Decision No. 17,927
Appeal of DOUGLAS FRASER from action of the Board of Education of the Queensbury Union Free School District and Gregory Dixon regarding a personnel matter.
Decision No. 17,927
(October 7, 2020)
FitzGerald Morris Baker Firth, P.C., attorneys for petitioner, John D. Aspland, Jr., Esq., of counsel
Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondents, Karla Williams Buettner, Esq., of counsel
ROSA., Interim Commissioner.--Petitioner appeals a determination of the Board of Education of the Queensbury Union Free School District (“respondent board”) not to appoint him to a coaching position. Petitioner also joins respondent Gregory Dixon (“respondent Dixon”), the individual whom respondent board appointed to fill the position. The appeal must be dismissed.
Petitioner possesses permanent certification in the area of physical education and is a tenured physical education teacher. At all times relevant to this appeal, petitioner has been employed in respondent board’s district, where he served as coach of the boys’ varsity basketball team for 11 consecutive seasons prior to 2019.
In a counseling memorandum dated April 3, 2019, the district’s director of physical education, health, and athletics (“athletic director”) informed petitioner of numerous concerns with his performance as a coach. The athletic director cited, among other concerns, petitioner’s “poor coach-player relationships, poor coach-parent relationships and a lack of a supportive culture in varsity boys[’] basketball.” The athletic director further indicated that this was “not the first time the [d]istrict ha[d] received complaints of this nature,” making specific reference to a meeting on December 18, 2013 and a previous counseling memorandum issued on January 15, 2016. The athletic director identified a number of “standards” that petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.” Petitioner signed this memorandum on April 11, 2019, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.
In a letter dated April 30, 2019, respondent board’s superintendent informed petitioner of “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately.” This letter indicated that it was issued pursuant to the Queensbury Faculty Association’s collective bargaining agreement.
Thereafter, respondent board advertised for the position of boys’ varsity basketball coach. Four individuals applied to the position, including petitioner and respondent Dixon. Respondent board interviewed all four applicants and determined that respondent Dixon was the best candidate for the position.
On September 6, 2019, the president of the Queensbury Faculty Association requested that the superintendent provide the reasons for petitioner’s non-appointment. On September 9, 2019, respondent board appointed respondent Dixon as the boys’ varsity basketball coach. This appeal ensued. Petitioner’s request for interim relief was denied on September 20, 2019.
Petitioner argues that respondent board violated 8 NYCRR §135.4 in appointing respondent Dixon to the boys’ varsity basketball coach position. Petitioner requests an order annulling respondent Dixon’s appointment and ordering respondent board to appoint him as the boys’ varsity basketball coach for the 2019-2020 season.
Respondents argue that the appeal must be dismissed because petitioner has pursued a grievance under the Queensbury Faculty Association’s collective bargaining agreement. Respondent further contends that its determination to appoint respondent Dixon was neither arbitrary nor capricious.
First, I must address a procedural issue. Petitioner submitted affidavits that generally respond to allegations contained in respondents’ answer. Although not titled a “reply,” these affidavits are in the nature of a reply and were served within the time prescribed for service of a reply. The regulations of the Commissioner of Education allow a petitioner to submit a reply in response to new material and affirmative defenses contained in an answer (8 NYCRR §§275.3 and 275.14). Although a reply affidavit itself is not specifically contemplated as a reply under the Commissioner’s regulations, I have accepted the reply affidavits for consideration in the appeal to the extent they respond to new material raised in the answer (see Appeal of L.M., 58 Ed Dept Rep, Decision No. 17,561; Appeal of Patel, 57 id., Decision No. 17,259).
However, the reply affidavits contain new material that was not raised in the original petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply affidavits, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
The appeal must be dismissed for lack of jurisdiction. On September 16, 2019, the same day respondents were served with a copy of the instant petition, petitioner filed a grievance under the Queensbury Faculty Association’s collective bargaining agreement. In that grievance, petitioner requests that respondent board “rescind the appointment” of respondent Dixon and appoint petitioner as the boys’ varsity basketball coach for the 2019-2020 season.
It is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner 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 Kolessar, 56 Ed Dept Rep, Decision No. 17,035; Appeal of Nadolecki, 55 id., Decision No. 16,894; Appeal of Stephenson, 51 id., Decision No. 16,329). Here, petitioner raises the same claims as he raised in his grievance. Moreover, petitioner does allege in this appeal that the Queensbury Faculty Association breached its duty of fair representation with respect to his grievance. I find that, under the holding of Matter of Board of Education, Commack UFSD v. Ambach (70 NY2d 501), petitioner’s initiation of the grievance process has divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310 (Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,235). Accordingly, the appeal must be dismissed for lack of jurisdiction.
In any event, petitioner’s claims would be dismissed under the doctrine of election of remedies. 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).
Because petitioner sought the same relief in his grievance as he seeks in the instant appeal, petitioner has elected his remedies and cannot pursue the instant appeal pursuant to Education Law §310. Although petitioner filed his grievance on the same day as he commenced this appeal, the election of remedies doctrine applies and the appeal must be dismissed (see Appeal of Moriarty, 57 Ed Dept Rep, Decision No. 17,265 [dismissing appeal where the petitioner subsequently commenced a grievance proceeding seeking identical relief]; see also Appeal of Minaya, 60 id., Decision No. 17,879 [dismissing appeal where the petitioner subsequently commenced a civil action seeking identical relief]; Appeal of Phillips, 38 id. 165, Decision No. 14,008 [dismissing appeal where the petitioner subsequently commenced a civil proceeding, raising “essentially the same issues”]).
While the appeal must be dismissed on procedural grounds, I note for the benefit of the parties that the Commissioner, though recognizing that prior misconduct does not fit neatly within the “coaching qualifications” set forth in 8 NYCRR §135.4(c)(7)(i)(c), has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment (Appeal of Brown, 39 Ed Dept Rep 343, Decision No. 14,255).
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Where appropriate, respondent board and respondent Dixon will be referred to collectively as “respondents.”
 The superintendent responded to this request by letter dated September 10, 2019, indicating that petitioner was not appointed due to his “past performance concerns, as detailed in [the April 3, 2019] counseling memo.”
 Respondent Dixon obtained a temporary coaching license on or about September 27, 2019.
 The record reflects that respondent board denied petitioner’s grievance during the pendency of this appeal, on October 15, 2019, and that petition subsequently sought to bring respondent board’s determination to arbitration.