In this appeal to the Commissioner of Education the plaintiff [Petitioner] alleged the School District [District] failed to offer her a position in accordance with her preferred list rights to reinstatement by the District following her layoff.
Initially Petitioner was second on the preferred list list. Subsequently the District appointed another individual, not the first individual on the preferred list, as a substitute and, thereafter, another educator not the first name on the preferredlist as a leave replacement teacher.
The Teachers’ Association [Association] filed a grievance alleging that the District violated the terms of their collective bargaining agreement “when it failed to notify teachers whose names [we]re on the Preferred Eligibility List [PEL] for K-6 certification of [vacancies] within their certification area during the school year 2019-20.” The District stated it was committed “to adhere to all legal requirements regarding recalling teachers from the PEL, disclaimed any wrongdoing and ultimately a representative of the Association submitted a letter memorializing Association’s "intent to withdraw its grievance with prejudice." Petitioner appealed.
Claiming that she was the most senior individual on the PEL list at time other individuals were employed by the District, Petitioner contended she should have been recalled to the position. As redress, Petitioner sought an “order requiring the District to pay her the wages she would have received” from February to May 2020 together with $2,500 per month during this time period she said represented "her out-of-pocket costs for health insurance."
The District, in addition to arguing that Petitioner's appeal  must be dismissed as untimely and  for failure to join a necessary party," denied that Petitioner was entitled to recall from the PEL prior to June 2020, or that she is entitled to any of the relief she demanded.
Addressing a number of procedural issues, the Commissioner dismissed Petitioner's appeal as untimely, explaining that an appeal 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," citing 8 NYCRR 275.16.
The Commissioner opined that where the alleged wrong is that another individual has been appointed to a position in violation of the petitioner’s eligible list rights, the petitioner becomes aggrieved "on the date that such other person commences service in the position at issue."
However, noted the Commissioner, "under certain circumstances, an appeal concerning PEL rights may be commenced within 30 days of discovery of an alleged wrongdoing." In this instance Petitioner admitted that she learned of another educator's appointment to the position May 23, 2020.
In the words of the Commissioner, "Assuming without deciding that the 30-day time limitation ran from [May 23, 2020], the calculation most favorable to [Petitioner, Petitioner’s] service of the petition on September 5, 2020 was 105 days thereafter."
Petitioner claimed that the delay should be excused because the instant matter was the subject of a pending grievance. Rejecting this argument, the Commissioner said "the existence of a union grievance does not affect the time in which to bring an appeal." As Petitioner failed "to set forth any good cause for such delay in the petition," the Commissioner ruled that the appeal must be dismissed as untimely.*
Finally, the Commissioner pointed out that were Petitioner's appeal timely, it would be dismissed for failure to join a necessary party, another teacher standing higher on the District's PEL. The fact that the educator standing higher on the PEL had taken a position with another school district and had a contract for the school year, opined the Commissioner, did not "in and of itself, did not extinguish [the teacher's] preferred eligibility rights" with the District and thus the educator employed by the other school district remained a "necessary party" insofar as resolving Petitioner's appeal was concerned.
* Typically seeking an administrative remedy or reconsideration of a final administrative determination does not toll the running of a controlling statute of limitations set by law.
Click HERE to access the Commissioner's decision in this appeal.