Appeal of RENEE ESCHMANN, from action of the Board of Education of the Tuckahoe Union Free School District, the Tuckahoe Union Free School District, Sabrina Peduto and Dr. Randi Newman, regarding seniority and preferred eligibility rights.

Decision No. 16,853

(December 3, 2015)

Richard E. Casagrande, Esq., attorney for petitioner, Jacquelyn Hadam, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

Elia, Commissioner.--Petitioner appeals the decision of the Board of Education of the Tuckahoe Union Free School District (“respondent board”) and the Tuckahoe Union Free School District (“respondent district”) (collectively “respondents”) to appoint Sabrina Peduto to the position of school psychologist.  The appeal must be sustained.

Petitioner is a licensed psychologist and holds a permanent certification in school psychology.  In November 2000, petitioner was employed by respondent district in a probationary appointment as a certified school psychologist in the school psychologist special subject tenure area.  In November 2002, Petitioner was granted tenure in the school psychologist special subject tenure area.  Effective June 30, 2006, respondent district abolished petitioner’s position and petitioner was placed on the preferred eligibility list (“PEL”) for the school psychologist special subject tenure area.

The record indicates that, in July 2013, petitioner became aware that respondent district posted a full-time school psychologist position for the 2012-2013 school year, to which it had appointed Ms. Peduto in February 2013.

By letters dated September 15, 2013 and October 22, 2013, petitioner notified an assistant superintendent at respondent district and respondent board, respectively, of her entitlement to the school psychologist position and requested reinstatement to her former position.  By return correspondence dated October 30, 2013, respondents acknowledged receipt of petitioner’s correspondence but stated that she was not entitled to the position as it was not more than 50 percent similar to her former position and that, in any event, the position was filled in August 2013,[1] at which time petitioner was no longer on the PEL.  Thereafter, petitioner timely commenced an Article 78 proceeding in Westchester County Supreme Court seeking an order and judgment for reinstatement to her former position.  By decision and order dated May 5, 2014, the petition was dismissed under the doctrine of primary jurisdiction.  This appeal ensued.

Petitioner contends that the duties of her former position are substantially similar to the duties of the school psychologist position and, therefore, pursuant to Education Law §2510, petitioner was entitled to be appointed to that position.  Petitioner seeks an order directing respondent board to appoint her to the school psychologist position as of the time it was filled in February 2013.  Petitioner further seeks an order granting back pay and benefits as well as seniority credit, retirement service credit and any other emoluments of employment nunc pro tunc to February 2013.

Respondents generally deny petitioner’s entitlement to the position of school psychologist.  Respondents argue that the position is not similar to petitioner’s former position because it contained duties relating to the committee on special education (“CSE”) and the committee on preschool special education (“CPSE”).  Respondents further assert three affirmative defenses: improper service, failure to state a claim upon which relief may be granted, and that the petition is untimely.  For all of the above reasons, respondents argue that the appeal must be dismissed.

First, I must address several procedural issues.  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).  However, in circumstances similar to those presented here, where a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" in §275.16 of the Commissioner’s regulations.  Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Matter of McClure Hessney, 37 Ed Dept Rep 366, Decision No. 13,881; Matter of Buffalo Teachers Federation, Inc., 23 id. 230, Decision No. 11,197; Matter of Van Druff, 21 id. 635, Decision No. 10,816).  As the instant appeal was commenced within 30 days after the dismissal of the Article 78 proceeding, I find that it was timely commenced.

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).  Respondent submitted a response to petitioner’s reply (“sur-reply”), with supporting affidavits. The regulations of the Commissioner do not expressly permit a response to a reply.  The regulations do allow parties to submit additional pleadings, but only with the prior permission of the Commissioner (8 NYCRR §275.3[b]).  Respondents argue that the briefing schedule agreed to by the parties provided for submission of a sur-reply, however I find this argument unpersuasive because the parties cannot agree to the submission of additional pleadings if the requirements of §275.3(b) of the Commissioner's regulations are not met.  The regulations allow parties to submit additional pleadings, but only with the prior permission of the Commissioner (8 NYCRR §275.3[b]).  The regulations also require that the proposed pleading accompany such an application (8 NYCRR §275.3[b]).  The response to petitioner’s reply was not submitted in accordance with §275.3(b) of the Commissioner's regulations as neither of those requirements were met and, therefore, respondents’ sur-reply is not part of the record and will not be considered in this appeal.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  Respondents argue that respondent board and respondent district were not properly served in this matter because the petition was served on Victor Karlsson, a school business official, who is not authorized to accept service on behalf of respondent board or respondent district.  In support of this claim, respondents submit an affidavit from Karlsson which substantially states that he received the envelope containing the petition, that he gave his name and title to the process server, and that he is aware of the service requirements of §275.8, under which he is not an individual authorized to accept service.  Conversely, petitioner submits an affidavit from the process server indicating that he believed Karlsson to be an authorized agent and that Karlsson indicated he was authorized to accept service.  I have previously held that service is not proper where there has been no representation by the individual as to his or her authority to accept service (Appeal of Kenton, 54 Ed Dept Rep Decision No. 16649; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).  In this case, Karlsson’s affidavit does not indicate whether or not he stated that he was not authorized to accept service, however the affidavit of petitioner’s process server states that Karlsson affirmatively indicated he was authorized to accept service.  The burden is on respondent to establish its affirmative defense, and on this record, I find that respondent has failed to do so (see e.g. Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Thus, I decline to dismiss the appeal for failure to properly serve respondent under these circumstances.

I also decline to dismiss this appeal for failure to join a necessary party.  Respondents argue that Dr. Randi Newman, who was appointed as a school psychologist in August 2013, is a necessary party and that petitioner failed to name her as a party in the original petition and effect service upon her.  Indeed, 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).  By letter dated July 21, 2014 from my Office of Counsel, the parties were advised that petitioner’s request to join Dr. Newman was granted.  At that time, petitioner had already served a petition and an amended petition on Dr. Newman and filed with my Office of Counsel, on June 30, 2014, an affidavit of service for the same.  The record in this matter clearly indicates that petitioner made no claim to Dr. Newman’s position.  Further, Dr. Newman’s interests are unified with those of the other named respondents, all of whom are represented by the same attorney in this matter.  Consequently, in this instance, I find the failure to include Dr. Newman in the original petition is not a basis for dismissal of this appeal.

Turning now to the merits of this appeal, petitioner asserts that she is entitled to the school psychologist position because it is similar to her former position and is in the same tenure area.  Education Law §2510(3) governs the rights of a terminated employee to re-employment.  Paragraph (a) of that subdivision provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.

Accordingly, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position.  The test to determine whether the two positions are "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Matter of Evans, 10 id. 156, Decision No. 8,252).  Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, III, 37 id. 544, Decision No. 13,923).  However, it should be noted that the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

Respondents argue that the positions are not similar because the position posed and filled in 2013 contained CSE/CPSE chairperson duties, which were not a part of the duties of petitioner’s former position.  On this record, I find that petitioner has met her burden of proving that the two positions are similar.  In assessing similarity, the law does not require a comparison of job titles, but rather an analysis of job responsibilities.  However, the relevant job responsibilities are the responsibilities of the position at the time it was filled, when any rights petitioner might have to appointment from the preferred eligibility list attached.  Although I recognize that the title of the position is not dispositive in and of itself, I note that the job posting and the minutes of the February 2013 board meeting indicate that Ms. Peduto was appointed as a school psychologist with no mention of any duties as a CSE or CPSE chair.  Respondents argue that the title was not intended to fully describe the duties of the position.  However, the record indicates that respondent district had posted and filled another position in August 2012 that was titled “Psychologist/CSE Chairperson”[2] and a description of the job duties that explicitly included chairing the CSE.  Therefore, it appears from the record that respondent district’s past practice was to identify a position as having both school psychologist and CSE chairperson duties at the time of recruitment for, and appointment to, the position.  Respondents have offered no satisfactory explanation of why this past practice was not followed when Ms. Peduto was hired and appointed.

In this case, the burden is on petitioner to show that, at the time the position was posted and filled, the duties were similar to those of her former position.  The record indicates that petitioner’s duties were identical to those of Ms. Peduto, except that respondents assert that Ms. Peduto spends 75 percent of her time serving as a CSE/CPSE chairperson while petitioner asserts that she spent 25 percent of her time participating in meetings, including CSE meetings.  The record as a whole shows that, at the time the position was filled, Ms. Peduto did not perform the duties of CSE or CPSE chairperson and that such duties were performed by Lynn Fishbeck, a consultant in the district.  Affidavits submitted by respondents indicate that Ms. Fishbeck performed the duties of the 504 coordinator at that time as well.  Ms. Peduto states in her affidavit that, in the spring of 2013, she “prepared for and attended 20 CSE meetings, 24 CPSE meetings, and 13 504 meetings.”  She further indicates that only one party could be the signing chairperson at the meetings and that Ms. Fishbeck did so for all of the meetings she attended, with the exception of two.  I note that, in accordance with section 200.3 of the Commissioner’s regulations, the duties of the chairperson of the CSE include presiding over the CSE meeting[3] (see 8 NYCRR §200.3).  There is clearly an overlap between the duties of the school psychologist member of a CSE or CPSE and that of chairperson, but a CSE or CPSE chairperson clearly has duties beyond those of a CSE or CPSE member.  None of the duties specific to a CSE or CPSE chairperson are asserted to have been performed by Ms. Peduto, and in fact she admits in her affidavit that, at the time of her hiring and appointment, Ms. Fishbeck performed such duties.  While respondents assert that Ms. Peduto’s duties are distinctly those of a CSE chairperson, the record does not support that assertion.  It appears from the record before me that Ms. Fishbeck was performing the duties of the chairperson after Ms. Peduto was appointed and the fact that Ms. Peduto was subsequently assigned to perform those same duties, and was appointed to do so in July 2013, is irrelevant.

I find that respondents have offered no evidence of the duties performed by Ms. Peduto in the 2013-2014 school year beyond those of a CSE or CPSE member.  The record shows that petitioner served as a member of the CSE and that she performed duties similar to the duties of members of the CPSE and the Section 504 committee.  Therefore, absent any other evidence, I find the duties Ms. Peduto performed following her appointment are indistinguishable from those of a CSE member and, as such, are similar to those performed by petitioner in her former position.  Accordingly, the appeal must be sustained.

Finally, I am compelled to comment on the manner in which respondents have answered the petition. In their answer, respondents merely deny knowledge or information sufficient to form a belief as to the amount of time petitioner spent performing the duties of her former position.  Additionally, respondents fail to provide a detailed breakdown of the duties Ms. Peduto performed in her current position, specifically the duties of a Chairperson for CSE, CPSE and Section 504 committee meetings; as Ms. Peduto alleges such roles consume 75-80 percent of her time, production of an enumeration of such tasks was within the control of respondents.  Respondents are advised to make reasonable efforts in the future to learn the facts necessary to prepare a meaningful response to such allegations.

THE APPEAL IS SUSTAINED.

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