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Decision No. 17,235

Appeal of JON S. LEAKE, from action of the Board of Education of the Garden City Union Free School District, Eileen Vota as Principal, Dr. Robert Feirsen as Superintendent, and Kevin Pollitt as President of the Garden City Teachers’ Association, regarding a personnel action.

Decision No. 17,235

(October 27, 2017)

Guercio & Guercio LLP, attorneys for respondents, John P. Sheahan, Esq., of counsel

New York State United Teachers, attorneys for respondent Kevin Pollitt, Eric W. Chen, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from actions taken by Principal Eileen Vota, Superintendent Dr. Robert Feirsen and the Board of Education of the Garden City Union Free School District (collectively “respondents”), as well as the actions of Garden City Teachers’ Association President Kevin Pollitt (“respondent Pollitt”) which, he contends, are contrary to the terms of a collective bargaining agreement (“CBA”) between the Garden City Teachers’ Association (the “union”) and respondent board.  The appeal must be dismissed.

Petitioner is a tenured teacher of physical education.  On or about June 20, 2013, petitioner was interviewed regarding a sexual harassment claim filed by a district staff member.

On or about October 15, 2013, a district principal informed petitioner that he could not leave the building during his preparation time.[1]  Petitioner subsequently requested that his union represent him in filing a grievance against the district based upon this issue.  The union declined to do so.

On October 28, 2013, the union president sent an email to all members indicating that the union and district had discussed the issue of teacher preparation time and concluded that:

Under normal circumstances, all [district] employees should be in their assigned building during the workday with the exception of their lunchtime. 

The email further stated that while employees may “occasionally” need to leave during their “prep time”, such occurrences should be “rare” and employees must “explain the specific situation to one of [their] building administrators....”

After the union declined to file a grievance on his behalf, petitioner pursued a grievance on his own.  On November 6, 2013, petitioner met with the principal as the first step in the contractual grievance process.  On November 13, 2013, the principal denied petitioner’s grievance.  Petitioner appealed the principal’s determination to the superintendent.  Petitioner, accompanied by a union representative, met with the superintendent on December 13, 2013.  On January 6, 2014, the superintendent denied petitioner’s appeal of his grievance.  Petitioner alleges that he went back to the union’s Grievance Committee and demanded that it pursue his grievance.  On January 13, 2014, petitioner’s request for binding arbitration was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 19, 2014.

Petitioner argues that although the CBA is silent as to the issue of whether employees may leave school grounds during preparation time, the issue is a past practice which is binding upon the district.  Petitioner also argues that he should be permitted to bring this appeal as a class appeal because this issue affects over 300 district employees and that “[t]his makes all questions of fact and law common to all teachers covered in the CBA....”  Petitioner further argues that respondents’ actions in prohibiting him from leaving school grounds during preparation time were taken to retaliate against him for the testimony he provided in June 2013 concerning a sexual harassment investigation.  Petitioner seeks a determination that respondents’ interpretation of the CBA is arbitrary and capricious.

Respondents contend that the Commissioner is without jurisdiction to hear claims which petitioner elected to resolve through the CBA’s grievance process.  Respondents also argue that petitioner’s retaliation claim is barred by the election of remedies doctrine as it was the subject of a complaint filed with the Equal Employment Opportunity Commission (“EEOC”) on November 22, 2013.  Respondents further contend that petitioner seeks amendment of the CBA, which is outside the scope of relief which may be awarded in an appeal pursuant to Education Law §310.  Relatedly, respondents assert that to the extent petitioner claims that the district made a unilateral change to the terms of the CBA, such a claim would be within the exclusive jurisdiction of the Public Employment Relations Board (“PERB”).  Respondents further submit that petitioner’s appeal must be dismissed as untimely and that petitioner has failed to make a clear and concise statement of his claims.  Respondents additionally assert that petitioner has not demonstrated common questions of fact sufficient to represent a class in this appeal. 

Respondent Pollitt seeks dismissal of the claims against him on the ground that unions and their representatives are not subject to the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.

The appeal must be dismissed against respondent Pollitt for lack of jurisdiction.  Petitioner has named respondent Pollitt for alleged actions and omissions which he did or did not perform as president of the Garden City Teachers’ Association.  It is well-settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310 (Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054; Appeal of Hoefer, 41 id. 203, Decision No. 14,664; Appeal of Christe, 40 id. 412, Decision No. 14,514; Appeal of Goldin, 38 id. 317, Decision No. 14,043).  Therefore, petitioner’s claims against respondent Pollitt are dismissed.

With respect to the remaining respondents, the appeal must be dismissed for lack of jurisdiction and election of remedies.  It is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner pursuant to Education Law §310 for review of the same matter (Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Kolessar, 56 Ed Dept Rep, Decision No. 17,035; Appeal of Nadolecki, 55 id., Decision No. 16,894; Appeal of A.D., 46 id. 497, Decision No. 16,329).  In the petition, petitioner concedes that he elected to pursue a contractual grievance of the same issues he raises in this appeal, but argues that all of the individuals who ruled on his grievance, as well as respondent Pollitt, have retaliated against him.  However, petitioner has not explained how challenges to the integrity of the grievance process would confer jurisdiction upon the Commissioner in an appeal pursuant to Education Law §310 to review the merits of identical claims raised in a grievance.  I find that, under the holding of Matter of Board of Education, Commack UFSD v. Ambach (70 NY2d 501), petitioner’s initiation of the grievance process divested the Commissioner of jurisdiction over these claims for purposes of a subsequent appeal pursuant to Education Law §310.[2]

In any event, petitioner’s contract claims would be dismissed under the doctrine of election of remedies.  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 has pursued the past practice claim which he raises in this appeal through the internal grievance procedure outlined in the CBA.  As noted above, petitioner seeks the same relief in this proceeding which he sought during the grievance process: a determination that respondents’ interpretation of the language of the CBA, or lack thereof, is arbitrary and capricious.  Therefore, petitioner’s claims regarding the CBA or the existence of a past practice must also be dismissed based on an election of remedies.

Finally, although petitioner complains of illegal retaliation and asserts it as a jurisdictional basis for this appeal, he presents only conclusory allegations that he was retaliated against and has adduced no facts or proof in support of this claim.[3]  Moreover, petitioner seeks no relief based upon this claim.  Therefore, petitioner’s retaliation claim must be dismissed for failure to state a claim upon which relief may be granted.

In light of the fact that the appeal must be dismissed on jurisdictional grounds, I need not address petitioner’s request for class status.  I note that it is well-established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). 

I have considered petitioner’s remaining contentions and find them to be without merit.  Therefore, I need not address respondents’ remaining defenses and arguments.




[1] According to the CBA, preparation time is non-instructional time which is to “be provided between the start and end of the student day.”


[2] If, for example, petitioner believed that the union had breached its duty of fair representation during the grievance process, he could have filed an improper practice charge with PERB (see Civil Service Law §209-a[2][c]), but there is no evidence in the record that he did so.  As the Court of Appeals stated in Matter of Board of Education, Commack UFSD v. Ambach, “only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer [citations omitted]” (70 NY2d 501, 508).


[3] In this regard, I note that, according to a subsequent appeal filed by petitioner pursuant to Education Law §310 concerning an unrelated issue, the EEOC issued a Notice of Right to Sue to petitioner concerning his claim of retaliation (Appeal of Leake, Appeal No. 20,650).