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Decision No. 16,177

Appeal of KATHI GIMBRONE, from action of the Board of Education of the Randolph Central School District, Kimberly Moritz, Eric Sipe, Sean Ode and Shawn Huffington, regarding seniority.

Decision No. 16,177

(December 9, 2010)

James D. Hartt, Esq., attorney for petitioner

Hodgson Russ, LLP, attorneys for respondents Board of Education of the Randolph Central School District and Superintendent Kimberly Moritz, Jeffrey F. Swiatek and Brendan P. Kelleher, Esqs., of counsel

STEINER, Commissioner.--Petitioner challenges various actions of the Board of Education of the Randolph Central School District ("respondent board” or “board”) and Superintendent Kimberly Moritz (“superintendent” collectively referred to as “respondents”) to terminate her employment.  The appeal must be dismissed.

Petitioner is certified in reading and elementary education.  Petitioner was appointed to a probationary position in the remedial reading tenure area and was granted tenure in reading effective August 29, 2004.  Due to budgetary constraints, at its June 3, 2009 board meeting, the board voted to abolish two reading positions.  By letter dated June 4, 2009, the superintendent notified petitioner that her reading teacher position was abolished, effective June 30, 2009 and that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.  This appeal ensued and petitioner’s request for interim relief was denied on October 14, 2009. 

It is undisputed that petitioner is one of the two least senior reading teachers.  However, petitioner asserts that she was improperly terminated because she had a right to a position in the elementary tenure area.  Specifically, petitioner alleges that she accrued seniority in the elementary tenure area during the 2001-2002 and 2002-2003 school years and that she is entitled to “bump” a teacher in the elementary tenure area with less seniority.  Petitioner requests that she be placed into an elementary teaching position.  Petitioner also claims that respondents’ memorandum of law is untimely and asks that I reject it and any affidavits submitted by respondents that contain new allegations.

Respondents maintain that petitioner was properly terminated.  Respondents claim that petitioner spent significantly less than 40% of her time as a professional educator performing the work of an elementary school classroom teacher during the 2001-2002 and 2002-2003 school years, and therefore, that she is not entitled to seniority credit in the elementary tenure area.  Respondents also allege that the appeal is untimely. 

At the outset, I must address the parties’ procedural objections.  Petitioner requests that I reject respondents’ memorandum of law as untimely.  Section 276.4 of the Commissioner’s regulations requires respondents to serve a memorandum of law on petitioner in accordance with §275.9 within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  In this case, my Office of Counsel agreed to extend the deadline for respondents to serve their memorandum of law until December 21, 2009 and respondents’ memorandum of law was served on that date.  Accordingly, I have accepted respondents’ memorandum of law as timely.

However, a memorandum of law may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Similarly, a reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521). Therefore, while I have reviewed respondents’ memorandum of law and petitioner’s reply, I have not considered those portions that contain new allegations or exhibits.

I also have not considered the new allegations and exhibits contained in petitioner’s April 14 and May 28, 2010 letters.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443). 

An appeal to 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 (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  In circumstances such as this, a petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Petkovsek, 48 Ed Dept Rep 513, Decision No. 15,933; Appeal of Berowski, 28 id. 53, Decision No. 12,027).  Whether petitioner was aware of the board’s decision is not the controlling factor.  Since petitioner initiated the appeal within 30 days of September 1, 2009, the school start date on which petitioner became aggrieved, I will not dismiss the appeal as untimely.

Nevertheless, the appeal must be dismissed on the merits.  Section 30-1.13(c) of the Commissioner’s regulations provides that, in cases involving the abolition of a position, if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.  

Section 30-1.1(f) of the Commissioner’s regulations defines seniority as follows:

Seniority means 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.

As used in Part 30 of the Commissioner’s regulations, substantial portion means:

40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g] [emphasis added]).

The principal issue in this appeal is whether or not 40% or more of the total time spent by petitioner in the performance of her duties in the 2001-2002 and 2002-2003 school years was spent in the elementary tenure area.  Petitioner claims that in the 2001-2002 school year she taught mathematics instruction to five fifth grade classes (450 minutes per week) and reading instruction to five fifth grade classes (450 minutes per week).  She also indicates that she provided academic intervention services (“AIS”) to first grade students in reading (80 minutes per week) and in mathematics (80 minutes per week).  Therefore, she alleges that she spent 50% of her time (530 minutes per week) in the remedial reading tenure area and 50% of her time in the elementary tenure area (530 minutes per week) in the 2001-2002 school year.   

Petitioner also alleges that in the 2002-2003 school year she taught regular math and math AIS (220 minutes per week) and regular reading and reading AIS (220 minutes per week) to two first grade classes.  She also asserts that she worked with two kindergarten classes teaching readiness skills which included reading and math for a total of 225 minutes per week in both reading and math.  Therefore, petitioner claims she spent 50% of her time in the remedial reading tenure area (445 minutes per week of reading) and 50% of her time in the elementary tenure area (445 minutes per week of math) during the 2002-2003 school year. 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  The tenure area to which any employee belongs is determined by reference to the time of the normal work day spent in a tenure area (Maine-Endwell Teachers Ass’n, et al. v. Maine-Endwell Cent. School Dist., et al., 92 AD2d 1052; seeAppeal of Klein, 43 Ed Dept Rep 305, Decision No. 15,003; Appeal of Boron, 32 id. 369, Decision No. 12,858).

Section 30-1.5 provides that a professional educator who is employed to devote a substantial portion of his or her time to in the common branch subjects at the kindergarten (classroom instruction including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area. 

Section 30-1.1(b) defines common branch subjects as follows:

Common branch subjects means any or all of the subjects usually included in the daily program of an elementary school classroom such as arithmetic, civics, visual arts, elementary science, English language, geography, history, hygiene, physical activities, practical arts, reading, music, writing, and such other similar subjects (emphasis added).

My examination of these provisions and the record before me leads me to conclude that petitioner failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.  I have reviewed petitioner’s class schedules, student lists and Title I reports in support of her claim to seniority credit in the elementary tenure area.  However, these documents fail to substantiate petitioner’s claim that she performed a substantial portion of her time in the 2001-2002 and 2002-2003 school years in the elementary tenure area. 

While petitioner has provided conclusory assertions that she spent 50% of her time in the 2001-2002 and 2002-2003 school years in both the remedial reading and elementary tenure area, she has failed to provide detailed calculations and/or sufficient documentation to substantiate this claim.  On the contrary, petitioner appears to shorten the amount of time of her normal work day and the class schedules she submitted do not support her claim that her normal work week consisted of 1,060 minutes per week in the 2001-2002 school year and 890 minutes per week in the 2002-2003 school year.  Thus, on this record, I am simply unable to conclude that petitioner actually spent 40% of her time teaching in the elementary tenure area during the 2001-2002 and 2002-2003 school years.

In view of the foregoing, I cannot conclude that respondent board was arbitrary or capricious in terminating petitioner’s employment.

THE APPEAL IS DISMISSED.

END OF FILE.