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Decision No. 12,574

Appeal of MARY LOU HILOW, from action of the Board of Education of the City School District of the City Rome, relating to employment.

Decision No. 12,574

(August 29, 1991)

Harter, Secrest & Emery, Esqs., attorneys for respondent, Sarah Lewis Belcher, Esq., of counsel

SOBOL, Commissioner.--Petitioner, Mary Lou Hilow, has served as a teacher in business education in the Rome City School District. Petitioner requests various forms of relief including reinstatement, recalculation of seniority and retirement benefits and payment of certain legal fees. The appeal must be dismissed.

Petitioner was first employed by respondent district in 1964, and continued in that employment until 1969 when she went on a leave of absence. By letter of March 8, 1970, petitioner resigned her position, and that resignation was accepted by respondent on March 18, 1970. Petitioner subsequently reentered employment in 1978 as a business teacher in the Rome Free Academy, and continued in that employ until June 30, 1983, at which point her position was terminated for budgetary reasons. Petitioner was rehired for brief periods in 1984-85 and 1985-86 and recommenced full time employment in the 1986-87 school year. Petitioner's position was again terminated for budgetary reasons effective June 30, 1989. Following that termination, petitioner initiated a contractual grievance proceeding which was concluded by the issuance of a determination on March 16, 1991, denying the grievance on the grounds that in the arbitrator's judgment, respondent did not violate the provisions of the Education Law relating to seniority and tenure as incorporated into the collective bargaining agreement. This appeal was commenced in October, 1990 to challenge the June 30, 1989 termination as well as several prior determinations made by respondent.

Petitioner alleges that respondent has wrongfully calculated her seniority, and has acted arbitrarily and with discriminatory intent in terminating her on the several occasions referred to, including June 30, 1989. In the petition, petitioner alleges that the most recent violation of her rights occurred in October, 1990 when she was denied the

opportunity to fill a home economics position. Petitioner alleges that respondent's actions violated her tenure and seniority rights.

Respondent contends that with one exception, all of the actions complained of by petitioner are time barred by the provisions of 8 NYCRR '275.16. Respondent further alleges that petitioner's complaints of violation of tenure and seniority rights, as well as her complaint about alleged discriminatory practices, have been the subject of prior proceedings, and therefore petitioner is barred from relitigating those issues in this forum. With respect to the merits, respondent contends that each of the termination decisions have been arrived at through proper calculation of petitioner's tenure and seniority rights. In particular, respondent contends that petitioner's resignation from her position in March, 1970 constituted a termination of the tenure and seniority rights she had accumulated prior to that date. Therefore, respondent contends that petitioner's estimate of her seniority wrongfully includes the five years of service preceding her resignation in 1970, and that therefore, under a proper calculation, she currently only has 8.275 years rather than the number years of seniority alleged in the petition. With respect to the October, 1990 determination concerning her application for the home economics position, respondent alleges that petitioner is neither certified in home economics nor has she previously taught in this area. Respondent contends that the home economics position is not "similar" to that occupied prior to her layoff in 1989, and that therefore under the provisions of subdivision 3 of '2510 of the Education Law, she is not entitled to appointment to that position.

With the exception of petitioner's application for the home economics position, this appeal is untimely to review any of the actions complained of and must be dismissed on that basis. An appeal to the Commissioner must be commenced within 30 days of the action complained of unless good cause for the delay, acceptable to the Commissioner, is set forth in the petition (Appeal of Rizzuto, 25 Ed Dept Rep 499). In this case, and with the one noted exception, all of the actions complained of occurred on or before June 30, 1989, well over a year before the appeal was commenced.

Moreover, petitioner has already chosen to litigate her complaints about respondent's alleged violation of her tenure and seniority rights through the grievance process, but was not successful. Petitioner has similarly pursued her complaint regarding alleged discriminatory actions by filing a complaint with the Equal Employment Opportunity Commission. Having chosen these forums in which to litigate her claims, petitioner has made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to '310 of the Education Law (Matter of McFerran, 16 Ed Dept Rep 133; Matter of Wolfson, 14 id. 84; Matter of Rathbone, 14 id. 178).

For petitioner's benefit, I offer the following observations concerning her seniority rights. A resignation tendered by a teacher which is accepted by the employing board of education terminates the employment relationship, and also terminates any tenure and seniority rights that may have existed pursuant to the employment relationship (Matter of Middleton, 16 Ed Dept Rep 50, 52). Therefore, petitioner's inclusion in her seniority of the five years of service when she was employed by respondent for the 1964-1969 school years is in error. She is not entitled to any seniority rights for that period of service.

Petitioner's remaining claim that she was entitled to be appointed to the home economics position is also without merit. Nothing in the record before me demonstrates that the home economics position sought by petitioner in the Fall, 1990, was in any manner similar to that in which she served prior to her termination. Therefore, the provisions of '2510(3) of the Education Law do not require that petitioner be offered the opportunity to serve in the home economics position (Matter of Chauvel v. Nyquist, 43 N.Y.2d 753).