ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

July 20, 2017

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement


Considering breaks in service in determining seniority for the purposes of layoff and reinstatement
2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:

_______________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
_______________

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
New York Public Personnel Law. Email: publications@nycap.rr.com