Decision No. 14,648

(October 16, 2001)

MILLS, Commissioner.--Petitioner appeals the refusal of the Eastern Suffolk Board of Cooperative Educational Services ("BOCES" or "respondent") to hire her for a home-based teacher liaison position while she was on a preferred eligible list. The appeal must be dismissed.

On February 1, 1988, respondent appointed petitioner, a certified nursery through grade six and special education teacher, as a pre-kindergarten ("Pre-K") teacher. Petitioner received tenure on February 1, 1990 and taught continuously until respondent abolished her position on August 31, 1997, whereupon she was placed on a preferred eligible list. Respondent states that in June 1999, it created the new position of "Teacher Liaison in the Parent Child Home Program" ("liaison"). In response to a newspaper advertisement for the liaison position, petitioner submitted her resume on September 11, 1999. By letter dated September 21, 1999, respondent rejected petitioner for that position.

On or about November 18, 1999, petitioner served respondent with a Notice of Claim pursuant to Education Law "3813. On January 19, 2000, petitioner commenced a hybrid Article 78 proceeding and civil action in Supreme Court, Suffolk County, seeking relief under 42 U.S.C. "1983 and Education Law ""2510 and 3013, and discovery under CPLR "408. Petitioner claimed she was deprived of her due process rights because, from 1997 to 2000, respondent deliberately failed to inform her of vacancies for positions similar to her abolished position as a Pre-K teacher. She also claimed that respondent violated Education Law ""2510 and 3013 by failing to appoint or reinstate her to a similar position. By Order and Judgment dated April 11, 2000, the Supreme Court dismissed petitioner's action, citing the primary jurisdiction and expertise of the Commissioner. On May 2, 2000, petitioner appealed the Court's April 11, 2000 Order and Judgment and sought reargument. Subsequently, petitioner withdrew her appeal to the Appellate Division, Second Department, on October 18, 2000. Petitioner initiated the instant appeal on May 9, 2000. Petitioner's request for interim relief was withdrawn on October 17, 2000.

Petitioner asserts that she is entitled to the liaison position because its duties are similar to duties she performed while employed by respondent as a Pre-K teacher. She also claims, as she did in the dismissed Supreme Court proceeding, that for the three school years from 1997 to 2000, respondent deliberately failed to inform her of vacancies in positions similar to the one from which she had been excessed, thus depriving her of her rights under Education Law ""2510 and 3013. Petitioner contends that respondent appointed other teachers to vacancies or similar positions to which she was entitled, and thus respondent's actions were arbitrary, capricious and illegal.

Respondent asserts that the appeal is untimely; petitioner is precluded from seeking relief from the Commissioner since she elected her remedy to seek relief in Supreme Court; petitioner has failed to meet her burden of proving that the liaison position is similar to the abolished Pre-K teacher position and thus is not entitled to appointment to that position; and respondent's actions were not arbitrary and capricious because the liaison position is not similar to petitioner's former position.

I will first address the procedural issue of timeliness. An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent asserts that the petition is untimely because it was not filed within 30 days of the creation of the new liaison position in June 1999 or within 30 days of the September 21, 1999 notification to petitioner that she was not selected for the position.

An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of R.W., 40 Ed Dept Rep ___, Decision No. 14,580; Appeal of Goltz, 40 id. ___, Decision No. 14,571; Appeal of Kelly, 35 id. 235, Decision No. 13,528). In the instant case, the Supreme Court dismissed petitioner's complaint on April 11, 2000, and petitioner commenced this appeal on May 2, 2000. Accordingly, since this appeal was filed within 30 days of the Supreme Court's dismissal, I will not dismiss as untimely petitioner's claim regarding the liaison position. However, to the extent the petition includes allegations regarding vague, unspecified and unsubstantiated vacant positions from 1997 through 1999, those claims must be dismissed as untimely.

Although respondent did not raise this issue, the appeal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Wheeler, 40 Ed Dept Rep ___, Decision No. 14,581; Appeal of Holliday, 40 id. ___, Decision No. 14,549; Appeal of Heller, 38 id. 335, Decision No. 14,048). Such individual must be clearly named as a respondent in the caption of the petition and served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense (Appeal of Heller, supra). Since a decision in favor of petitioner would clearly affect the incumbent in the liaison position, that person is a necessary party to this proceeding. As such, petitioner was required to serve him or her with a copy of the notice of petition and petition (8 NYCRR "275.8; Appeal of Heller, supra). Her failure to do so requires dismissal of this appeal.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits. Education Law ' 2510(3) governs the rights of a former employee to re-employment. Paragraph (a) of that subdivision provides, in pertinent part:

Thus, petitioner is entitled to appointment to a newly created position only if the new position is similar to that of her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028). The test of whether the two positions are in fact "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in her former position (Greenspan, supra; Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Appeal of Elmendorf, 36 id. 308, Decision No. 13,733). Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.; Appeal of Schwarz, 28 id. 101, Decision No. 12,045; Appeal of Gworek, 21 id. 501, Decision No. 10,769).

Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered (Appeal of Jordan, supra). However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Heath, supra; Appeal of Langton, 28 Ed Dept Rep 146, Decision No. 12,060; Matter of Elkins, 14 id. 193, Decision No. 8,934). In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Kelly v. Ambach, 83 AD2d 733; Appeal of Heath, supra; Appeal of Schwarz, supra).

In this case, there is no dispute that the teacher position and liaison position are in the same tenure area. In comparing the two positions, I first reviewed the respective job descriptions. Both positions require New York State teaching certification. In addition, the liaison position specified "early childhood experience preferred." The Pre-K teacher was required, among other things, to teach in a classroom setting, involve parents through visits and conferences and refer specific needs to ancillary personnel when needed. Most of the 16 enumerated duties describe responsibilities related to running a classroom. In contrast, the liaison position duties include identifying appropriate families for the Parent Child Home Program, coordinating and setting up home visits by community service providers with those families, providing direct service delivery to five families, monitoring and evaluating each family and the service providers, acting as liaison between the Program and the host school, and processing reports and requests.

The parties disagree in their own, subjective descriptions of the two positions. Petitioner contends that the 9" years she taught in the BOCES program, in addition to six prior years of early childhood teaching, more than qualify her for the liaison position. She asserts that each job involves early childhood education, working with at-risk families and focus on parent education and support, and that the duties of the liaison position correspond to duties she actually performed as a Pre-K teacher. Petitioner maintains that she processed numerous reports, served as liaison with the children's home school districts and with service providers to the children's families, coordinated activities with the host school, made home visits, fostered home-school community relationships, recruited at-risk children and maintained a safe school environment in the classroom.

In support of respondent's contention that the two positions are not more than 50% similar, Patricia A. Wall, respondent's Executive Director of Personnel, described each job. According to Ms. Wall, the majority of the Pre-K teacher's duties involved teaching children approximately 4 years old, in a classroom setting, and being responsible for the overall learning environment. While the teacher met with parents and referred children to other services when necessary, those activities were not the majority of the work assignment. In contrast, Ms. Wall states that the liaison position is based in the homes of participating families, involves early intervention for infants 18 months to 4 years old, and requires strong interpersonal skills in building relationships with the participating families, community services, health services and other referring agencies and organizations. The liaison builds relationships with community service professionals in order to obtain referral for the early intervention of at-risk infants, evaluates family relationships to best coordinate home visits, trains home visitors, and makes home visits to teach parents.

After comparing the duties delineated in each job description, I find that petitioner has not met her burden of proving that the duties of her former position as a Pre-K teacher are more than 50% similar to the liaison position. Nor do I find that petitioner's subjective and unsubstantiated description of the duties she alleges that she performed, as compared to those enumerated in the job description, are more than 50% similar to the liaison position. Therefore, I must conclude that the two positions are not similar within the meaning of Education Law ""2510 and 3013 and that petitioner is not entitled, as a matter of law, to the newly created liaison position.

THE APPEAL IS DISMISSED.

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