district violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, this claim must also be rejected. Petitioner has not established that respondent failed to comply with the requirements of Education Law §3031 (see Appeal of Dorcely, 45 Ed Dept Rep 383, Decision No. 15,358). Moreover, even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date (Zunic v. Nyquist, et al., 48 AD2d 378, affd 40 NY2d 962; Appeal of Dorcely, 45 Ed Dept Rep 383, Decision No. 15,358; Appeal of Gold, 34 id. 372, Decision No. 13,347).
THE APPEAL IS DISMISSED.
END OF FILE
 I note that petitioner attempts to raise new allegations in his memorandum of law regarding occasions prior to April 4, 2012, in which petitioner allegedly reported legal issues involving the district’s special education program. Those allegations are not properly before me, since a memorandum of law may not be used to add belated assertions or exhibits 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).