Appeal of DONALD CAMPBELL from action of the New York City Department of Education regarding a personnel action.

Decision No. 17,266

(November 29, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Bruce Rosenbaum and Benjamin J. Traverse, Esqs., of counsel

 ELIA, Commissioner.--Petitioner appeals from a determination of the New York City Department of Education (“respondent”) to retain a disciplinary letter in his personnel file.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner was a tenured teacher of mathematics at a high school within respondent’s district.  On June 22, 2007, petitioner was issued a disciplinary letter based upon a founded allegation of verbal abuse.  This letter was placed in petitioner’s personnel file.  Subsequently, petitioner was issued an unsatisfactory rating for the 2006-2007 school year in his 2006-2007 performance evaluation, which was received by petitioner on August 30, 2007.  Since that time, petitioner has challenged the disciplinary letter in a variety of fora.

Petitioner filed a step I grievance to the high school principal seeking removal of the disciplinary letter from his personnel file pursuant to Article 21(A)(5) of a collective bargaining agreement between the United Federation of Teachers (“UFT”) and respondent (the “CBA”).  On June 30, 2007, the principal dismissed petitioner’s grievance.

On August 30, 2007, petitioner appealed his unsatisfactory rating to respondent’s Office of Appeals and Reviews (“OAR”).  OAR scheduled such a hearing for October 9, 2007 but, as further addressed below, petitioner repeatedly waived his right to a hearing within one year of the imposition of the unsatisfactory rating, and there is no indication that such a hearing has been held.

In September 2007, petitioner appealed the denial of his step I grievance, seeking to proceed with a step II grievance.  Petitioner was represented in this grievance by the UFT.

On November 29, 2007, the Chancellor of the City School District of the City of New York (“Chancellor”) denied petitioner’s step II grievance on the ground that the CBA between respondent and the UFT did not permit teachers to grieve material placed in their personnel file.  In a written decision, the Chancellor indicated that, instead of filing a grievance, teachers may “submit a response which will become part of the letter.”  There is no evidence in the record that petitioner has submitted such a response regarding the disciplinary letter.

On March 5, 2008, petitioner filed a civil action pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court, New York County claiming that he was denied due process by the placement of the disciplinary letter in his personnel file.  On March 30, 2008, the court dismissed petitioner’s lawsuit as barred by the applicable four-month statute of limitations.

On March 22, 2010, petitioner requested that the UFT arbitrate his claim regarding the disciplinary letter.  In a letter dated February 28, 2011, the UFT declined to arbitrate petitioner’s claim, referring to the provision of the CBA which precluded the grieving of material placed in UFT members’ personnel files.

On May 19, 2011, petitioner filed an improper practice charge with the Public Employment Relations Board (“PERB”) challenging the UFT’s decision not to proceed to arbitration on his claim and alleging that the UFT breached its duty of fair representation.

On October 7, 2011, petitioner, through the UFT, filed a second grievance against respondent arguing that the disciplinary letter was not automatically expunged from his personnel file after three years in violation of the CBA.  After respondent denied the grievance, petitioner requested that the UFT pursue a step II grievance of the matter.

In a letter dated October 17, 2011, a UFT representative informed petitioner that the UFT had decided not to pursue a step II grievance of petitioner’s claim.  The letter indicated that petitioner could appeal this determination within ten days.  Petitioner did not appeal this determination.  This appeal ensued.

Petitioner contends that respondent erred by failing to remove the disciplinary letter from his personnel file after three years as mandated by the CBA. Petitioner further argues that respondent and the UFT have taken inconsistent positions as to whether the disciplinary letter was a “disciplinary charge.”  Specifically, petitioner contends that if the disciplinary letter was a disciplinary charge, he had the right to grieve it, and if it was not, then it should have been removed from his personnel file.  Petitioner seeks expungement of the disciplinary letter from his personnel record and an “order” to “properly protect the rights of teachers receiving unsatisfactory ratings based on letters of reprimand....”

Respondent contends that the appeal is without merit and that it must be dismissed: (1) because petitioner lacks standing; (2) for lack of subject matter jurisdiction; (3) as untimely; (4) for failure to exhaust administrative remedies; (5) for failure to join a necessary party, the UFT; and (6) for failure to state a cause of action upon which relief may be granted.

Petitioner’s claim that respondent has wrongfully maintained the disciplinary letter in his personnel file 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).  Here, petitioner grieved respondent’s failure to remove the disciplinary letter from his personnel file on October 7, 2011, prior to commencement of this appeal.  Indeed, in his reply, petitioner admits that he “elected to follow the contract grievance procedure and cannot elect to bring an appeal” pursuant to Education Law §310.  Therefore, 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.

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’s prior filing of a grievance concerning the same issues raised in this proceeding and seeking identical relief (namely, removal of the disciplinary letter) would also be dismissed based on an election of remedies.[1]

Petitioner contends that he may nevertheless pursue his claim in this forum because the UFT breached its duty of fair representation (Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Cerilli, 33 Ed Dept Rep 385, Decision No. 13,087; Appeals of Gross and Forsyth, 33 id. 222, Decision No. 13,031).  However, this claim must be dismissed as the record reflects that, prior to the commencement of this appeal, petitioner filed an improper practice charge with PERB which resulted in a finding that the UFT did not breach its duty of fair representation.  While this charge originally alleged unfair representation regarding petitioner’s first grievance (i.e., the challenge to the placement of the disciplinary letter in his personnel file), petitioner subsequently amended the charge on December 29, 2011 to assert unfair representation regarding his second grievance (i.e., that pursuant to the CBA, the disciplinary letter should have been expunged from his personnel file after three years).  I take judicial notice that, on April 12, 2013, a PERB administrative law judge dismissed petitioner’s claims as without merit (Matter of Donald Campbell, 46 PERB 4537, 2013 WL 1934142).  Given this resolution, there is no basis for jurisdiction over petitioner’s appeal pursuant to Education Law §310 and it must be dismissed.

Contrary to petitioner’s argument, he is not without a remedy under the circumstances as respondent permits appeals of unsatisfactory ratings.  Indeed, petitioner filed such an appeal on August 30, 2007.  However, no determination has been reached in this appeal because, according to the record, petitioner has submitted numerous waivers of his right to have an appeal hearing conducted within one year of the disciplinary incident.  The practical effect of these waivers has been to indefinitely prolong petitioner’s appeal of his unsatisfactory rating.  Therefore, petitioner cannot complain on appeal that respondent has failed to issue a decision which he tacitly agreed to postpone.[2]

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

THE APPEAL IS DISMISSED.

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