Appeal of TRACY MORIARTY from action of the Board of Education of the Mount Sinai Union Free School District and Enrico Crocetti, superintendent, regarding a personnel matter.

Decision No. 17,265

(November 29, 2017)

Robert T. Reilly, Esq., attorney for petitioner, Jennifer A. Hogan, Esq., of counsel

Kevin A Seaman, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Mount Sinai Union Free School District (“board”) and Enrico Crocetti, the superintendent, (together “respondents”) with respect to calculating her salary.  The appeal must be dismissed.

Petitioner is a teacher employed by the Mount Sinai Union Free School District (“district”).  On or about October 26, 2011, petitioner requested medical leave for the birth of a child in January 2012.  Petitioner requested, and was granted, medical leave for the period beginning on or about January 11, 2012 and stated that she would return on April 16, 2012.  Petitioner stated that she would be using the maximum number of allotted sick days for her leave and taking family medical leave for the remainder of her leave.

Pursuant to the terms of the district’s collective bargaining agreement (“CBA”), petitioner was placed on paid leave for six weeks, through April 3, 2012.  After that, petitioner was placed on unpaid leave under the federal Family Medical Leave Act (“FMLA”) until her return on April 16.  Schools were closed from April 4 through April 13 for spring break, during which time teachers were not required to report to work, but received pay.

From April 3, through June 22, petitioner received a total of six paychecks, each of which were reduced in the amount of $332.03.  According to petitioner, on June 22, she received a paycheck from the district that represented six pay periods; that paycheck was also reduced in the amount of $1,992.18.  Petitioner alleges that the reduced amount in her paychecks reflected the district’s improper recoupment of monies paid for the work days over spring recess.  This appeal ensued.

Petitioner alleges that respondents violated Education Law §3101(3) by recouping eight days’ pay for April 4, 2012 through April 15, 2012.  Petitioner requests an order directing respondents to pay her for the eight days that were allegedly improperly recouped.

Respondents allege that petitioner has failed to state a cause of action or demonstrate a legal right to the relief requested.  Respondents claim that this matter is solely reviewable pursuant to the district’s CBA, not in an appeal to the Commissioner.  Nevertheless, respondents contend that petitioner was not entitled to pay prior to the stated return date in her request for leave, April 16, 2012.

I must first address a procedural issue.  On September 14, 2012, respondents submitted additional documents alleging that, subsequent to bringing this appeal, the Mount Sinai Teachers Association, on behalf of petitioner, commenced a grievance proceeding pursuant to the CBA regarding this matter and seeking identical relief.  Respondents assert that, due to the pending grievance, petitioner has elected her remedy and should not be permitted to maintain this appeal.  By letter dated September 27, 2012, petitioner responds to respondents’ September 14, 2012 submission and also disagrees that the grievance and the appeal are similar as the grievance involves two separate and distinct issues that are not presented in petitioner’s appeal to the Commissioner. In response to a directive by my Office of Counsel on April 28, 2017, petitioner submitted an affirmation by her attorney indicating that the grievance filed by the Mount Sinai Teachers Association on behalf of petitioner on September 7, 2012 was still pending.

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 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).  The instant appeal alleges a violation of Education Law §3101 by respondents due to the recouping of monies paid to petitioner for eight days over spring recess.  The record indicates that the grievance filed on petitioner’s behalf alleges violations of various articles of the CBA stemming from the district’s reduction in petitioner’s pay during a time period when district teachers were not required to be in attendance. 

In this appeal, petitioner is claiming a right to payment of salary for the period from April 4, 2012 through April 13, 2012 pursuant to Education Law §3101(3). Respondent asserts that its basis for making the deduction at issue was not proration of salary pursuant to Education Law §3101(3), but rather its interpretation of Article IX, section 2, paragraph 7, of the CBA.  Such provision states, in relevant part, “Teachers may use up to 12 weeks of accumulated sick time for the cesarean birth of a child (each week beyond 6 will be understood to be pursuant to FMLA).”  Respondent contends that it properly interpreted this contractual provision as intended to signify that a teacher in petitioner’s position is placed on unpaid leave under FMLA after week 6, consistent with federal law.  Petitioner has now brought a contractual grievance contending, among other things, that respondent has violated this same provision of the CBA relied upon by respondent.  Significantly, the grievance goes on to assert that petitioner “was not off payroll at any time during the 2011-12 school year and yet received salary reduction for days when no unit member was required to perform duties for the District.”

I agree with petitioner that, in determining the number of working days for which a teacher is entitled to salary pursuant to Education Law §3101(3), no deduction should be made from salary when a teacher performs all the services required of teachers in the district during the month (Matter of Hilferty, 23 Ed Dept Rep 53, Decision No. 11,133; Matter of Plant, 19 id. 175, Decision No. 10,084; Matter of Leake, 11 id. 179, Decision No. 8,408; Matter of Segall, 10 id. 222, Decision No. 8,285; Matter of Swaim, et al., 9 id. 23, Decision No. 8,031).  In computing petitioner’s salary for the month of April 2012, pursuant to Education Law §3101(3), therefore, the days of spring recess should have been counted as working days, under ordinary circumstances.

However, in Appeal of Zaccaro, 51 Ed Dept Rep, Decision No. 16,336, the Commissioner ruled that Education Law §3101(3) should not be interpreted to confer a right to salary for a teacher who has been placed on unpaid leave pursuant to the leave provisions of the applicable CBA.  In this appeal, respondent is arguing that petitioner was not entitled to compensation for the days of spring recess because, pursuant to Article IX, Section 2, paragraph 7 of the CBA, she had been placed on unpaid leave under FMLA.

Petitioner, subsequent to the initiation of this appeal, has filed a grievance and sought arbitration in which it is alleged that respondent actually violated Article IX, Section 2, paragraph 7 of the CBA by making deductions for the period from April 4, 2012 to April 13, 2012, the same period at issue in this appeal.  Tellingly, the grievance alleges that petitioner was not off payroll, i.e. not on unpaid leave, at any time during the 2011-2012 school year.

Consequently, in order to determine if petitioner is entitled to the relief requested, which is an order directing respondents to pay petitioner eight days’ pay for the period from April 4, 2012 to April 13, 2012, I would need to determine if petitioner was on unpaid leave during that period, pursuant to the CBA.  However, despite petitioner’s argument, that issue of contract interpretation has clearly been raised in the grievance filed by petitioner after the commencement of this appeal.  It is well-settled that a school employee who has elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal pursuant to Education Law §310 for review of the same matter (Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,235; Appeal of Kolessar, 56 id., Decision No. 17,035; Appeal of Nadolecki, 55 id., Decision No. 16,894).  In light of the strong public policy favoring internal grievance mechanisms and the finality of grievance processes in collective bargaining that was articulated by the Court of Appeals in Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, and in the interest of preserving the orderly administration of justice, I find that petitioner’s subsequent filing of a grievance on the same issue of contractual interpretation and seeking the same relief has divested me of jurisdiction over the determinative issue in this appeal.  Even though this appeal was commenced first, I find that the appeal must be dismissed under the doctrine of election of remedies.  To hold otherwise would create an unacceptable risk of conflicting decisions interpreting the relevant CBA provision and a decision under Education Law §310 that conflicts with a final determination in grievance arbitration, in violation of the principles articulated by the Court of Appeals in Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501.

THE APPEAL IS DISMISSED.

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