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Decision No. 16,411

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Appeal of DONNA SCARPINATI DE OLIVEIRA, from action of the Cairo-Durham Central School District, Peter Goodwin and Erin Murphy regarding termination.[1] 

Decision No. 16,411

(September 18, 2012)

Martin, Shudt, Wallace, DiLorenzo & Johnson, attorneys for petitioner, Carlo A.C. de Oliveira, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, Jeffrey D. Honeywell, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the Board of Education of the Cairo-Durham Central School District (“board”) to terminate her employment.  The appeal must be sustained in part.

Petitioner is certified to teach Pre-Kindergarten, Kindergarten and Grades 1-6.  Petitioner was appointed to a three-year probationary appointment in the elementary tenure area, effective September 1, 2007.  In June 2009,
petitioner requested maternity leave pursuant to the existing collective bargaining agreement and the federal Family and Medical Leave Act (“FMLA”).  Accordingly, petitioner was granted an unpaid leave of absence, effective September 1, 2009 to October 13, 2009, when she returned to full-time employment with the district. 

Due to budgetary constraints, at its March 25, 2010 board meeting, the board voted to abolish four positions in the elementary tenure area, effective June 30, 2010.  By letter dated March 31, 2010, the superintendent notified petitioner that her teaching position was abolished, effective June 30, 2010, and that she would be placed on a preferred eligibility list for reinstatement to a similar position in the elementary tenure area.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 6, 2010.

By letter dated September 24, 2010, the superintendent notified petitioner of “an opening in an elementary teaching position” and offered her reappointment thereto.  By letter dated October 4, 2010, petitioner declined reappointment to the position offered.

Petitioner asserts that she was improperly terminated because she was not the least senior teacher in the elementary tenure area.  Specifically, petitioner alleges that the district improperly excluded two sixth grade teachers, respondents Peter Goodwin (“Goodwin”) and Erin Murphy (“Murphy”), from the elementary tenure area seniority list and that those teachers were the least senior in that tenure area.  Petitioner also claims that the district improperly used her FMLA leave to negatively affect her seniority position within the district.  Petitioner requests that I direct the board to amend the elementary tenure area seniority list to include Goodwin and Murphy. She also seeks an order directing the superintendent to restore petitioner to her former position in the district.

The board, Goodwin and Murphy (collectively “respondents”) maintain that petitioner was properly terminated.  Respondents claim that Goodwin and Murphy are not in the elementary tenure area, but rather serve in the mathematics and English tenure areas, respectively.  Procedurally, respondents allege that petitioner’s FMLA claims are outside the jurisdiction of the Commissioner.  Respondents also apparently assert that the appeal is moot because they allege that petitioner declined reappointment to a new position that she was offered in the district.  Finally, respondents ask that I admonish petitioner for making baseless allegations about inappropriate “agreements” and “conspiracies.”

I will first address several procedural matters.  Along with her verified reply, petitioner submitted a letter memorandum dated July 12, 2010 and a reply affidavit.  She also submitted a letter dated October 27, 2010 in response to new information submitted by respondents regarding the board’s reinstatement offer to petitioner.  Respondents challenge the scope of those submissions.

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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Therefore, I have not considered those portions of petitioner’s submissions containing new allegations or belated assertions that are not responsive to new material or affirmative defenses in respondents’ answer.

I also do not find that the appeal is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Respondents assert that, by letter dated September 24, 2010, the board offered to recall petitioner to a position within her tenure area, but that petitioner declined.  Respondents contend that this is evidence that petitioner is not looking to return as a teacher in the district. I disagree.  Petitioner is seeking a determination that she was in the same tenure area as, and had more seniority than, Goodwin and Murphy.  She further seeks a determination that she was erroneously excessed from her first grade teaching position and, consequently, demands reinstatement to that position, not to a kindergarten position, with seniority, back pay and benefits.  Therefore, I decline to dismiss the appeal as moot. 

Turning to the merits, Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”  Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....”  The principal issue in this appeal is whether petitioner was one of the four least senior teachers in the elementary tenure area. 

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Section 30-1.5 provides that:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (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.

Since both Goodwin and Murphy were teaching one of the common branch subjects in the daily program of an elementary school classroom, I find that they were serving in the elementary tenure area and should have been included on the seniority list for such tenure area. 

While respondents argue that these individuals were serving in the mathematics and English tenure areas, I disagree.  First, Education Law §3012-a provides for a single elementary tenure area for common branch teachers in kindergarten through grade sixth.  There is no separate mathematics or English tenure area for teachers providing such instruction in the elementary grades in Part 30 of the Rules of the Board of Regents.  To the contrary, under the §30-1.5 of the Rules of the Board of Regents, a teacher of a core academic subject, which includes English and Mathematics, serves in the elementary tenure area.  Secondly, an individual who is placed into an unauthorized tenure area will be deemed to actually serve within the authorized tenure area which encompasses the teacher’s duties (seeKaufman v Fallsburg CSD Bd. of Educ., 91 NY2d 57 [1997]).  Therefore, I find that Goodwin and Murphy are deemed to serve in the elementary tenure area since September 1, 2007 and October 1, 2007, respectively. Respondent must amend its seniority list for the elementary tenure area accordingly.

Nevertheless, the record reveals that petitioner was still the least senior teacher in the elementary tenure area.  Petitioner was granted an unpaid leave of absence effective September 1, 2009 through October 13, 2009, totaling 23 days of unpaid leave.  It is well settled that days spent on unpaid leave of absence may not be included in determining seniority (Appeal of Goldman, 43 Ed Dept Rep. 338, Decision No. 15,011; Matter of Halayko, 23 id. 384, Decision No. 11,254).  Petitioner argues that, because she took unpaid leave pursuant to the FMLA, such days must still be included in calculating her seniority.[2] However, 29 C.F.R. §825.215(d)(2) specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave” (emphasis added).  Moreover, a guidance letter from the U.S. Department of Labor states, in pertinent part, “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave[.]”  As an example, the letter further states, “[i]f the employer’s established leave policies do not permit the accrual of seniority during an unpaid leave of absence, this same policy would apply to unpaid leave covered by the FMLA leave”  (U.S. Department of Labor; Employment Standards Administration; Guidance Letter; FMLA – 109; September 8, 2000)  (emphasis added).  Petitioner, thus, has not demonstrated any entitlement to include the days she was on unpaid leave in the calculation of her seniority.

According to the record, petitioner served 23 days less than Goodwin and at least three days less than Murphy.  Therefore, petitioner was the least senior teacher in the elementary tenure area and was properly excessed. 

I cannot conclude that respondent board was arbitrary or capricious in terminating petitioner’s employment.  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 respondent board place Goodwin and Murphy in the elementary tenure area; and

IT IS FURTHER ORDERED that respondent board amend its seniority list for the elementary education tenure area to include the names of Goodwin and Murphy as teachers serving in the elementary tenure area.

END OF FILE.

[1] By letter dated July 19, 2010, petitioner withdrew the following individuals as named respondents in this appeal:  Susan Kusminsky, Thomas Plank, Sally Sharkey, Scott Richards and Justin Karker.  Because Justin Karker was withdrawn from this appeal, I have not considered the answer from the New York State United Teachers submitted on his behalf.

[2] To the extent that petitioner seeks enforcement of the FMLA, she may pursue a civil action or bring a complaint to Secretary of the U.S. Department of Labor pursuant to 29 U.S.C. §2617.