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:

http://www.counsel.nysed.gov/Decisions/volume58/d17601

The continuing violation exception when filing of a complaint alleging a violation of New York State's Human Rights Law is not triggered by a single event

Petitioner appealed Supreme Court's granting the New York State Office for People with Developmental Disabilities' [OPDM] pre-answer motion to dismiss the Petitioner's complaint alleging unlawful discrimination in violation of New York State's Human Rights Law based on OPDM's rejection of her application for employment as "time-barred".

The Appellate Division affirmed the lower court's ruling.

Noting that OPDM had the initial burden of establishing, prima facie, that Petitioner's cause of action was untimely filed, the Appellate Division said that OPDM had established that the last discriminatory act set forth in the Petitioner's complaint occurred on August 30, 2013. Accordingly Petitioner's cause of action accrued, and the three-year statute of limitations for the Human Rights Law began to run, on that date. However, Plaintiff did not file her complaint until March 10, 2017, more than six months after the statute of limitations period had expired.

OPDM, having made a prima facie showing that Petitioner action was untimely, shifted the burden of going forward to Petitioner to establish that some exception to the limitations period applied in her situation that would allow her lawsuit to go forward. Petitioner attempted to do so by alleging that the continuing violation exception was applicable in her situation and thus her action had been timely filed.

The Appellate Division disagreed, concluding that Petitioner had failed to meet her burden of proof. Assuming, but not conceding, that the denial of Petitioner's application for employment constituted an act of unlawful discrimination, this constituted but a "single act" rather than evidence of "an ongoing policy of discrimination." 

The court explained that a single act of unlawful discrimination does not trigger the continuing violation exception and thus the running of the statute of limitations had not been tolled and had expired "six or more months" prior to the date on which Petitioner had filed her complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01887.htm

Judicial review of student disciplinary action taken by a private college or university is limited to whether the institution substantially complied with its own rules

A New York Supreme Court denied a petition filed by a student [Student] attending a private institution of higher education [Institution]. Student had asked the court to annul the Institution's decision affirming a hearing committee's suspending the Student for one semester based on its finding that Student had engaged in academic dishonesty -- forging an examination booklet. Student appealed the Supreme Court's decision, arguing that the disciplinary action taken by the Institution violated his right to "due process."*

The Appellate Division commenced its review of Student's appeal by observing that Student's "due process" challenge was misplaced. Citing Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, among other decisions, the court explained that a student at a private university is not afforded the "full panoply" of due process rights that might be available to a student at a public institution of higher education.

Accordingly, in the absence of any "State involvement," the only issue for review by the court is whether the institution substantially complied with [1] its own rules; [2]  was made in accordance with its written disciplinary policy; and [3] was rationally based and not arbitrary and capricious.

Turning to the Institution's procedures, the Appellate Division observed that Student "had ample opportunity at the hearing to defend his conduct and explain his actions." However, said the court, the Institution's rejection of Student's explanation as not credible was not irrational nor was the denial of Student's internal appeal irrational. The Institutions' written policy provided for limited grounds for appeal, "none of which availed Student."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division opined that there was nothing shocking or disproportionate about the one-semester suspension imposed on Student.

Addressing another issue, Student's allegation that the Institution had defamed him, the Appellate Division held that Supreme Court's dismissal of his defamation claim was correct because:

1. The subject statements were true;

2. The statements had not been published to any persons outside the university; and

3. The Institution's statements were protected by a qualified common interest privilege.

As to Student's allegations of malice, the Appellate Division said that this amounted to little more than "mere surmise and conjecture" and therefore was insufficient to overcome the Institution's qualified common interest privilege.

* Another issue addressed in this action involve Student's allegation that he had been defamed by the disciplinary action taken against him by Institution.

** The so-called "Pell Doctrine" defines a reasonable disciplinary penalty as one that is "neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01720.htm

Upon permanent appointment to a position in the classified service the officer or employee is typically required to serve a specified minimum period of probation, but not to exceed a specified maximum period of probation.

Upon permanent appointment to a position in the classified service the officer or employee is typically set in terms of his or her serving  [1] a specified minimum period of probation and [2] a specified maximum period of probation.

The appointing authorities may be given discretion to waive a limited period of a probationary officer's or employee's absence during his or her probationary period pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the officer or the employee is extended by the number of workdays of such absences are not counted as "time served" during the individual's probationary period.”* As the Court of Appeals held in Boyle v Koch, 68 NY2d 60, an employee's probationary period may be extended in the event the employee is given a “light duty” or some other alternate assignment while serving as a probationer. 

In this action the petitioner [Probationer] was permanently appointed to his position effective May 16, 2013 and his probationary period was set at not less than two-month and not more than two-years. When Probationer was subsequently terminated from his position effective March 2, 2016, he initiated an Article 78 action contending that his probationary period had ended prior to the termination of his employment and was a tenured employee entitled to notice and hearing as a condition precedent to his termination from his position. In effect, Probationer argued that he had attained tenure by estoppel.

Citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, the Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all" after completing his or her minimum period of probation and before the end of his or her maximum period of probation without a hearing and without a statement of reasons for his or her termination in the absence of evidence that the termination was "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Probationer, however, contended that he had attained tenure** in his position upon his being continued in service after he had completed the minimum two-month period of his probationary period.

The Appellate Division disagreed, noting that the two-month minimum period of probation was simply the beginning portion of the two-year probationary term during which two-month period he could be terminated only upon notice and hearing.*** Further, opined the court, the appointing authority is not required to advise a probationer that his or her probationary term of service is to be continued after the completion of his or her initial two-month period of probationary service.

The Appellate Division said it agreed with the Supreme Court's determination that the termination of Probationer's employment occurred while he was still a probationary employee in view of the fact that his probationary period had been extended due to his absences during his probationary period as a period of probationary employment is measured by the number of days a probationer is actually working at the job and "may be extended by the number of days that the probationary employee does not perform the duties of the position."

In addition, the City maintained that Probationer had not acquired tenure in the position by reason of his having been continued in service after he had completed his maximum period of probation. Rather the Probationer was terminated before having completing his maximum period of probation as his probationary term had been extended [1] by the number of days that he was required to work but was absent; and [2]  by his agreeing to extension his probationary period  based upon his attendance, punctuality, and disciplinary records.

Finding that Probationer had failed to demonstrate that the termination of his employment during his probationary period was made in bad faith or for a constitutionally impermissible or an illegal purpose or in violation of statutory or decisional law, the Appellate Division sustained the Supreme Court's ruling denying Probationer's petition and dismissing the proceeding.

* See, for example, 4 NYCRR 4.5(g), “Absence during probationary term”.

** The decision implies that a probationary appointment does not become permanent until the completion of the minimum period of probation. As a general rule, an individual is initially appointed to the position as "permanent" effective on the date of his or her appointment but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

*** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_02093.htm

Religious Accommodations in the Workplace

   Links to material posted on the Internet highlighted in COLOR

The New York State Division of Human Rights announced a statewide public education campaign to remind New Yorkers about their legal rights and protections regarding religious accommodation in the workplace. The Division has partnered with local chambers of commerce to make employers aware of their legal obligations and responsibilities in providing religious accommodations to applicants and employees. The Division has also created a brochurefor workers, informing them of the ways in which New York State law allows for religious accommodation and protection. Through these efforts, the Division seeks to reduce the potential for religious discrimination, harassment and retaliation in the workplace.

“With the sacred holidays of Easter, Passover and Ramadan just around the corner, it’s important that New Yorkers of all faiths know that they do not have to choose between their faith and a paycheck,” Division of Human Rights Commissioner Helen Diane Foster said. “Our great state is made even greater by the presence and contributions of all of our citizens, regardless of their religion. The Division is committed to protecting the rights of all those who seek to balance work responsibilities while also faithfully observing their religious tradition.” 

This public education campaign kicks off with the Utica Chamber of Commerce, while additional sessions will be held in Buffalo, Ithaca, Syracuse, Rochester and Westchesterthroughout April and May. This effort advances the Governor’s Justice Agenda and his commitment to protecting the rights and freedoms of all New Yorkers.