Appeal of KIM FITZSIMMONS, from action of the Board of Education of the Baldwin Union Free School District, Superintendent Dr. James T. Scannell, and Catherine Parmiter regarding an appointment and preferred eligibility rights.

Decision No. 16,686

(November 17, 2014)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Oriana Vigliotti, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent Baldwin Union Free School District, Christopher Venator, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the actions of the Board of Education of the Balwdin Union Free School District (“respondent board” or “respondent”) in calculating seniority for preferred eligibility purposes.  Petitioner claims that such actions resulted in a lost opportunity to be recalled to a full-time leave replacement substitute teaching position.  Petitioner seeks an order declaring her more senior to respondent Parmiter, and that I direct respondents to immediately transfer petitioner to the full-time leave replacement position and correct her place on the seniority list.  Petitioner also seeks a declaration that respondent’s actions were arbitrary, capricious, and in violation of the law and regulations.  The appeal must be dismissed.

Petitioner was employed by the Baldwin Union Free School District in the elementary tenure area as a probationary teacher beginning on September 1, 2005.  Petitioner received tenure in the elementary tenure area on September 1, 2008.  Due to budgetary constraints, respondent abolished both petitioner and respondent Parmiter’s positions in the elementary tenure area effective June 30, 2013.

Prior to petitioner’s employment as a probationary teacher, effective September 1, 2005, petitioner served in various capacities as a per diem substitute teacher in the district.  While the parties dispute the exact dates and nature of the assignments, respondent asserts that they properly credited petitioner with seniority credit for the period in which she served as full time leave replacement substitute from February 3, 2004 through June 11, 2004.  Petitioner claims that other per diem substitute service provided in 2003, 2004, and 2005 also should have been credited to petitioner for purposes of her seniority calculation.

At the time the positions were abolished, both petitioner and respondent Parmiter were placed on a preferred eligibility list.  Respondent Parmiter was credited with 8.97794 years of seniority, and petitioner was credited with 8.44 years of seniority.  Petitioner alleges that respondent incorrectly calculated her seniority by failing to include time served as a regular and consistent substitute.

In the fall of 2013, based on the preferred eligibility list, respondent board offered and respondent Parmiter accepted a salaried full-time leave replacement position to continue through the end of the school year.  Beginning on October 18, 2013 petitioner was offered a sixth grade per diem substitute position, paid at a daily rate of $145/day scheduled to continue through the end of the school year.  Petitioner disputes respondent’s calculation of seniority for purposes of the preferred eligibility list, and claims that she in fact had 9.2 years of seniority and should have been offered the full-time leave replacement position prior to respondent Parmiter.  Specifically, petitioner alleges that if her previous per diem substitute service was included, she would be more senior to respondent Parmiter.  Therefore, as more senior to Parmiter, petitioner claims she was entitled to the leave replacement substitute petition offered to Parmiter, effective October 28, 2013.

Petitioner maintains that based on the actual duties performed while a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute.  Respondents assert that they accurately calculated petitioner’s seniority which should not include periods of time during which petitioner served as a temporary per diem substitute.

I must first address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The position to which petitioner seeks to be transferred, as a full-time leave replacement substitute teacher, concluded at the end of the 2013-2014 school year.  Therefore, because that position no longer exists, to the extent that petitioner seeks transfer to such position, such claim is moot.

Further, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

If petitioner’s request for an order directing that she be transferred to the full-time leave replacement position had been granted, respondent Parmiter would have been displaced from that position.  Therefore, because respondent Parmiter’s rights would be affected by the outcome of this appeal, she is a necessary party.  While petitioner named Parmiter in the petition, there is no evidence in the record that she was personally served.  Therefore, even if not dismissed as moot, petitioner’s claims that she has greater relative seniority than respondent Parmiter and that she therefore has a right to be transferred to the full-time leave replacement position held by respondent Parmiter must be dismissed for failure to properly join a necessary party.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment (Matter of Ducey, et al., 65 St Dept Rep 65; Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678).  However, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority” (Matter of Alessi v. Board of Education of the Wilson Central School District, 105 A.D.3d 54 (4^th Dept. 2013); see also Matter of Ducey, et al., 65 St Dept Rep 65; Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678).  Furthermore, it is the nature and continuity of the particular substitute assignment which determines whether or not such service was regular, and therefore sufficient to warrant seniority credit (Appeal of Goldman 43 Ed Dept Rep, Decision No. 15,011; Matter of Matera, 17 id. 459, Decision No. 9,701).  Simply “filling various positions when and as needed” is not sufficient to be regular full-time substitute service  (Matter of Matera, 17 Ed Dept Rep 459, Decision No. 9,701).

Here, petitioner was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class from February 3, 2004 through June 11, 2005.  However, the record reflects that the specific substitute service for which petitioner seeks seniority credit provided between October 1, 2004 and May 31, 2004 was by its nature, per diem.  Although petitioner was required to report to one of respondents elementary schools each day, the particular teaching assignment varied or could vary each day pursuant to the needs of the school.  The fact that she served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position.  Therefore, although her substitute service may have been regular and consistent within the school building, because petitioner substituted for various teachers, in various capacities, and for various time periods, respondent properly omitted petitioner’s per diem substitute service when calculating her seniority.

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE