Determining an educator’s seniority for the purposes of layoff and reinstatement

Determining an educator’s seniority for the purposes of layoff and reinstatement

Appeal of Debra Gordon from action of the Board of Education of the PotsdamCentral School District, et al, Decisions of the Commissioner of Education, Decision No. 16,582

Due to budgetary constraints, the Board of Education of the Potsdam Central School District [Board] found it necessary to abolish a reading teacher position* effective July 1, 2011. By letter dated May 26, 2011, the superintendent notified Debra Gordon that her employment would be discontinued effective July 1, 2011 and that she would be placed on a preferred eligible list for reappointment to a position in the reading tenure area.

Gordon challenged the Board’s decision excessing her based on its determination that she was the least senior reading teacher.

Gordon, a certified reading teacher, was appointed by the Board to a reading teacher position effective September 1, 2007. Necessary party Paulette Whalen, a certified reading teacher and teacher of the deaf and hearing impaired, was appointed by the Board as a teacher in both tenure areas effective September 1, 2006.

In May 2011 when the position of reading teacher was abolished, Gordon and Whalenwere the two least senior reading teachers. Gordon, contending that she was improperly terminated because she had accrued more seniority in the reading tenure area than Whalen, appealed the Board’s determination to the Commissioner of Education.

Gordon argued that The Board improperly credited Whalen with working 40% or more of her time in the reading tenure area during the 2006-2007 and 2007-2008 school years when Whalen was actually working in the tenure area of teacher of the deaf and hearing impaired. Gordon asked the Commissioner to direct her reinstatement to her former position with back salary and benefits.**

The Board, on the other hand, contended that Whalen had greater seniority than did Gordon based on her spending “at least 40% of her time working in the tenure area of reading during the 2006-2007 and 2007-2008 school years” and, in any event, Gordon’s appeal was untimely.

Here the issue to be resolved concerned when the statute of limitations began to run. Gordon argued that the 30-day period began to run from the date that another person commences service in the position at issue. The Board on the other hand, claimed that the period should be calculated from, at the latest, the effective date of Gordon’s termination.

The Commissioner decided that in order to provide clarity, a clear articulation of the rule to be applied in such cases was warranted and explained:

a. In cases in which the teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition of the position; and

b. Where the wrong alleged by the petitioning teacher is not that he or she should have been retained and another teacher having less seniority should have been excessed but rather that the appointment of another teacher from the preferred list was in violation of law, i.e., the reinstated teacher had less seniority than the petitioning teacher, such a claim would be timely if commenced within 30 days of the date on which the other teacher commenced service in a position to which the petitioner alleges he or she is entitled.***

However, as explained below, this was a distinction without a difference insofar as Gordon was concerned as the Commissioner determined that [a] Gordon was the less senior teacher insofar as her being laid off from her position rather than Whalen and [b] Gordon was the less senior teacher had she and Whalen both been laid off and Whalen appointed to an appropriate vacancy from the preferred list rather than she.

Addressing the merits of Gordon’s appeal, the Commissioner observed that Education Law §§2510(2) and 3013(2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 8 NYCRR 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

As used in Part 30 of the Rules of the Board of Regents, the term “substantial portion” means 40% or more of the total time spent by a professional educator in the performance of his or her duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

Thus, the principal issue in this appeal was whether or not Whalen spent 40% or more of her time performing duties in the reading tenure area during the 2006-2007 and 2007 - 2008 school years and Gordon had [1] the burden of demonstrating a clear legal right to the relief requested and [2] the burden of establishing the facts upon which she sought relief.

After considering the evidence presented by the parties in support of their respective positions, the Commissioner said as pertains to the 2006-2007 school year, he disagreed with The Board’s conclusion that Whalen’s time was spent primarily in the tenure area of reading, finding that for the 2006-2007 school year only 10% of Whalen’s time should have been credited to the reading tenure area.

As to the 2007-2008 school year, the Commissioner said that he although he did not agree with the Board’s finding that Whalen spent 100% of her time during the 2007-2008 school year in the reading tenure area, he did find that she spent at least 55% of her time in the reading tenure area and therefore gained a year of seniority for the 2007-2008 school year in the reading tenure area.

In view of the Commissioner’s determination that Whalen did not spend at least 40% of her time in the reading tenure area for the 2006-2007 school year, but did so for the 2007-2008 school year, the Commissioner ruled that Gordon and Whalen both had the same number of years of seniority in the reading tenure area.

Citing Matter of Schoenfeld, 98 AD2d 723, the Commissioner concluded that when full-time service is equal, the teachers’ respective appointment dates are to be used for determining seniority as the “tie-breaker.” The Commissioner further noted that in Appeal of Kulick, 34 Ed Dept Rep 613, Commissioner’s Decision No. 13,428, it was held that “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.’”

Whalen’s appointment date was effective September 1, 2006, while Gordon’s was September 1, 2007. Thus, concluded the Commissioner, as of July 1, 2011, the date the Board eliminated a reading teacher position, Gordon was the reading teacher with the least seniority.

The bottom line: Although the Commissioner found that The Board’s determination regarding the time spent by Whalen in the reading tenure area improper in part, she, in fact, was deemed to have greater seniority than Gordon.

The Commissioner then directed The Board to recalculate Whalen’s seniority rights in the reading and teacher of the deaf and hearing impaired tenure areas in accordance with his decision.

* The Commissioner noted that although both Gordon and The Board refer to the position at issue as that of a “reading teacher,” in accordance with §30-1.8 of the Rules of the Board of Regents this special subject tenure area is properly entitled “remedial reading.”

** In the event an employee is improperly laid off from his or her position the employer is required to reinstate the individual to his or her former position with back salary and benefits.

*** Finding that there was conflict in the past Commissioner’s decisions addressing these issues, the Commissioner concluded that “a teacher could not know with certainty whenthey must commence an appeal challenging the abolition of a position.” Under the circumstance, the Commissioner said that he would “excuse a delay in commencing an appeal more than 30 days after the effective date of the abolition of a position” and would excuse the delay in Gordon’s filing of her appeal “and any other similar appeal challenging an abolition of a position pursuant to Education Law §§2510 or 3013 that is pending before me on the date of this decision.”

The decision is posted on the Internet at:
 http://www.counsel.nysed.gov/Decisions/volume53/documents/d16582.pdf

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