Appeal of KATHI GIMBRONE from action of the Board of Education of the Randolph Central School District, Kimberly Moritz, as superintendent, Michael Caprino, Melissa Shawley, Nicole Pollock and Cassie Stronz regarding preferred eligibility rights.

Decision No. 17,036

(January 30, 2017)

Hodgson Russ, LLP, attorneys for respondents Board of Education of the Randolph Central School District and Kimberly Moritz, David A. Farmelo, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges various actions of the Board of Education of the Randolph Central School District ("respondent board” or “board”) and Superintendent Kimberly Moritz (“superintendent,” collectively referred to as “respondents”) relating to her preferred eligibility rights.  The appeal must be dismissed.

Petitioner is certified in reading and elementary education.  Petitioner was appointed to a probationary position in respondents’ district in the remedial reading tenure area and was granted tenure in reading effective August 29, 2004.  Due to budgetary constraints, at its June 3, 2009 board meeting, the board voted to abolish two reading positions.  By letter dated June 4, 2009, the superintendent notified petitioner that her reading teacher position was abolished, effective June 30, 2009, and that she would be placed on a preferred eligibility list.

Thereafter, petitioner commenced an appeal to the Commissioner asserting that she was improperly terminated because she had a right to a position in the elementary tenure area.  Specifically, petitioner alleged that she accrued seniority in the elementary tenure area during the 2001-2002 and 2002-2003 school years and that she was entitled to “bump” a teacher in the elementary tenure area with less seniority.  In a decision dated December 9, 2010, the Commissioner dismissed her appeal, finding that petitioner failed to provide detailed calculations and/or sufficient documentation to substantiate her claim that she had accrued seniority in the elementary tenure area for those school years (Appeal of Gimbrone, 50 Ed Dept Rep, Decision No. 16,177). 

In April 2010, a Title I remedial mathematics teacher in the elementary tenure area submitted his resignation.  The district reassigned Michael Caprino (“Caprino”), another teacher in the district, to this position. Thereafter, three other positions in the elementary tenure area became vacant at the end of the 2009-2010 school year and Melissa Shawley, Nicole Pollock and Cassie Stronz were assigned to these positions.[1]  This second appeal ensued and petitioner’s request for interim relief was denied on October 15, 2010. 

Petitioner seeks reinstatement to Caprino’s position with back pay, seniority and other benefits. Petitioner argues that Education Law §3013 required respondents to offer her this position because the duties of her prior position as a teacher of remedial reading in the district’s Title I program were similar to the duties of the position now held by Caprino. She further claims that her due process rights were violated because she was improperly denied a pre-termination hearing on the similarity of her former position and the position held by Mr. Caprino.  Petitioner also asks that I reject respondents’ supplemental memorandum of law as untimely and that I not consider any new allegations contained in the memorandum.  She further asserts that she has made several Freedom of Information Law (“FOIL”) requests to the district which have been denied.

Respondents assert that petitioner is not entitled to appointment to the position in the elementary tenure area under Education Law §3013(3) for several reasons:  the position was not vacant because Mr. Caprino was reassigned from another position in the district to that position, and the position from which petitioner was excessed in 2009 is dissimilar in function and scope from the position to which she seeks appointment.  Respondents further claim that petitioner was not entitled to a hearing on the similarity of the two positions because that entitlement only attaches before an employee is terminated.  Respondents also allege that the appeal is untimely with respect to Moritz and request that I accept their memorandum of law because the Commissioner has discretion to accept additional materials and late submissions.

First, I must address the procedural issues. Petitioner requests that respondents’ supplemental and revised memoranda of law be rejected as untimely because no such items exist within the regulations.  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). The record indicates that respondents served a memorandum of law on December 2, 2010, before it was due.  In light of the fact that respondents served a supplemental memorandum of law and revised memorandum of law on December 3, 2010, before the time limit for service of their memorandum of law expired, I have accepted these documents.  However, consistent with my ruling herein regarding new allegations introduced belatedly, I have not considered the portions of the supplemental and revised memoranda that address any new allegations.

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). 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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  In circumstances such as this, where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582; Appeal of Dickinson, 50 id., Decision No. 16,082; Appeal of Petkovsek, 48 id. 513, Decision No. 15,933; Appeal of Berowski, 28 id. 53, Decision No. 12,027).  An affidavit from Mortiz, the superintendent, reveals that she was not served until October 15, 2010.  Since petitioner failed to initiate the appeal within 30 days of September 1, 2010, the school start date on which petitioner became aggrieved, I must dismiss the appeal against Moritz as untimely, though it does not appear that the superintendent was a necessary party and the appeal was timely commenced against the other respondents.

Turning to the merits, respondent board argues that because respondent Caprino was reassigned from another position in the district to a remedial mathematics position in the 2010-2011 school year, there was no vacancy for purposes of recall from a preferred eligibility list, citing Dionisio v. Board of Educ. of the Mahopac Cent. School Dist. et al., 147 AD2d 641 (2d Dept. 1989).  In Dionisio, the court ruled that a school district is not required to rearrange academic schedules in order to recall an excessed teacher from a preferred eligibility list and since it had authority to reassign the respondent teacher within her tenure area, it was not required to refrain from such reassignment to accommodate the petitioner’s preferred eligibility rights.  However, the facts of the current appeal differ from Dionisio in two important respects.  First, in Dionisio, the court held that the petitioner was not legally qualified to teach in the vacant remedial reading position that was created by the reassignment.  Petitioner in this appeal is certified to teach in both remedial reading and elementary education.  It is unclear whether the reasoning of Dionisio would apply where, as here, the petitioner is legally qualified to hold the position from which the respondent teacher was reassigned.

However, I need not reach that issue because of the second factual difference between Dionisio and this appeal.  The facts involved in Dionisio occurred prior to the effective date of Part 30 of the Rules of the Board of Regents.  At that time, the district placed remedial reading positions in the elementary tenure area (see Appeal of Dionisio, 28 Ed Dept Rep 186, Decision No. 12,077, pet. to review dismissed sub nom, Dionisio v. Sobol, Sup. Ct., Albany Co. (McDermott, J.), August 17, 1989, n.o.r.), so it involved reassignment within a tenure area.  In this appeal, respondents argue that in accordance with Part 30, remedial reading is a special subject tenure area separate from the elementary tenure area and petitioner is seeking reinstatement to a position that is not in the tenure area of the abolished position.  For the reasons stated below, I concur with respondent board’s argument that petitioner cannot seek recall to a position in a tenure area other than the tenure area of the abolished position because the two positions are not similar, which makes it unnecessary to decide if Dionisio should be extended to a situation in which the petitioner is legally qualified to teach in the position from which a teacher was reassigned. 

In any event, petitioner is not entitled to appointment to the position at issue under Education Law §3013(3), which governs the rights of a former employee to re-employment, because the new position is not similar to that of petitioner’s former position.  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 or she has filled.

Thus, petitioner is entitled to appointment to a newly created position only if the new position is similar to her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028 2^nd Dept [1983]).  The test of whether the two positions are in fact “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, 2^nd Dept (1983); Appeal of DeBowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923; Appeal of Elmendorf, 36 id. 308, Decision No. 13,733). 

Here, 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 Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.; Appeal of Schwarz, 28 Ed Dept Rep 101, Decision 12,045; judgment granted dismissing petition to review, sub nom. Sup. Ct., Albany Co., Special Term, [Cheeseman, J.] May 2, 1989, n.o.r.; aff'd 163 AD2d 715; aff'd 78 NY2d 935 [1991]; Appeal of Gworek, 21 Ed Dept Rep 501, Decision No. 10,769).

Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered (Appeal of DeBowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Jordan, 37 id. 487, Decision No. 13,910).  However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Appeal of Langton, 28 id. 146, Decision No. 12,060; Matter of Elkins, 14 id. 193, Decision No. 8,934).  In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Kelly v. Ambach et al., 83 AD2d 733 Matter of Davis v. Mills, 285 AD2d 703, aff’d 98 NY2d 120; Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Appeal of Schwarz, 28 id. 101, Decision 12,045).

The record reveals that the position at issue was in the elementary tenure area and that petitioner’s former position was in the special subject tenure area of remedial reading (see 8 NYCRR §§30-1.5, 30-1.8).  Therefore, the positions are in different tenure areas.

 
Further, in Brown v. Bd. of Educ., Morrisville-Eaton Central School District, et al., 211 AD2d 887 (3^rd Dept. 1995), the court noted that "certification is a statutory requirement of no small significance in determining whether the new position is similar to the old one."  Here, the positions require different teaching certifications, i.e., the remedial reading position requires a reading or literacy certificate and the remedial mathematics position requires a certificate in elementary education.  The differences in certification requirements indicate that the skills required for the two positions are not similar.

Moreover, the duties of petitioner’s former position and Caprino’s position are not similar.  Petitioner asserts, among other things, that the duties of a remedial math teacher and remedial reading teacher are similar because the students they teach are placed in a federally - funded Title I program[2] based on their assessment scores; these teachers work with students in small groups and consult with classroom teachers on a weekly basis regarding the progress of such students; complete quarterly progress reports that are sent home to parents; attend parent/teacher conferences; and provide after school study sessions.  While this may be true, these are duties common to many teachers, and that does not make such teaching positions similar for purposes of recall rights.  I must also reject petitioner’s claim that because these are both Title I positions, they are similar.  The fact that both positions are Title I positions is reflective of the source of funding for these positions, and is not relevant to the similarity of the duties of these positions.  Moreover, petitioner seems to ignore the fact that the duties of a remedial mathematics teacher and a remedial reading teacher involve instruction in completely different subjects.

Further, after comparing the information in the record regarding the duties associated with the two positions, I find that petitioner has not met her burden of proving that the duties of her former position as a remedial reading teacher are more than 50 percent similar to those of the newly created position.  In fact, the superintendent stated in her affidavit that at the time petitioner’s teaching position was abolished, petitioner’s duties consisted solely of remedial reading instruction and she was not providing instruction in remedial mathematics or any form of regular classroom instruction.  I find that petitioner cannot meet her burden of proving the similarity of the duties of the two positions through her subjective and unsubstantiated description of the duties she allegedly performed compared with respondents' description of the position to which petitioner lays claim (see Appeal of Donato, 41 Ed Dept Rep 246, Decision No. 14,677; judgment granted dismissing pet. to review, Sup. Ct., Albany Co. (Stein, J.), January 14, 2003, aff’d sub nom. Donato v. Mills, 6 AD3d 966).  Therefore, I find that petitioner has not proven that she is entitled, as a matter of law, to Caprino’s position in the elementary tenure area.

Petitioner also asserts that she was entitled to a pre-termination hearing with respect to the similarity of the duties of her former position and the position to which she now lays claim.  Procedural due process rights are owed to a tenured public school teacher or administrator when the teacher or administrator has a colorable claim under Education Law §§2510(1) or 3013(1) (Fairbairn v. Board of Education of South Country Cent. School Dist., et al., 876 F. Supp. 432 (E.D.N.Y. 1995); Goldberg v. Board of Education of the Hempstead School Dist., 777 F. Supp. 1109 (E.D.N.Y. 1991); DeSimone v. Board of Education of South Huntington UFSD and Connelly, 612 F. Supp. 1568 (E.D.N.Y. 1985); Appeal of Elmendorf, 36 Ed Dept Rep, Decision No. 13,733).  These cases are based on a constitutional entitlement to due process before a tenured person is terminated from his or her employment.  I find that the cases cited by petitioner in support of her claim are inapposite because in this appeal petitioner is seeking recall from a preferred eligibility list months after her termination.  The cases cited above all involve situations in which the teacher or administrator was employed at the time the issue of similarity arose. 

Petitioner appears to rely on Appeal of Elmendorf (36 Ed Dept Rep 308, Decision No. 13,733) for her claim that she is entitled to a pre-termination hearing even though she was terminated from her position many months before the new position was created.  I find Appeal of Elmendorf to be distinguishable from the instant case. In that case, petitioner’s position was abolished effective June 30, 1995.  On June 20, 1995, before petitioner’s termination became effective, she wrote to the district and made a claim to the newly created position of assistant superintendent.  Here, there was no claim to Caprino’s position at the time petitioner was terminated.  Therefore, I find that petitioner was not entitled to a pre-termination hearing.

In view of the foregoing, I cannot conclude that respondent board was arbitrary or capricious in not recalling petitioner to this position.

Finally, to the extent petitioner makes FOIL allegations, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

In light of this disposition, I need not address petitioner’s remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE