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Decision No. 15,144

Appeal of ANTHONY STIFFLER from action of the New York City Department of Education regarding teacher excessing.


Decision No. 15,144


(November 24, 2004)


Michael A. Cardozo, Corporation Counsel, attorney for respondent, Shivani Soni, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals a determination of the New York City Department of Education (�respondent�) excessing him from a teaching position.  The appeal must be dismissed.

Effective September 5, 2000, respondent appointed petitioner as a probationary teacher in physical education at P.S. 198.  Because of declining enrollment, the principal of P.S. 198 decided to excess ten teachers in June 2003.  By letter dated June 13, 2003, the principal informed petitioner that he was being excessed, effective June 26, 2003.  (Petitioner also received a letter dated June 24, 2003 stating that he was being excessed as of June 27.)  Petitioner grieved his excessing to the principal.  The principal denied his grievance, stating that his excessing was conducted pursuant to the contract between respondent and United Federation of Teachers (�UFT�).  This appeal ensued.  Petitioner�s request for interim relief was denied on August 12, 2003.

Petitioner contends that he was excessed in violation of his seniority rights, that respondent violated �135.4 of the Commissioner�s regulations because P.S. 198 no longer has a licensed physical education teacher, and that P.S. 198 teachers no longer have union representation because he was the sole union chapter leader at that school.  Petitioner seeks a determination that the excessing violated his seniority rights and demands reinstatement to his former position at P.S. 198.

Respondent argues that the Commissioner lacks subject matter jurisdiction over this appeal, that the appeal is moot, that petitioner lacks standing to assert the rights of other teachers in regard to union representation, and that P.S. 198 will not be without union representation.  Respondent contends that petitioner was lawfully and properly excessed pursuant to the collective bargaining agreement and that petitioner has not exhausted his administrative remedies.  Respondent contends that any alleged violation of the excessing rules should be grieved pursuant to the collective bargaining agreement, after which the proper forum for petitioner is an Article 78 proceeding in State Supreme Court, not an appeal to the Commissioner.

Petitioner�s claim that he was excessed in violation of his seniority rights must be dismissed.  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 (Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Kassenbrock, 31 Ed Dept. Rep 324, Decision No. 12,654; Appeal of Almeter, 30 id. 439, Decision No. 12,526; Appeal of Perri, 30 id. 277, Decision No. 12,464).  Petitioner brought a Step 1 Grievance which was denied by the principal because teachers were �being excessed in accordance with UFT contractual rules of excessing.�  Evidently, petitioner did not complete Step 2 (District Level) or Step 3 (Chancellor) of the grievance process and, under the terms of the contract, he was deemed to have accepted the decision rendered at Step 1 (Article 22 B8).  P etitioner thus elected to pursue his claim through the contractual grievance process and cannot appeal to the Commissioner for relief on the same issue.

Petitioner also claims that his excessing violates �135.4 of the Commissioner�s regulations because P.S. 198 will not have a licensed physical education teacher.  Respondent contends that it is in compliance with the regulations because a common branch teacher may teach physical education at the elementary level.  Section 135.4(c)(4) of the Commissioner�s regulations (addressing Physical Education) states that �[e]lementary classroom teachers may provide instruction under the direction and supervision of a certified physical education teacher.�  In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Brown, et al., 43 Ed Dept Rep ___, Decision No. 14,980) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Goldin, 43 Ed Dept Rep ___, Decision No. 15,048).  Here petitioner has failed to meet his burden of establishing that respondent�s actions resulted in a violation of the Commissioner�s regulations.

Finally, petitioner asserts that his excessing would leave P.S. 198 without union representation.  Again, petitioner has failed to meet his burden of establishing that respondent�s actions resulted in a lack of union representation at P.S. 198, or that such alleged lack of representation would entitle him to the relief requested.