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Decision No. 14,895

Appeal of MARIA LAMB from action of the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County and Sandy Lambert regarding seniority.

 

Decision No. 14,895  

(June 24, 2003) 

James R. Sandner, attorney for petitioner, Claude I. Hersh, Esq., of counsel 

Ingerman Smith, L.L.P., attorneys for respondents, Warren H. Richmond, Esq., of counsel  

MILLS, Commissioner.--Petitioner appeals the calculation of her seniority status by the Board of Cooperative Educational Services ("BOCES") of the Second Supervisory District of Suffolk County ("respondent").  The appeal must be sustained.

Respondent first hired petitioner on February 10, 1984 as a part-time teaching assistant.  On May 14, 1984, respondent granted petitioner a three-year probationary appointment as a full-time teaching assistant.  On November 19, 1984, petitioner took a leave of absence from that position to become a full-time regular substitute. Petitioner states, and respondent does not dispute, that subsequent to her initial employment as a teaching assistant, she always worked in the tenure area of English as a Second Language ("ESL").  She continued as a full-time regular substitute until May 10, 1985 when she began a childcare leave of absence that extended until May 25, 1987.  On May 26, 1987, petitioner returned as a part-time teacher.  She continued as a part-time teacher through the end of the 1990-91 school year. 

On September 1, 1991, pursuant to Education Law "3013(2), respondent terminated petitioner"s services due to an abolition of teaching positions.  On September 30, 1991, respondent recalled petitioner as a part-time teacher.  She continued as a part-time teacher until September 1, 1993, when respondent again terminated her services due to an abolition of teaching positions.  Respondent recalled petitioner again as a part-time teacher on October 4, 1993, and she continued in that capacity until October 1, 1994, when respondent granted her a three-year probationary appointment in the ESL tenure area.

Petitioner successfully completed her probation and respondent granted her tenure on September 30, 1997.  She continued to work as a full-time tenured ESL teacher until August 31, 2000, when respondent terminated her services due to an abolition of teaching positions.  On the same date, respondent also terminated the services of respondent Sandy Lambert ("Lambert"), who was also a tenured ESL teacher.  On September 1, 2000, respondent recalled Lambert, effectively rescinding Lambert"s termination.  On September 11, 2000, respondent recalled petitioner to a part-time position and petitioner commenced this appeal.  The parties" attempts to reach a settlement were unsuccessful.  Petitioner eventually returned to a full-time position with respondent, from which she resigned at the end of the 2000-2001 school year.

At the time of their respective terminations on August 31, 2000, respondent calculated Lambert"s seniority as 6 years, 111 days, and petitioner"s seniority as 6 years, 65 days.  Petitioner does not dispute the calculation of Lambert"s seniority, but argues that respondent improperly denied her credit for her full-time regular substitute service from November 19, 1984 to May 10, 1985.  Petitioner asserts that respondent should have credited her with an additional 115 days of seniority for a total of 6 years, 180 days.  Petitioner contends that she had accrued greater seniority than Lambert as of August 31, 2000 and that she should not have been excessed at all or, if both she and Lambert were excessed, petitioner should have been recalled first.

Respondent argues that petitioner is not entitled to additional seniority credit for her full-time regular substitute service because she was not continuously employed by respondent prior to her probationary appointment.  Petitioner was terminated and recalled twice between the end of her substitute service and her probationary appointment.  Respondent contends, therefore, that petitioner was properly excessed.

Education Law "3013, governing the abolition of positions, applies to respondent BOCES.  Section 3013(2) provides:

Whenever a trustee, board of trustee [sic], board of education or board of cooperative educational services 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. (Similar provisions are found in Education Law ""2510[2] and 2585[3]).

It is well settled that computation of a teacher"s seniority includes full-time regular substitute service rendered immediately prior to the teacher"s probationary appointment (Matter of Ducey, 65 NY St Dept Rep 65; Matter of Crandall and Toth, 20 Ed Dept Rep 16, Decision No. 10,294).  It is also well settled that full-time regular substitute service counts for seniority purposes even when it did not immediately precede the teacher"s probationary appointment, when the teacher performed part-time services for the district in the interim (Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678; Kransdorf v. Bd. of Educ. Northport-East Northport UFSD, 81 NY2d 871). 

The question presented here is whether the two instances in which petitioner was terminated and then recalled constitute breaks in service that preclude counting her prior service as a full-time substitute toward her seniority credit.  (Both parties agree that the approved childcare leave should not be included in the seniority computation and is not considered a break in service).  In Kransdorf, supra, the Court quoted the Commissioner"s statement in Carey:

Teachers lose their seniority rights when they sever service with the school district [citing Matter of Ducey, supra].  A teacher whose full-time service is interrupted by part-time service in the same district, however, does not lose the right to claim such prior full-time service for purposes of seniority. (Emphasis added.)

The Court in Kransdorf also noted the Commissioner"s reliance on "30.1(f) of the Commissioner"s Regulations, which defines seniority as:

Length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall, during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator. (Emphasis added.)

I find that for seniority purposes, it is reasonable to distinguish between interrupted service and severed service.  For example, it is clear that when a teacher retires or resigns, the teacher affirmatively severs his or her service with the district and no longer has recall rights pursuant to Education Law ""2510 or 3013 (Appeal of Morehouse, 37 Ed Dept Rep 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; aff'd 268 AD2d 767; lv to appeal den 95 NY2d 751).  In contrast, when a teacher is involuntarily excessed, Education Law "3013 specifically provides a mandatory rehiring preference for that teacher by his or her placement on a preferred eligible list.   In the first instance, the teacher has acted to sever his or her service, whereas, in the latter, service has been involuntarily interrupted in contemplation of future reemployment.  Such interruption is not dissimilar to the circumstance where full-time service prior to a probationary appointment is interrupted by part-time service. 

Accordingly, I find that the brief periods of time when petitioner was excessed are not equivalent to a decision on her part to sever her service with respondent.  Therefore, petitioner"s seniority computation should have included the 115 days of full-time substitute service she performed from November 19, 1984 to May 10, 1985. 

In light of this disposition, I need not address the parties" remaining contentions.   

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED. 

IT IS ORDERED that the Board of Cooperative Education Services of the Second Supervisory District of Suffolk County re-calculate petitioner"s seniority credit to include her service as a full-time regular substitute teacher from November 19, 1984 to May 10, 1985; and  

IT IS FURTHER ORDERED that respondent board pay petitioner the back salary and benefits for the 2000-2001 school year that she would have earned as a full-time ESL teacher as of September 1, 2000; and 

IT IS FURTHER ORDERED that the back salary and benefits ordered to be paid under the previous paragraph be proportionately reduced by: (a) the salary and benefits paid by respondent board to petitioner for services rendered after September 1, 2000; and (b) the amount of compensation petitioner may have earned from other employment between September 1, 2000 and the date petitioner became employed full-time by respondent board during the 2000-2001 school year.