September 28, 2010

Removing an individual's name from the preferred list

Removing an individual's name from the preferred list
Donato v Plainview-Old Bethpage CSD, 264 AD2d 843

Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division.

The case illustrates that, as a general rule, it is the employer’s duty to canvass the preferred list when it wishes to fill a position for which the list must be used.

Donato was initially appointed as a social studies teacher by the district in 1966. She was given tenure as social studies chairperson effective September 1, 1984. In 1991 Donato was “excessed” [i.e., laid off] when the district abolished the chairperson position for budgetary reasons. Her name was placed on a preferred list for the title.

In accordance with former Section 2510(3)(a) of the Education Law, Donato’s name was to be certified from the preferred list for appointment to the same or a similar position for a period of seven years from the effective date of her layoff.

In September 1997, the district appointed Dorothy Wohl to the position of social studies department chairperson. Upon learning of Wohl’s appointment, Donato wrote to Superintendent Anthony Cavanna contending that she was entitled to reinstatement to the position to which Wohl had been appointed since she was on the preferred list.

In October 1997, the district wrote to Donato advising her that her request for reinstatement was denied. Donato sued Cavanna and the Board of Education by filing an Article 78 action in January 1998 seeking reinstatement and back salary. She also named Wohl as a necessary party in her petition.

The board and Cavanna asked the court to dismiss the proceeding on the ground that it was time-barred. They contended that Donato’s name had been removed from the preferred list in 1992 because of “her failure to apply for a vacant position” and her alleged failure to challenge, in a timely fashion, her removal from the preferred list. The Supreme Court agreed and dismissed Donato’s petition. But the Appellate Division reversed the lower court’s ruling and remanded the matter back to Supreme Court for further consideration.

The key factor: the Appellate Division found no evidence in the record that Donato’s name had been removed from the preferred list in 1992. Therefore, the court held, Donato had filed a timely challenge to the district’s refusal to appoint her to the position that became available in 1997. Donato’s claim “accrued in 1997 and not in 1992, [so] this proceeding is not time-barred.”

The court noted that the district had examined Donato’s preferred list status in 1994 during litigation involving a different vacancy. Examining the record of that case, the Appellate Division said the district had conceded that Donato “was preferentially eligible for reinstatement to her abolished position or a similar one.”

Here are some points to keep in mind regarding preferred lists:

1. Typically the most senior individual on the list may be “passed over” or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of “preferred lists” such as a “special military list.”)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example:

An individual is laid off from Position A and subsequently accepts a position “to a lower rank position” for which the preferred list was certified. The following year the employer reestablishes Position A. Assuming that the individual who was laid off from Position A is eligible for certification from the preferred list and that he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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