March 28, 2019

Excessed educator claims back pay, benefits and pension credit based on the appointing authority's alleged failure to reinstate her from the preferred eligible list

The genesis of this appeal to the Commissioner of Education was a notice sent to petitioner [Appellant] that her elementary tenure area position would be abolished effective July 1, 2003 and that her name would be placed on a preferred eligible list. Appellant challenged a number of the actions taken by the appointing authority [Employer] in the course of processing her for reinstatement to a position in her tenure area. Essentially Appellant contended that the actions taken by Employer were inconsistent with her rights as an individual eligible to be reinstated to a position from a preferred eligible list.*

The issue  before the Commissioner concerned Appellant's assertion that Employer:

[1] unlawfully filled teaching vacancies by temporary appointment before recalling Appellant who was the most senior qualified teacher on the preferred eligible list; and

[2] her demand for back pay, benefits and pension credit to which she claimed she was entitled as a result of such alleged "unlawful appointments" and other actions by the Employer.

Employer, in rebuttal, contended that:

[a] It had acted in good faith;

[b] Appellant failed to meet her burden of demonstrating a clear right to the relief she sought in that she did not, or could not, demonstrate that she performed the duties one of the positions sought while serving in her former position within the meaning of the relevant law and regulations;

[c] Appellant's petition failed to state a cause of action;

[d] Appellant's petition was untimely and moot;

[e] Appellant did not attempt, or failed, to mitigate her damages; and

[f] Appellant failed to serve certain necessary parties with a notice of her appeal and copies of the complaint.

After addressing a number of the procedural concerns raised by the parties involving timeliness, service and verification of certain filings, the Commissioner ruled that they lacked merit, as did Employer's contention that Applicant had not named and served certain individuals as "necessary parties".

With respect to Employer's contention concerning necessary parties, the Commissioner explained that "[a] party whose rights would be adversely affected by a determination of an appeal in favor of a Appellant is a necessary party and must be joined as such." Here, however, the Commissioner noted that the record indicated that both of the individuals Employer claimed were necessary parties had resigned from their respective positions with the Employer in 2008 and, therefore, would not be adversely affected by a decision in this appeal.  Further, opined the Commissioner, as Appellant is only seeking back pay, benefits and pension credit and not reinstatement to her former position, Appellant had joined all necessary parties.

The Commissioner also rejected Employer's argument that the appeal must be dismissed as moot because Appellant had retired in 2010.  Noting that an employee’s preferred eligible list recall rights do not survive his or her formal retirement unless it can be demonstrated that the individual's decision to retire was involuntary or made under duress the Commissioner found that the record showed Appellant did not claim that her retirement was involuntary or made under duress. Further, said the Commissioner, Appellant is not claiming a recall right to a vacancy that occurred or was created after her retirement, but rather she is claiming a right to back pay, benefits and pension credit based on Employer's alleged failure to reinstate her from the preferred eligible list her to a position in the elementary tenure area prior to her retirement that was the subject of pending litigation at the time of her retirement. 

Accordingly, the Commissioner, in consideration of an earlier court decision involving the same parties, that determined that "the Commissioner has primary jurisdiction over the issue of similarity of positions," declined to dismiss the appeal as moot.

Turning to the merits of the appeal, the Commissioner indicated that Appellant’s recall rights, if any, are to appointment to vacancies in a position similar to the position she formerly held.  On this record the Commissioner found that Employer had offered Appellant the positions that were in compliance with the recall requirements set out in Education Law §3013 and concluded that Appellant’s claim that she was justified in refusing to accept or ignoring offers of reinstatement to a teacher of pre-school position was meritless. 

The language that Appellant found "unacceptably ambiguous" in Employer' letter advising her that she was being reinstated from the preferred eligible list stated "[p]lease be advised, since you are on the preferred eligibility list, you may have rights to this position.  However, we do have to recall in order of seniority."

Clearly, said the Commissioner, the letter extended an offer of appointment to the position was conditioned only on Appellant having the greatest length of service of the persons on the appropriate preferred eligible list, a statutory requirements set out in Education Law §3013, and the record indicated that Appellant did, in fact, have the greatest seniority of the teachers on the preferred eligible list at issue.**

Noting that Employer's attorney had clearly and unambiguously confirmed in writing that Appellant would be appointed if she accepted the position, the Commissioner ruled that under the circumstances, Appellant, by failing to accept the position, "rejected Employer’s unconditional offer of appointment and could not claim a right to reinstatement to the ... position." As a result, Appellant could not assert a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

Subsequently Appellate failed to respond to a second, similar letter from Employer's director of human resources requesting that she either accept or decline yet another position.  As was the case with the earlier event, the Commissioner found that Appellant, by failing to accept the position, rejected Employer's unconditional offer of appointment and could not claim a right to reinstatement to that position nor a right to back pay, benefits and pension benefits based on Employer's failure to appoint her to that position.

However, Appellant also claimed a right to back pay, benefits and pension credit based on Employer's failure to reinstate her to a third position in the "family literacy educator" tenure area for the 2006-2007 school year. As there was nothing in the record indicating that Employer offered to appoint Appellant to any of those positions in that tenure area from the preferred eligible list, Appellant’s right to relief depends on whether the position of family literacy educator was similar to that of Appellant’s former position.

In consideration of evidence in the record addressing the duties of these positions, the Commissioner concluded that Appellant failed to meet her burden of proving that 50 percent or more of the duties of the two family literacy educator positions available in the 2006-2007 school year were similar to the duties of her former position in the tenure area of "teacher of gifted and talented education."

The bottom line: the  Commissioner dismissed the instant appeal in its entirety.

* Employer's human resources director's sent Appellant a letter notifying her that a vacant position existed within the Employer and asked her to accept or decline the position.  Appellant responded, asserting that the letter was too ambiguous and was not a final determination that she would be appointed to the teacher position and asked for "a valid offer of re-employment to enable her to make an informed decision." Employer's attorney wrote to Appellant's attorney that if Applicant either signed the settlement agreement or indicated acceptance of the position in response to the recall letter, she would be appointed to the position. Appellant did not accept or decline the pre-school teacher position and the position was filled by another individual. Employer later sent Appellant an unconditional employment offer and requested that that she indicate her willingness to accept or reject this position by a specified date.  Appellant did not respond to the notification and, again, the position was filled by another individual. Ultimately Employer removed Appellant from the preferred eligibility list after seven years had passed from the date on which Appellant’s position had been abolished [see §3013.3]. 

** It should be noted that a preferred list for a particular title or position is a "moving target" as names are added to it to reflect the reinstatement rights of individuals excessed as the result of subsequent layoffs. Preferred eligible lists are revised to reflect "seniority rank order" of individuals added to, or deleted from, the list over time.

The decision is posted on the Internet at:


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New York Public Personnel Law Blog Editor 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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