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Decision No. 17,062

Appeal of SUSAN FORD-GAMBEE WILHELM from action of the Board of Education of the Eden Central School District regarding compensation following a reduction of her position.

Decision No. 17,062

(March 13, 2017)

Ferrara Fiorenza, P.C., attorneys for respondent, Michael J. Looby, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the action of the Board of Education of the Eden Central School District (“respondent”) in assigning her to teach five classes following a reduction in her position from a full-time position to a .83 full time equivalent (“FTE”).  The appeal must be dismissed.

Petitioner has been employed as a Social Studies teacher and an English teacher in respondent’s district since the 2002-2003 school year.  At a board meeting held on August 10, 2016, respondent voted to reduce several positions due to declining enrollment.  As a result, petitioner’s position was reduced by .17 FTE, to .83 FTE, effective August 10, 2016.  Petitioner alleges that on September 6, 2016, she received her teaching schedule for the 2016-2017 school year, under which she is assigned to teach five classes, and asserts that this is a full-time appointment and she should be compensated as a 1.0 FTE employee.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 13, 2016.

Petitioner claims that she is a full-time teacher under §100.2(i) of the Commissioner’s regulations because she continues to teach five classes each day, which she contends is a 1.0 FTE.  She claims that respondent has improperly treated her position as a .83 FTE and compensated her on that basis, even though she allegedly is a full-time teacher.

Respondent contends that the appeal is untimely and that petitioner’s claims are barred by election of remedies because petitioner has sought, and continues to seek, relief concerning respondent’s August 10, 2016 action through the grievance procedure specified in the collective bargaining agreement (“CBA”) between the district and the Eden Teachers’ Association (“Association”).  Respondent further contends that the petition should be dismissed for failure to state a claim upon which relief may be granted because petitioner fails to allege that she teaches in excess of 150 students per day or that she teaches more than six classes per day, in violation of §100.2(i) of the Commissioner’s regulations.

Initially, I must address several procedural issues.  First, petitioner attempts to make several additional submissions in this matter by letters dated December 14, 2016, January 22, 2017, and an undated submission received by my Office of Counsel on January 17, 2017.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Petitioner’s first submission is a letter dated December 14, 2016 from the Association to petitioner advising that the grievance committee had reviewed petitioner’s claim and the Association would not be advancing petitioner’s grievance to arbitration as the information provided did not constitute a violation of any specific provision of the CBA.[1]  By letter dated December 20, 2016, respondent stated that it did not object to the submission.  As this submission contains information that was not available to petitioner at the time the petition was filed, and respondent does not object, I have considered petitioner’s December 14, 2016 submission.

Petitioner submitted an undated “Application to Submit other Supporting Papers,” received by my Office of Counsel on January 17, 2017, in which petitioner attempts to respond to statements in respondent’s December 20, 2016 letter.  By letters dated January 16, 2017 and January 17, 2017, respondents object to this submission for various reasons.  In response to respondent’s letters objecting to the submission, by letter dated January 22, 2017, petitioner argues that the CBA should be accepted as part of the record in this appeal.  As stated above, I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  Petitioner’s additional submissions add new exhibits, such as the CBA, which could have been included in her petition, and emails between petitioner and a representative of the Association which are not relevant to the claims originally raised in the instant appeal.  Accordingly, I have not considered petitioner’s January 2017 submissions.

Next, respondent asserts that the appeal is untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  At the August 10, 2016 board meeting, respondent voted to reduce petitioner’s position, effective immediately.  Petitioner argues that the appeal is not untimely because she was not aggrieved until the first day of school when she alleges she was assigned to a full-time teaching assignment yet was still considered to be a .83 FTE position.  Petitioner asserts the appeal was timely filed within 30 days of the first day of school, September 6, 2016, the date on which she first became aggrieved.  In response, respondent contends that the petitioner became aggrieved on August 10, 2016, the effective date of the board action.

To the extent petitioner seeks to challenge the determination of respondent to reduce her position to a .83 FTE position, which in effect constitutes a partial abolition of her position, she became aggrieved on the date of the abolition and the appeal would be timely if commenced within 30 days of respondent’s determination (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582; Appeal of Stowell, 53 id., Decision No. 16,555).  The appeal was not commenced until September 30, 2016, more than 30 days after the August 10, 2016 decision and petitioner offers no excuse for the delay.  To that extent, therefore, the appeal must be dismissed as untimely.

However, the gravamen of petitioner’s complaint is that the district considers her position .83 FTE but that her assignment actually is a 1.0 FTE.  With respect to that claim, petitioner did not become aggrieved until she received her teaching assignment on September 1, 2016 (see e.g. Appeal of Romano, 54 Ed Dept Rep, Decision No. 16,679).  The appeal was commenced within 30 days after that date, so I find that the appeal is timely with respect to her challenge to her assignment.

Next, respondent contends that petitioner has elected to seek redress through the grievance procedure specified in the CBA, and that this precludes her from pursuing the instant appeal.  The record shows that, prior to commencement of this appeal, petitioner filed a grievance challenging respondent board’s August 10, 2016 action pursuant to the terms of the CBA.  At the time this appeal was filed, petitioner’s Level I and Level II grievances had been denied and petitioner had continued to a Level III grievance with the superintendent pursuant to the terms of the CBA.[2]  Respondent contends that petitioner’s grievance seeks the same relief requested in this appeal; namely, a declaration that her position is 1.0 FTE, as well as back pay and benefits in accordance with that designation.  Petitioner contends that, although she seeks the same relief in both the grievance and the instant appeal, her “justification” is different in that her grievance was based on the district’s “past practice” of compensating teachers who taught five classes at a 1.0 FTE salary level.

It is well settled that the prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).  Here, petitioner admits that the relief sought in both the grievance and this appeal is the same.  Further, based on the record before me, the majority of petitioner’s arguments in the instant appeal were asserted by petitioner in the grievance proceedings.  Although the record shows that petitioner alleged that the district was obligated under the CBA to compensate her at a salary commensurate with 1.0 FTE status in her Level I grievance, a theory not preserved in this appeal, the grievance and this appeal nevertheless arise out of the same set of facts and seek the same relief (see Appeal of R.A., 50 Ed Dept Rep, Decision No. 16,206).  Therefore, to the extent that petitioner elected to pursue her claims through the grievance process, such claims must be dismissed.  However, I note that, in her grievance, petitioner included a claim that the district’s actions are in violation of §100.2(i) of the Commissioner’s regulations.  In its letter to petitioner declining to advance her grievance to arbitration, the Association stated that a claimed violation of statute is not a grievable matter under the CBA as such a claim does not allege a violation of a specific provision of the CBA.  Therefore, I decline to dismiss petitioner’s claim that respondent acted in violation of §100.2(i) of the Commissioner’s regulations.

Turning now to the merits of petitioner’s remaining claim, Commissioner’s regulation §100.2(i), relating to teaching assignments, provides:

Teaching staff in public schools.  The number of daily periods of classroom instruction for a teacher should not exceed five.  A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner does not argue that her number of daily periods of classroom instruction exceeds five; in fact, she admits in her petition that she only teaches five classes for the 2016-2017 school year.  Nor does petitioner argue that she is assigned a daily teaching load in excess of 150 students.  The essence of her argument appears to be that §100.2(i) defines a full-time teaching load as five classes so that she is entitled to compensation as a full-time teacher.  However, §100.2(i) merely establishes a policy that teachers should not be assigned more than five classes or a teaching load of 150 pupils and requires that a board of education be able to justify any such assignment, for the purpose of maintaining quality instruction for students (see Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).  The regulation does not define full-time status for purposes of compensation, which as in this case, is a matter governed by the applicable CBA.[3]  Therefore, on this record, petitioner has not established that respondent’s actions are in violation of §100.2(i) of the Commissioner’s regulations.

I have considered petitioner’s remaining contentions and find them to be without merit.




[1] In response to a request from my Office of Counsel to resubmit her December 14, 2016 letter, petitioner sent an “Application to Submit other Supporting Papers” which included additional materials beyond those sent in the original December 14th submission.  Petitioner was advised by my Office of Counsel that all additional submissions must be made in accordance with §276.5 of Commissioner’s regulations.  Petitioner’s third submission, undated but received by my Office of Counsel on January 17, 2017, ensued.


[2] Following service of the petition, the superintendent rendered a decision on petitioner’s Level III grievance.  Under the terms of the CBA, a further appeal may be taken to respondent.


[3] I note that the Association’s December 14, 2016 letter states that the grievance committee reviewed the facts in the grievance and determined that petitioner’s appointment to .83 FTE was correct because a calculation of her assignment revealed that it was, in fact, .83 FTE.