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Decision No. 15,492

Appeal of A.D. from action of the New York City Department of Education regarding an employment grievance.

Decision No. 15,492

(December 8, 2006)

Karpf, Karpf & Virant, attorneys for petitioner, Adam C. Virant, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Camille D. Barnett, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals an investigation and medical examination by the New York City Department of Education (“respondent”).  The appeal must be dismissed.

Petitioner is a tenured math teacher assigned to teach at Midwood High School (“Midwood”) in Brooklyn.  In December 2003, the principal of Midwood learned that, while another teacher was covering petitioner’s class, a student reported that petitioner had told students, “that if she had a gun she would come get them.”  Upon questioning the students, the principal learned of other disturbing behavior attributed to petitioner. Respondent’s Office of Special Investigations (“OSI”) investigated and informed petitioner by letter dated December 19, 2003 that she was reassigned to the Region Six Learning Support Center pending the outcome of the investigation.

On April 23, 2004, the assigned OSI investigator hand-delivered to petitioner a written “48 hour Notice to Appear,” requesting that she ask her union representative to contact OSI to arrange a mutually convenient interview date.  Neither petitioner nor anyone on petitioner’s behalf contacted OSI in response.  On May 28, 2004, OSI substantiated the allegation of verbal abuse against petitioner, finding that she told students “that if she had a gun she would come and get them.”  On June 25, 2004, petitioner was referred to respondent’s Medical Bureau for a medical evaluation.  Petitioner was evaluated August 4, 2004 and found not fit to return to her regular teaching assignment.  Petitioner was also notified that a follow-up independent medical examination was scheduled for August 25, 2004.  Petitioner’s union representative requested that the appointment be rescheduled to September 8, 2004.  Petitioner did not appear for the appointment.  On September 14, 2004, respondent’s medical director notified petitioner that she would not be cleared to return to service until she agreed to reschedule the appointment and undergo the examination.

In the interim, in September 2004, petitioner requested and was granted a leave of absence without pay for personal business from September 22, 2004 through June 30, 2005 and from September 6, 2005 to June 30, 2006.

By letter dated September 9, 2004, petitioner filed a grievance in connection with the notice she received to report for a medical examination pursuant to Education Law §2568.  Petitioner asserted that she did not receive a copy of her supervisor’s report to respondent’s Medical Division prior to the medical examination stating the specific reason for the examination, as required by Articles 20 and 21I of the collective bargaining agreement.  Petitioner also alleged that OSI violated her due process rights by failing to question her as part of their investigation.

On December 8, 2005, pursuant to the grievance procedure set forth in the parties’ collective bargaining agreement, a Step III grievance conference was conducted. The grievance decision issued January 29, 2006 denied petitioner’s grievance upon a finding that petitioner received a copy of the principal’s request for medical examination and the collective bargaining agreement was not violated.  Petitioner commenced this appeal on March 28, 2006.  Petitioner’s request for interim relief was denied on April 18, 2006.

Petitioner contends that the OSI investigation violated her rights because she was not questioned and did not receive a copy of the determination placed in her file.  Petitioner contends that the decision and actions she is challenging were stated in the Step III Grievance decided January 29, 2006 and that she received the decision approximately three weeks later.  Petitioner seeks an order directing respondent to dismiss and remove from her records all references to the incident, as well as to issue her a contractual annual ratings sheet for 2003, the year of the investigation.

Respondent contends that petitioner fails to allege and prove facts supporting her claim and that her petition is untimely.  Respondent also contends that the Commissioner lacks jurisdiction to entertain this appeal because the identical issues were the subject of petitioner’s grievance.  Respondent further asserts that petitioner failed to exhaust her administrative remedies through of a grievance and arbitration proceeding.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949) Here, the record does not indicate when petitioner received the January 29, 2006 decision denying her grievance.  Affording the usual five days for mailing, excluding Sundays and holidays, petitioner’s appeal was not commenced within 30 days of the decision.  Petitioner explains that she received the decision approximately three weeks after it was issued. Allowing for three weeks following issuance of the decision, petitioner’s appeal still was not commenced within 30 days and must be dismissed as untimely.

The appeal must also be dismissed for lack of jurisdiction.  A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. Of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Klein, 43 Ed Dept Rep 305, Decision No. 15,003; Appeal of Chichester, 39 id. 470, Decision No. 14,286).  The record reflects that petitioner brought a grievance on the very same issues that are the subject of this appeal and the grievance resulted in a final determination reached on January 29, 2006.  That decision precludes the Commissioner’s review (Appeal of Coughlin, 41 Ed Dept Rep 484, Decision No. 14,751).