Decision No. 17,068
Appeal of WILL WASHINGTON from action of the Board of Education of the Greenburgh Central School District regarding the board’s refusal to reinstate him to his former position as assistant principal upon termination of his probationary appointment as high school principal.
Decision No. 17,068
(April 3, 2017)
Robert Saperstein, Esq., attorney for petitioner
Keane & Beane, P.C., attorneys for respondent, William Kang, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the Board of Education of the Greenburgh Central School District’s (“respondent” or “respondent board”) refusal to reinstate him to his former position as an assistant principal upon termination of his probationary appointment as high school principal. The appeal must be dismissed.
Petitioner was hired by respondent as a dean in October 1999 and, commencing on or about April 2001, he served as the high school assistant principal. At its September 20, 2002 board meeting, respondent granted petitioner tenure in the assistant principal/dean tenure area, effective September 30, 2002. At the start of the 2012-2013 school year, petitioner was serving as a tenured high school assistant principal in the district’s high school. At its June 28, 2012 meeting, the board appointed petitioner to serve as the high school principal of the Woodlands High School for the 2012-2013 school year and accepted petitioner’s resignation from his position as assistant principal, effective June 28, 2012. At the same meeting, the board granted petitioner a three-year probationary appointment as the principal of the Woodlands High School
effective July 1, 2012 through June 30, 2015. By letter dated July 9, 2012, petitioner was notified that at its July 3, 2012 meeting, the board rescinded its prior resolution approving petitioner’s resignation as assistant principal for the Woodlands High School and instead approved an unpaid leave of absence of petitioner as assistant principal of Woodlands High School effective July 1, 2012 through June 30, 2015. In October 2014, petitioner was administratively reassigned to home. Thereafter, by letter dated March 4, 2015, petitioner was notified that his probationary appointment as high school principal would be terminated, effective March 26, 2015 and that he would not be reinstated to his former position as high school assistant principal. This appeal ensued.
Petitioner asserts that under the terms of the leave of absence, he was entitled to reappointment as assistant principal upon termination of his probationary appointment as high school principal in March 2015. He further asserts that the district is estopped from claiming it does not have to reappoint petitioner to his former assistant principal position because petitioner accepted the high school principal position based upon the representations of the superintendent. Petitioner also contends that the district’s actions violate Education Law §§3020 and 3020-a. Petitioner requests that he be reinstated to his former position as a high school assistant principal, nunc pro tunc, to March 24, 2015, with full back pay, interest, benefits, seniority, tenure and other emoluments of office.
Respondent asserts that petitioner never communicated any conditions on his leave of absence to the board nor were any conditions made part of his appointment or leave of absence. Instead, respondent asserts that its actions were proper in that petitioner would be returned to his assistant principal position on July 1, 2015 following the completion of his leave of absence without pay.
First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
To the extent that petitioner requests that he be reinstated to his former position as a high school assistant principal, with back pay and benefits, nunc pro tunc, from March 24, 2015, the appeal must be dismissed, in part, as 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). By letter affidavit dated February 25, 2016, the superintendent explained that on July 1, 2015, petitioner was reinstated to his former high school assistant principal position and that he has continued in that position to date with full salary and benefits. Therefore, I need only address the remaining claim, which is petitioner’s request for reinstatement to his assistant principal position from March 24, 2015 until July 1, 2015, with back pay, interest, benefits, seniority, tenure and other emoluments of office during this time.
In an appeal to the Commissioner, the 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828). By letter dated July 9, 2012, petitioner was notified that the board approved “an unpaid leave of absence of Will Washington as Assistant Principal of Woodlands High School effective July 1, 2012, ending June 30, 2015.” Based on the record before me, I find that the item approved by respondent on July 3, 2012 is clear that petitioner’s unpaid leave of absence expired on June 30, 2015 and there is nothing in this item that indicates that petitioner could return to his former position immediately if he was terminated from his position as high school principal during his probationary appointment. Moreover, the item indicates that respondent board, in anticipation of petitioner’s resignation as assistant principal, had accepted such resignation on June 28, 2012, the date on which petitioner was appointed as principal. It then indicates that respondent board approved petitioner’s request for a three-year leave of absence, but is silent about what would happen if petitioner’s probationary appointment to the principal position was terminated prior to June 30, 2015.
Moreover, I find petitioner’s claim that his leave of absence from his former position as assistant principal was involuntary unavailing. “A crucial element of coercion or duress is lack of free choice. The circumstances involved must be such that the party * * * had no practical alternative open to him” (Korn v. Franchard Corp., 388 FSupp 1326, 1333; see also Podmore v. Our Lady of Victory Infant Home, 82 AD2d 48). While the leave of absence may have provided an incentive for petitioner to take the principal position, on this record it cannot be said that his will was overcome and that he was not capable of exercising free choice to reject the new position or to request that his leave of absence be conditioned on a return to his former position if the new position did not work out.
I must also reject petitioner’s contention that respondent’s conduct warrants the application of the doctrine of “equitable estoppel.” It is well-settled that the doctrine of equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Bates, 44 Ed Dept Rep 354, Decision No. 15,196; Appeal of Perez, 42 id. 71, Decision No. 14,779).
Petitioner cites Bender v. New York City Health and Hospitals Corp., 38 NY2d 662, wherein the Court of Appeals applied the principles of promissory estoppel to a local government and held that "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise would have raised”. I find that the narrow exception in Bender does not apply here. This is not a case in which respondent acted wrongfully or negligently in granting the leave of absence for the period requested by petitioner. Moreover, to invoke promissory estoppel, there must be a clear and unambiguous promise that is relied upon to a person’s detriment (Agress v. Clarkstown Cent. School Dist., 69 AD3d 769; Vassenelli v. City of Syracuse, 138 AD2d 1471). Here, there is nothing in the board resolution approving the leave of absence to indicate a clear and unambiguous promise that petitioner could return to his position as assistant principal immediately if his probationary appointment was terminated prior to July 1, 2015. Petitioner asserts in his affidavit that respondent’s superintendent of schools at the time told him that he would be given a leave of absence for the same period as the probationary appointment and if the principal position did not work out he would be returned to his assistant principal position. Such statements do not clearly and unambiguously specify when petitioner would be returned to his former position, and it is undisputed that respondent returned petitioner to his position on July 1, 2015. On these facts, I find that petitioner has not established that this is one of those rare cases in which there is an exception to the general rule that equitable estoppel does not apply to governmental agencies.
The record reflects that petitioner was aware of the three-year leave of absence (July 1, 2012 through June 30, 2015) and thus had time to have the board add conditions to the leave of absence if he wanted the leave of absence to expire in the event that he was terminated during his probationary appointment. Petitioner argues that his leave of absence should be declared a nullity because it was entered under a mutual mistake of fact, i.e. that he would be able to immediately return to his position as assistant principal when his appointment as high school principal was terminated. However, petitioner has failed to demonstrate that there was a mutual mistake of fact. The school district justifiably took the position that by accepting the high school principal position with a three-year probationary appointment and a leave of absence from his prior position from July 1, 2012 through June 30, 2015, petitioner was not entitled to return to his position as assistant principal until July 1, 2015. Nowhere in the letter dated July 9, 2012 or in the leave of absence approved by the board does it indicate that petitioner could return to his prior position earlier than July 1, 2015 if his probationary period as a high school principal terminated earlier than July 1, 2015 and/or for any other reason. On the contrary, the leave of absence is clear that it was for three years and was effective until June 30, 2015. Therefore, on this record, I find that the school district could reasonably construe the leave of absence to continue in effect until June 30, 2015.
I must also reject petitioner’s contention that respondent’s action amounted to a fine in violation of Education Law §3020-a. Petitioner cites to TeBordo v. Cold Spring Harbor Cent. School District., 126 AD2d 542 (2nd Cir. 1987) for the proposition that a “tenured teacher is entitled to a due process hearing prior to the imposition of a reprimand, a fine, suspension for a fixed time without pay or dismissal.” However, in TeBordo, the issue was whether the district’s placement of certain letters in petitioner’s personnel file constituted an impermissible reprimand, and in that case the court found that the letters fell far short of the sort of formal reprimand contemplated by the statute. Here, no disciplinary action has been taken against petitioner and petitioner voluntary signed an unpaid leave of absence from his tenured position. I find that petitioner’s failure to perform teaching duties from March 24, 2015 through July 30, 2015 was due to his own voluntary act (see e.g. Dillon v Board of Educ. of Pearl River School Dist., 51 AD2d 967 ). Therefore, I must reject petitioner’s claim that the district violated Education Law §3020-a because the terms of petitioner’s leave of absence are clear that he was on an unpaid leave of absence from his former position as assistant principal of the Woodlands High School until July 1, 2015 and the record reveals that the district reinstated petitioner to such position on July 1, 2015 (at the expiration of the leave of absence).
In light of this disposition, I need not address petitioner’s remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 In May 2014, petitioner and seven other employees brought a federal lawsuit against Ronald Ross, the former superintendent, the district and a majority of the members of respondent board, asserting racial and gender discrimination in the workplace. Thereafter in September 2014, the employment of Ross was terminated for misconduct following a disciplinary hearing. The federal court proceeding was withdrawn with prejudice in August 2015.
 I note that the Court of Appeals in Matter of Hamptons Hosp. and Med. Ctr. v. Moore, 52 NY2d 88, 93 n.1, narrowed the breadth of its Bender decision, stating that Bender addressed “an unusual factual situation,” is of “very limited” application and does not diminish the general rule that estoppel is not applicable to agencies acting in a governmental capacity.