Appeal of SEAN DONNELLAN from action of the Board of Education of the Levittown Union Free School District, Superintendent Dr. James Grossane, and Beth Poris regarding seniority.

Decision No. 16,657

(August 19, 2014)

Richard E. Casagrande, attorney for petitioner, Wendy M. Star, Esq., of counsel

Lamb & Barnosky, LLP, attorney for respondents Board of Education of the Levittown Union Free School District and Dr. James Grossane, Lauren Schnitzer, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges the decision of the Board of Education of the Levittown Union Free School District (“respondent” or “board”) and superintendent Dr. James Grossane (“superintendent”) (collectively “respondents”) to terminate his employment.  The appeal must be sustained.

Petitioner is a certified mathematics teacher and was appointed by the board to a full-time leave replacement position on July 6, 2005, effective September 1, 2005. Respondent Beth Poris (“Poris”) is a certified mathematics teacher and was appointed by the board on September 14, 2005, effective September 1, 2005.

Both petitioner and respondent Poris served as full-time substitutes in the mathematics tenure area from September 1, 2005 through June 30, 2006.  At the May 9, 2006 board meeting, both petitioner and respondent Poris were terminated from their full-time leave replacement positions.  During the same May 9, 2006 board meeting, respondent board granted Poris a probationary appointment in the mathematics tenure area, effective September 1, 2006.  On June 14, 2006, the board granted petitioner a probationary appointment in the mathematics tenure area, effective September 1, 2006.  Following a successful three-year probationary period, which included the year of service as full-time substitutes, both petitioner and Poris were granted tenure on March 12, 2008, effective September 1, 2008.

Due to enrollment projections and staff ratios, respondents found it necessary to abolish two positions in the mathematics tenure area effective June 30, 2013.  Respondent board calculated the seniority credit for both petitioner and respondent Poris to be eight years, which includes the year in which they both served in full-time leave replacement positions.

By letter dated April 19, 2013, the district notified petitioner that pursuant to board action on June 12, 2013, his employment would be discontinued effective August 31, 2013, and that he would be placed on a preferred eligibility list for reappointment to a position in the mathematics tenure area.  This appeal ensued.

Petitioner asserts that he was improperly terminated in violation of Education Law §§2510(2) and 3013(2) and §30-1.13 of the Rules of the Board of Regents, because he was more senior than respondent Poris in the mathematics tenure area.  Petitioner asserts that respondent board violated the law by including the year in which he served as a full-time substitute in the seniority calculation, but incorrectly and arbitrarily applying the later probationary appointment date to determine which teacher should be excessed.

Petitioner requests that I declare him to be more senior than respondent Poris based upon his initial appointment date of July 6, 2005, and that respondent board’s action in excessing petitioner was in violation of law, proper procedure, and arbitrary and capricious.  Petitioner further requests that I direct respondent board to immediately transfer him to a teaching position in the mathematics tenure area and that he be awarded back pay with interest and benefits.

Respondents maintain that petitioner was properly excessed pursuant to Education Law §§2510(2) and 3013(2) and §30-1.13 of the Rules of the Board of Regents.  Respondents concede that, including the year of service as full-time substitute teachers, both petitioner and respondent Poris have eight years of service within the district.  Respondents claim, however, that petitioner was properly excessed as less senior than respondent Poris in the mathematics tenure area because using the probationary appointment date was a reasonable and rational means to break the tie in actual full-time service rendered.  Therefore, respondents assert that they properly exercised discretion when they determined respondent Poris to be more senior based on Poris’ May 9, 2006 probationary appointment which was one month prior to petitioner’s June 14, 2006 probationary appointment.

As an affirmative defense, respondents assert that petitioner has failed to state a claim upon which relief may be granted, and has failed to demonstrate a clear right to the relief requested.  Respondents further assert that if petitioner is successful in this appeal, any award of back pay must be reduced by petitioner’s actual wages earned or unemployment compensation received, and any wages that could have been received had petitioner properly mitigated his damages.

First, I must address a procedural matter.  Together with their verified answer, respondents submitted an affidavit from Darlene Rhatigan, the Assistant Superintendent for Administration/Personnel.  Petitioners object to the affidavit as an additional pleading submitted in violation of Commissioner’s regulation §275.3(a).  However, §275.13 sets forth the process by which a respondent must serve its answer, “together with all of respondent’s affidavits, exhibits and other supporting papers.”  As a result, I find that the Rhatigan affidavit was properly submitted in support of respondents’ answer.

Turning to the merits, 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).

The general principles regarding seniority calculation are well settled.  When a board of education abolishes a position, it is required by Education Law §§2510(2) and 3013(2) to discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (Matter of Cole v. Board of Education, 90 AD2d 419; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933).  The first criterion for determining seniority is actual full-time service rendered (Matter of Dreyfuss v. Board of Education, 76 Misc2d 479, aff'd 45 AD2d 988; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933; Matter of Fallick, 18 id. 586, Decision No. 9,979).  If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority (Matter of Schoenfeld v. BOCES of Nassau County, et al., 98 AD2d 723; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933; Matter of Fallick, 18 id. 586, Decision No. 9,979; Matter of Ferguson, 14 id. 102, Decision No. 8,884; Matter of Ducey, et al., 65 St Dept Rep 65).

In determining the order of seniority of teachers within a district "it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution" (Matter of Ducey, et al., 65 St Dept Rep 65 at 66; see also Matter of Schoenfeld v. BOCES of Nassau County et al., 98 AD2d 723).  However, if teachers have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority (Appeal of Schoenfeld v. BOCES of Nassau County, et al., 98 AD2d 723; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933).

     Respondents correctly assert that Ducey and its progeny establish a teacher’s right to seniority credit for service as a full-time substitute, 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, respondents also contend that because service as a full-time substitute does not accrue unless it is followed by a probationary appointment, it is the probationary appointment which must be considered when determining seniority for excessing purposes.  Based on the case law and the record before me, I disagree.

 Respondents are correct that pursuant to Appeal of Carey it is the probationary appointment which triggers a teacher’s right to seniority credit for prior full-time substitute service.  However, contrary to respondents’ assertion, Carey does not establish the probationary appointment as the date which must be considered under the circumstances presented in the instant appeal.  The facts in Carey are distinguishable from those presented here as Carey did not involve a district deciding between the initial and probationary appointment dates of two teachers with equal seniority, including time served as full-time substitutes. At issue in Carey was whether or not seniority credit accrued when full-time service was interspersed with other part-time service within the same district.

Therefore, Carey does not establish the probationary appointment date as the definitive date under the facts presented here, but further supports the holding and rationale of Ducey, which extends seniority credit to those teachers who receive a probationary appointment following service in a full-time regular substitute position because such actions signify the commencement of a formal relationship between the teacher and the district.

To further support their use of the probationary appointment to determine seniority in this case, respondents rely on Matter of Kulick, 34 Ed Dept Rep 613, Decision No. 13,428.  In that case, two teachers had equal service as physical education teachers, and the Commissioner found that the district erred by immediately using a tie breaker rather than considering the teachers’ appointment dates. There, the board contended that in a case of equal seniority, it was proper for the board to use a reasonable means to break the tie.  However, the Commissioner noted that “[i]f teachers have equal service, a board of education must evaluate whether the teachers’ appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority” (Matter of Kulick, 34 Ed Dept Rep 613, Decision No. 13,428).

Respondents argue that because previous Commissioner’s decisions have not specifically defined “appointment date” to mean the initial appointment by the board, and because other decisions endorsed the use of the probationary appointment date, the use of the probationary appointment date was reasonable and rational.  I disagree.  It is true that neither Ducey nor later cases distinguish a probationary appointment from an initial appointment when crediting full-time substitute service.  However, this precise issue was not presented in those cases.

In addition to the seniority rights that accompany regular substitute service, Ducey further states “it is clear that the teacher whose appointment occurred first had a longer seniority.”  The underlying purpose of reviewing appointment dates is to determine which teacher became affiliated with the district first.  To support the principle that seniority rights do accompany regular substitute service, Ducey and the subsequent cases emphasize that it is by board action that a formal relationship between the district and the teacher is created.  As stated in Ducey:

[t]he date when a teacher commenced her service in the system is the date she started her probationary period, if that was the first date that she became connected with the system.  If she had been employed by the board as a regular substitute prior to the service as a probationary teacher, the date of the commencement of regular substitute service is the date of commencement of her seniority.  Teachers employed on a regular substitute basis are ordinarily, and should be, employed pursuant to board action (Matter of Ducey, et al., 65 St Dept Rep 65).

In the instant case, both petitioner and respondent Poris commenced service as regular full-time substitutes on September 1, 2005. The record further reflects that petitioner was appointed to the full-time regular substitute position on July 6, 2005, more than two months before respondent Poris was appointed by board action on September 14, 2005.  Applying the long-settled principles of Ducey, because petitioner’s July 6, 2005 appointment to the regular full-time leave replacement position, which occurred pursuant to board action, indicates his commencement of service within the system, it is that initial appointment date from which both the seniority calculation and appointment date determination should have been made.  While respondents properly calculated the service time of petitioner and respondent Poris to include their full-time leave replacement positions, respondents erred in selecting the 2006 probationary appointment dates as the dates which established seniority.

Therefore, as more senior than respondent Poris, petitioner was improperly excessed.  In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Levittown Union Free School District reinstate petitioner to the position to which he is entitled in accordance with this decision, and provide him with back pay and benefits and seniority credit from June 30, 2013, less any compensation he may have earned in the interim.

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