Decision No. 17,781
Appeal of NUBIA MARTINEZ from action of the New York City Department of Education regarding a personnel matter.
Decision No. 17,781
(October 30, 2019)
Georgia M. Pestana, Esq., Acting Corporation Counsel of the City of New York, attorney for respondent, Donald C. Sullivan, Esq., of counsel
BERLIN., Interim Commissioner.--Petitioner challenges a determination of the New York City Department of Education (“respondent”) to discontinue her probationary service. The appeal must be dismissed.
According to the record, petitioner was hired by respondent in 2010 for a probationary teaching position at a school within respondent’s District 79. In September 2013, petitioner executed an agreement with the superintendent of District 79 (“superintendent”) to extend her probationary term for an additional year. At the end of the 2013-2014 school year, petitioner was rated as “developing,” the second lowest rating in a four-tiered scale employed by respondent.
In September 2014, petitioner executed another agreement with the superintendent to extend her probationary term by one year. Petitioner again received an overall rating of “developing” at the conclusion of the 2014-2015 school year.
During the 2014-2015 school year, petitioner filed the following administrative and judicial proceedings:
- On November 28, 2014, petitioner filed a complaint with the New York State Division of Human Rights (“DHR”), charging respondent with discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”). This complaint was dismissed for lack of probable cause on May 29, 2015.
- On February 8, 2015, petitioner filed a charge of unlawful discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging discrimination, retaliation, and a hostile work environment. This charge was dismissed on February 12, 2015 for lack of evidence.
- On April 28, 2015, petitioner filed a civil action against respondent in the U.S. District Court for the Southern District of New York, alleging racial discrimination and retaliation in violation of Title VII and the New York City Human Rights Law. On May 10, 2017, respondent’s motion to dismiss was granted and petitioner’s second amended complaint was dismissed with prejudice, based upon election of remedies and failure to state a claim upon which relief may be granted.
- On June 22, 2015, petitioner filed a second complaint with DHR, charging respondent with discrimination and retaliation in violation of Title VII and the NYSHRL, including retaliation for filing her first complaint. This second complaint was dismissed for lack of probable cause on November 24, 2015.
On December 17, 2015, respondent’s superintendent denied petitioner’s certification of completion of probation and informed her that, effective January 19, 2016, her probationary appointment with respondent would be terminated.
On January 4, 2016, petitioner requested a hearing challenging the denial of her certification of completion of probation. On January 22, 2016, during the pendency of petitioner’s hearing before the Chancellor’s committee, petitioner commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”) against respondent and DHR. In this civil proceeding, petitioner challenged respondent’s denial of her certification of completion of probation and DHR’s dismissal of her two prior complaints. The court dismissed the proceeding on July 6, 2016.
The hearing concerning the denial of petitioner’s certification of completion of probation was held before the Chancellor’s committee on April 13, 2016. In a decision dated that same day, the Chancellor’s committee recommended denial of petitioner’s appeal. On April 25, 2016, the committee’s recommendation was referred to the superintendent for final decision.
Thereafter, in a letter dated July 11, 2016, the superintendent affirmed the Chancellor’s committee’s January 19, 2016 recommendation.
On or about February 6, 2017, petitioner filed an improper practice charge with the New York State Public Employment Relations Board (“PERB”), alleging that her union breached its duty of fair representation in connection with her appeal of the denial of her certification of completion of probation. On April 16, 2018, a regional director for PERB dismissed petitioner’s charge as untimely. Petitioner then filed exceptions to the regional director’s determination. In a decision dated September 5, 2018, PERB denied petitioner’s exceptions as untimely and affirmed the regional director’s dismissal of her charge. This appeal ensued.
Petitioner challenges the denial of her certification of completion of probation. Among other things, petitioner contends that respondent acted in bad faith and lacks authority to deny her certification of completion of probation. She further asserts that she has yet to receive a final decision on her appeal of such denial. For relief, petitioner seeks reinstatement to her former position as a Spanish teacher with respondent. Petitioner further requests that I “[r]eview” PERB’s September 2, 2018 determination dismissing her charge that her union breached its duty of fair representation.
Respondent contends that the appeal must be dismissed as untimely, as barred by res judicata, for lack of jurisdiction, and as without merit.
The majority of petitioner’s claims must be dismissed as 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, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Petitioner challenges respondent’s denial of her certification of completion of probation. According to the record, petitioner’s certification was first denied on December 17, 2015; the Chancellor’s committee rendered its recommendation concurring with the denial on April 13, 2016; and the committee’s recommendation was affirmed by the superintendent on July 11, 2016. Petitioner commenced the instant appeal on October 2, 2018, more than two years after the superintendent’s determination. Petitioner does not, as required, set forth good cause, or any cause, for the delay in her petition (8 NYCRR §275.16). Accordingly, petitioner’s challenge to respondent’s denial of her certification of completion of probation must be dismissed as untimely.
Although petitioner commenced this appeal within 30 days of PERB’s September 5, 2018 determination, that claim must be dismissed for lack of jurisdiction. I have no jurisdiction to review determinations made by PERB, including an alleged breach of a union’s duty of fair representation (see Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266). Indeed, the Commissioner has long held that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310 (Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054; Appeal of Hoefer, 41 id. 203, Decision No. 14,664; Appeal of Christe, 40 id. 412, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043).
Even assuming, arguendo, that I had jurisdiction over the underlying claims in petitioner’s PERB charge, petitioner’s decision to file a complaint with PERB constituted an election of remedies that bars her presentation of such claims in a subsequent appeal pursuant to Education Law §310. 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 Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492). 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 Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451). Therefore, I lack jurisdiction to review any determination by PERB as well as the underlying subject matter of petitioner’s improper practice charge.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The regional director additionally noted that, even if timely, petitioner’s charge lacked merit.
 Petitioner states that she “has not received any resolution from NYCDOE’s hearing on April 13, 2016.” However, it appears from the record that the superintendent’s July 11, 2016 determination represented respondent’s final determination and there is no evidence in the record suggesting that respondent did, or was required to, take further action.
 For the benefit of the parties, I note that petitioner suggests that respondent took action against her teaching certificate granted by the State Education Department (“SED”). This is incorrect; respondent’s discontinuance of petitioner’s probationary employment status is unrelated to her public school teacher certificate issued by SED, and respondent lacks authority to revoke such certificate (see generally Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688).