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Decision No. 13,087

Appeal of ALBERT CERILLI from action of the Board of Education of the Wappingers Central School District relating to employment.

Decision No. 13,087

(December 31, 1993)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq. and Bob A. Kramer, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a teacher in the Wappingers Central School District, has filed three appeals regarding his employment by the district. These appeals are consolidated for decision because they involve the same parties and related issues. The appeals must be dismissed.

In the first appeal, petitioner contends that the principal of respondent's Sheafe Road Elementary School failed to follow class make-up procedures, refused to implement psychological services in a timely manner and mishandled IEP's, refused to implement the district's code of behavior, penalized petitioner in various ways, and, along with other school administrators, mistreated petitioner as a result of petitioner's involvement in the teachers' union. Petitioner also alleges that the district does not implement the grievance procedure in a fair, timely and impartial manner. In the second appeal, petitioner contends that he and his students were harassed by another teacher while the principal failed to intervene, and alleges that he was wrongly reprimanded by the principal for not calling the child abuse hotline. In the third and final appeal, petitioner complains that the principal failed to implement psychological services and an IEP for a particular student, and also alleges that the principal failed to comply with the district's code of behavior, thereby penalizing petitioner.

Respondent raises a number of affirmative defenses. First, it argues that the petitions fail to state a cause of action and violate its right of due process. Additionally, it claims that all of the issues raised in the petitions have been addressed pursuant to the grievance procedure set forth in the collective bargaining agreement. Respondent also maintains that petitioner has failed to exhaust the remedies provided by the grievance procedure. Respondent argues that the petitions are untimely and, in response to the petitioner's demands for relief, maintains that the Commissioner does not have investigatory rights through the appeal process. With respect to the claims raised in the third appeal, respondent also contends that they are moot. Finally, respondent maintains that all procedures and services referenced by petitioner, including respondent's code of behavior, have been properly and timely implemented.

As a threshold matter, I do not find that the petitions are insufficient to state a claim. Section 275.10 of the Commissioner's Regulations requires that a petition contain a clear and concise statement of the claim showing that petitioner is entitled to relief. I note that petitioner is not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519). I find that the petitions sufficiently frame petitioner's claims for relief and that respondent adequately addressed petitioner's allegations in its answer. Because respondent has failed to establish that it was prejudiced by petitioner's drafting, I will not dismiss the appeals on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

The appeals must be dismissed, however, on several other procedural grounds. First, the record indicates that petitioner initiated at least three grievances pursuant to the collective bargaining agreement between the Wappingers Congress of Teachers and the Wappingers Central School District, regarding all but three of the claims raised in these appeals. The first grievance was filed on or about June 15, 1992 regarding class make-up procedures and the district's code of behavior, issues raised in petitioner's first appeal. It appears that this grievance was denied at Stage III on December 29, 1992. The second grievance was filed on or about October 1, 1992, involving charges of harassment by another teacher and a reprimand by the principal, issues raised in petitioner's first and second appeals. According to petitioner, respondent failed to respond with a written decision in regard to a Stage III grievance hearing held on March 1, 1993. Lastly, the third grievance was filed on or about January 16, 1993 regarding the district's code of behavior and handling of a situation involving a particular student, issues raised in petitioner's third appeal. Evidently, this grievance was denied at Stage II on March 22, 1993 and petitioner has not elected to proceed to Stage III.

A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation (Matter of Board of Education, Commack UFSD v. Ambach, 7O NY2d 501). This principle has been consistently applied in numerous appeals to the Commissioner (Appeals of Gross and Forsyth, 33 Ed Dept Rep , #13031; Appeal of McCall, 32 id. 367, reopening denied, 32 id. 565; Appeal of Garod, 31 id. 526; Appeal of Kassenbrock, 31 id. 324; Appeal of Hilow, 31 id. 78). With the exception of the three claims noted herein, all of the other claims raised in these appeals were previously submitted for resolution through the grievance procedure. Petitioner has failed to show that the union breached its duty of fair representation. Accordingly, the claims previously raised in the grievance procedure must be dismissed for lack of jurisdiction.

All of petitioner's claims, including the three claims not previously raised, must also be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within thirty days from the making of the decision or the performance of the act complained of (8 NYCRR '275.16). The three claims not previously raised must be dismissed as untimely since petitioner did not commence these appeals within 30 days of the acts complained of. Specifically, petitioner commenced the first appeal more than six months after the last alleged derogatory evaluation; more than eight months after petitioner was not chosen for the teaching position; and more than six months after the classroom reassignment. The rest of petitioner's claims must likewise be dismissed as untimely since petitioner commenced these appeals more than 30 days after the alleged offensive acts occurred.

Even if these appeals were not dismissed on procedural grounds, they would still be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioner has made a number of wholly conclusory allegations and has not provided any evidence to establish the facts alleged in the petitions. Accordingly, petitioner has not met his burden of proof and the petitions must be dismissed.