Appeal of MANDI KOWALIK from action of the Board of Education of the Center Moriches Union Free School District regarding her preferred eligibility rights.

Decision No. 18,032

(August 17, 2021)

Beranbaum Menken, LLP, attorneys for petitioner, John A. Beranbaum, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the alleged failure of the Center Moriches Union Free School District (“respondent”) to offer her a position in accordance with her preferred eligibility rights.  The appeal must be dismissed.

Respondent employed petitioner as a teacher from 2004 through 2017.  In spring 2017, respondent eliminated multiple teaching positions.  As a result, petitioner was excessed from her position and placed on a preferred eligibility list (“PEL”).  At that time, petitioner was second on the list.  Subsequently, respondent appointed Ms. Susan LaSorsa as a substitute and, thereafter, a leave replacement teacher. 

In June 2020, the Center Moriches Teachers’ Association (“CMTA”) filed a grievance alleging that respondent violated the terms of their collective bargaining agreement “when it failed to notify teachers whose names [we]re on the Preferred Eligibility List for K-6 certification of [vacancies] within their certification area during the school year 2019-20.”  In a July 6, 2020 letter, respondent disclaimed any wrongdoing but stated its commitment “to adhere to all legal requirements regarding recalling teachers from the [PEL] ....”  A CMTA representative signed this letter on July 27, 2020, reflecting the CMTA’s intent to withdraw its grievance with prejudice.  This appeal ensued.

Petitioner asserts that, as of February 2020, she was the most senior individual on the PEL list; thus, she should have been recalled to the position occupied by Ms. LaSorsa.  Petitioner further alleges that respondent hired Ms. LaSorsa “because [her] salary was lower ....”  Petitioner seeks an “order requiring the District to pay her the wages she would have received” from February to May 2020.  Petitioner also seeks $2,500 per month during this time period, which represents her out-of-pocket costs for health insurance.

Respondent contends, among other defenses, that the appeal must be dismissed as untimely and for failure to join a necessary party.  On the merits, respondent denies that petitioner was entitled to recall from the PEL prior to June 2020, or that she is entitled to any relief.

First, I must address a procedural matter.  Petitioner has submitted a reply and reply affidavit.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply and accompanying affidavit, 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 untimely.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Where the alleged wrong is that another employee has been appointed to a position in violation of a petitioner’s preferred eligibility rights, the petitioner becomes aggrieved on the date that such other person commences service in the position at issue (Appeal of Gimbrone, 56 Ed Dept Rep, Decision No. 17,036; Appeal of Gordon, 53 id., Decision No. 16,582; Appeal of Petkovsek, 48 id. 513, Decision No. 15,933).  This applies, for example, to a claim under Education Law § 3013 (1) that a school district has created a new position to which the petitioner is entitled or a claim under Education Law § 3013 (3) that the petitioner is entitled to reinstatement to a particular position from a PEL (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Gordon, 53 id., Decision No. 16,582).  Additionally, in some circumstances, an appeal concerning PEL rights may be commenced within 30 days of discovery of an alleged wrongdoing (Appeal of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082; see Appeal of Goldin, 43 id. 330, Decision No. 15,009; Appeal of Johnson, 38 id. 327, Decision No. 14,045).

Here, petitioner contends that respondent failed to appoint her to the position for which it hired Ms. LaSorsa.  Petitioner alleges that Ms. LaSorsa was appointed a “Preferred Substitute teacher” on July 10, 2019, and an “Elementary Leave Replacement Teacher” on January 15, 2020.[1]  Petitioner further asserts that she that did not learn of Ms. LaSorsa’s January 2020 appointment until she “listen[ed] to a live stream [] of the School District’s Board of Education on or about May 23, 2020.”  Therefore, petitioner admits that she learned of Ms. LaSorsa’s appointment on May 23, 2020.  Assuming without deciding that the 30-day time limitation ran from this date,[2] the calculation most favorable to petitioner, petitioner’s service of the petition on September 5, 2020 was 105 days thereafter.

Petitioner suggests that the delay should be excused because the instant matter is, or was, the subject of a pending grievance.  However, the existence of a union grievance does not affect the time in which to bring an appeal.  Because petitioner fails to set forth any good cause for such delay in the petition, the appeal must be dismissed as untimely (8 NYCRR 275.16; compare Appeal of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082 [untimely commencement of appeal excused where board of education did not directly inform petitioner of a vacancy and petitioner did not gain actual knowledge of another employee’s appointment to contested position until six months later]).

Even if the appeal were timely, it would be dismissed for failure to join a necessary party.  A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Petitioner’s argument rests upon two suppositions; first, that the district should have utilized the PEL to fill a position on January 15, 2020, and, second, that the first person on the list, Ms. Heather Dawley, would have declined the job offer.  Although petitioner claims that Ms. Dawley “had taken a job with another school district” in January 2020 “and had a contract for the 2019-2020 school year,” these hearsay assertions do not compensate for Ms. Dawley’s inability to respond to the petition and enter a defense.[3]  Therefore, at a minimum, I find that Ms. Dawley is a necessary party and that the appeal cannot be decided in her absence.

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

THE APPEAL IS DISMISSED.

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