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Decision No. 13,420

Appeal of ESTHER G. WALKER from action of Edith Bly Jenkins as principal for Community School Board No. 5 regarding termination of services.

Decision No. 13,420

(June 6, 1995)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, R. Townsend Davis, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the termination of her services as a temporary substitute teacher. The appeal must be dismissed.

On February 17, 1994, while employed at P.S. 123, petitioner was involved in an incident with several members of the school's staff and administration. As a result of that incident, petitioner's employment was terminated. Petitioner then filed a grievance pursuant to the collective bargaining agreement between the Board of Education of the City School District of the City of New York and the United Federation of Teachers. By decision dated April 8, 1994, the grievance was denied at Step II. The grievance was further denied at Step III on June 3, 1994. The union subsequently filed a demand for arbitration on petitioner's behalf. There is no indication in the record whether the arbitration hearing has been held.

Petitioner commenced this appeal at about the same time she filed her grievance. However, she did not file her petition with my Office of Counsel until May 16, 1994. In this appeal, petitioner seeks a determination that her employment was improperly terminated and that she should be reinstated with back pay.

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 Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501). This principle has been consistently applied in numerous appeals to the Commissioner (Appeal of Gross and Forsyth, 33 Ed Dept Rep 222; Appeal of McCall, 32 id. 367, reopening denied, 32 id. 565; Appeal of Garod, 31 id. 526; Appeal of Hilow, 31 id. 78). The record indicates that petititioner's claim in this appeal was previously submitted for resolution through the grievance procedure. Moreover, there is no evidence that the union breached its duty of fair representation. Accordingly, petitioner's appeal must be dismissed for lack of jurisdiction.