Eligibility for reinstatement from a preferred list to a “different” position
Davis v Mills, 285 A.D.2d 703, affirmed 98 N.Y.2d 120
As a general rule, a preferred list must be used to fill a vacancy for the same title, or a position found to be similar to, the position that gave rise to the creation of the preferred list in the first instance. Clearly the preferred list must be certified to fill vacancies having the same title. The determination of a “similar position” for the purposes of such certification is sometimes a less easy task.
School psychologist Maxine Davis was laid off by the Westport Central School District when the district abolished a school psychologist position. She claimed that she was entitled to be reinstated from the preferred list when the district decided to fill a newly created position of elementary counselor.
Davis argued that “because the majority of the duties that she performed as school psychologist consisted of the counseling and other related duties of the newly created elementary counselor position, the two positions are similar within the meaning of Education Law Section 2510.” Thus, she concluded, if the district wished to fill the newly created elementary counselor position, it was required to use the preferred list created as a result of her being laid off.
The Commissioner of Education disagreed and dismissed Davis' appeal after determining that the two positions were in different special subject tenure areas and required different certifications. The Appellate Division, Third Department, sustained the Commissioner's decision.
The court noted that although the abolished “school psychologist position apparently encompassed the duties of the newly created elementary counselor position, the record establishes that the school psychologist position included additional duties beyond those of the elementary counselor position” and which require “skills that were not necessary for the performance of the more limited duties of the elementary counselor position.”
In addition, said the court, the fact that some of the counseling-related duties of the school psychologist position became the duties of the elementary counselor position does not necessarily make the two positions similar.
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