December 14, 2015

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position
Matter of Renee Eschmann and the Board of Education of the Tuckahoe Union Free School District, Decisions of the Commissioner of Education, Decision #16,853

In this decision Commissioner of Education MaryEllen Elia addresses a number of significant procedural issues concerning the filing an appeal to the Commissioner and substantive issues with respect to layoff and the use of preferred lists to fill a vacancy.

The genesis of Commissioner Elia’s ruling was the appeal to the Commissioner submitted by Renee Eschmann challenging the action of the Tuckahoe Union Free School District's Board of Education appointing Sabrina Peduto to the position of school psychologist. 

Eschmann, a licensed psychologist and holding a permanent certification in school psychology, was granted tenure in the school psychologist special subject tenure area by Tuckahoe in 2002.  Effective June 30, 2006, Tuckahoe abolished her position and Eschmann’s name was placed on the preferred eligibility list [PEL] for the school psychologist special subject tenure area.

According to the record, in July 2013 Eschmann learned that Tuckahoe had posted a vacancy for a full-time school psychologist position for the 2012-2013 school year and had then appointed  Peduto to the vacancy in February 2013. Eschmann then wrote to Tuckahoe claiming “entitlement to the school psychologist position and requested reinstatement to her former position.” Tuckahoe responded, advising Eschmann that she was not entitled to the position[1]  as it was not more than 50 percent similar to her former position and [2] that, in any event, the position was filled in August 2013, at which time Eschmann’s name was no longer on the PEL.* 

In her appeal to the Commissioner Eschmann contended that the duties of her former position are substantially similar to the duties of the school psychologist position and, therefore, pursuant to Education Law §2510, she was entitled to be appointed to that position from the PEL. She asked that the Commissioner issue an order directing Tuckahoe to appoint her to the school psychologist position as of the time it was filled in February 2013, "with back pay and benefits as well as seniority credit, retirement service credit and any other emoluments of employment" retroactive to February 2013.

In rebuttal, Tuckahoe generally denied that Eschmann was entitled the appointment to the position of school psychologist from the PEL, contending that the position was not similar to Eschmann’s former position because it contained duties relating to the committee on special education (“CSE”) and the committee on preschool special education (“CPSE”).  Tuckahoe also asserted three affirmative defenses: improper service, failure to state a claim upon which relief may be granted, and that the petition is untimely, arguing that for “all of the above reasons” Eschmann’s appeal must be dismissed.

The Commissioner initially addressed the following procedural issues:

Timeliness of Eschmann appeal to the Commissioner.

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. Where, however, a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" and in earlier decisions Commissioners have allowed an appeal to the Commissioner within 30 days after such dismissal.**Noting that Eschmann’s appeal to the Commissioner was commenced within 30 days after the Supreme Court’s dismissal of the Article 78 proceeding, Commissioner Elia ruled that Eschmann’s appeal to the Commissioner was timely commenced.

Submitting additional affidavits, exhibits and other supporting papers to the Commissioner. 

Commissioner Elia said that although the submission of additional evidence is permitted, a party may not add new claims against a respondent for which notice has not been provided. Further, the Commissioner said that she would “not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal.”

Submission of additional pleading.

Parties cannot agree among themselves to the submission of additional pleadings that do not meet the requirements of §275.3(b) of the Commissioner's regulations. Further, the regulations allow parties to submit additional pleadings only with the prior permission of the Commissioner.

Service of an appeal upon the parties.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Eschmann's petition was served on Victor Karlsson, a school business official, who was not authorized to accept service on behalf of Tuckahoe. However an affidavit from the process server indicating that he believed Karlsson to be an authorized agent and that Karlsson indicated he was authorized to accept service. In contrast, Karlsson’s affidavit does not indicate whether or not he stated that he was not authorized to accept service, while the affidavit of petitioner’s process server states that Karlsson affirmatively indicated he was authorized to accept service. As the burden was on Tuckahoe to establish its affirmative defense, the Commissioner concluded that “on this record” Tuckahoe failed to meet its burden and declined to dismiss Eschmann’s appeal for failure to properly serve Tuckahoe under these circumstances.

Joining a necessary party

Commissioner Elia also decline to dismiss Eschmann’s appeal “for failure to join a necessary party,” Dr. Randi Newman, noting that her Office of Counsel had advised the all the parties that Eschmann’s earlier request to join Dr. Newman as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include Dr. Newman in the original petition is not a basis for dismissal of this appeal.

Turning to the merits of Eschmann’s appeal, the Commissioner ruled that:

Reinstatement rights from a preferred list.

With respect to reinstatement rights from a preferred list, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position.  The test to determine whether the two positions are "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the Eschmann in her former position and she has the burden of proving that a majority of the duties of the new position are similar to those of her former position. Noting that the standard of what is similar is flexible and is not to be applied mechanically, Commissioner Elia said that “On this record, I find that [Eschmann] has met her burden of proving that the two positions are similar.” 

Similarity of positions.

Explaining that in assessing the similarity of positions the law does not require a comparison of job titles, but rather an analysis of job responsibilities, the Commissioner said that Tuckahoe  offered no evidence of the duties performed by Peduto in the 2013-2014 school year beyond those of a CSE or CPSE member. As the record shows that Eschmann served as a member of the CSE and that she performed duties similar to the duties of members of the CPSE and the Section 504 committee, the Commissioner said that absent any other evidence, she found the duties Peduto performed following her appointment were indistinguishable from those of a CSE member and, as such, are similar to those performed by Eschmann in her former position. 

The bottom line: Commissioner Elia sustained Eschmann’s appeal, presumably with back pay and benefits effective February, 2013.

* Both §§2510.3(a) and 3013.3(a) provide that the name of  an individual shall remain on the relevant preferred list for seven years from the date on which his or her position was abolished. Eschmann’s position was abolished June 30, 2006; Peduto was appointed to the contested vacancy in February 2013.

** Prior to filling her appeal to the Commissioner Eschmann had commenced a timely Article 78 proceeding in Westchester County Supreme Court seeking an order and judgment for reinstatement to her former position. Her petition was dismissed under the doctrine of primary jurisdiction, i.e., the deferral by a court of its power to hear a case pending administrative review of the matter by the appropriate administrative tribunal having jurisdiction, whereupon Eschmann submitted her appeal to the Commissioner of Education.

The decision is posted on the Internet at:


The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on



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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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