* Subsequent History: Matter of J.R. v State of N.Y., Dept. of Educ.; Supreme Court, Albany County; Special Term (Connolly, J.); Decision and Order dismissed petition to review; May 17, 2018; affd 183 AD3d 1042 (3d Dept 2020). *

Appeals of J.R. from action of the Board of Education of the Remsenburg-Speonk Union Free School District regarding employment.

Decision No. 17,076

(April 19, 2017)

Guercio & Guercio, LLP, attorneys for respondent, Lisa L. Hutchinson, Esq., of counsel

ELIA, Commissioner.--In three separate appeals (J.R. I, J.R. II, and J.R. III), petitioner challenges the determination of the Board of Education of the Remsenburg-Speonk Union Free School District (“respondent”) reducing her position as respondent’s school psychologist from full-time to part-time.  Because the appeals present similar issues of fact and law, they have been consolidated for decision.  All three appeals must be dismissed.

Petitioner had been employed full-time by the district as a school psychologist since September 1994 and was granted tenure in 1997.  Petitioner states that, during the 2008-2009 school year, she began experiencing respiratory symptoms while in the school building.  Petitioner alleged that the symptoms stemmed from the toxic conditions of the school building.

In March 2009, petitioner requested and respondent granted accommodations for her symptoms.  The accommodations included the use of a face respirator while working in the school building, frequent intermittent breaks outside the school building during work hours, assignment to supervision of outdoor recess when recess duty was assigned, removal of rugs from petitioner’s office, and the use of an air filter in her office.  Petitioner states that she filed complaints with the Department of Labor, the Industrial Appeals Board, Public Employee Safety and Health Bureau (“PESH”) and Occupational Safety and Health Administration (“OSHA”) alleging certain toxic conditions in the school building.

Respondent entered into a contract in or about July 2010 with John M. Suozzi, Ph.D. to provide consultant services to students with disabilities and the record indicates that respondent had entered into similar contracts with Dr. Suozzi in 2009 and prior years.  Respondent maintains that this consultant was hired to diagnose and provide services to students with autism; however, petitioner claims that the consultant also provides services to students that are not autistic, thereby negatively impacting her schedule and caseload.

On April 21, 2010, the superintendent met with petitioner and other district employees to discuss potential effects on certain positions as a result of the district’s budget constraints.  Following a review of petitioner’s caseload, respondent determined that her duties and responsibilities could be met through a part-time position and that petitioner’s position could be reduced to half-time.  The record indicates that, thereafter, at its June 14, 2010 meeting, respondent board voted to abolish several positions within the district and to reduce petitioner’s position from full-time to part-time, effective September 1, 2010.  These appeals ensued.  Petitioner commenced J.R. I in May, following the meeting with the superintendent, at which she was informed that her position may be reduced.  Petitioner subsequently commenced J.R. II in July after respondent board’s vote to reduce her position at its June meeting.  Lastly, petitioner commenced J.R. III in September, after the effective date of the reduction of her position.  Petitioner’s requests for interim relief in each of the three appeals were denied.

Petitioner claims that respondent improperly reduced her position as school psychologist to a part-time position in bad faith and not due to budgetary reasons, and that respondent improperly contracted with a consultant to perform duties that petitioner had previously performed.  Petitioner further claims that the reduction of her position was in retaliation for complaints she had filed with various entities regarding the condition of the school building as well as her requests for, and use of, accommodations in the workplace.  Although the petitions are not clear, the essence of petitioner’s claims appears to be that respondent’s actions were retaliatory and, therefore, in violation of the protections afforded to her as a “whistleblower” under Civil Service Law §75-b, the Public Employee Safety and Health Act, Chapter 729 of the Laws of 1980, which enacted Labor Law §27-a (the “PESH Act”), and the federal Occupational Safety and Health Act (“OSHA”).  Petitioner also claims that the reduction constitutes discrimination and harassment.  Petitioner also appears to claim that respondent’s actions violated the Freedom of Information Law (“FOIL”), OSHA, and the Open Meetings Law, as well as various federal discrimination laws, including the Civil Rights Act (presumably Title VII, which relates to employment discrimination), the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act of 1973.  Petitioner seeks reinstatement to her full-time school psychologist position, with back pay and benefits; an order limiting the services of the district’s consultant, Dr. Suozzi; reinstatement of the accommodations that petitioner claims were removed due to the reduction of her position; and upholding of her right to engage in protected activity.

Respondent contends that petitioner has failed to meet her burden of establishing a clear legal right to the relief requested and that its decision to reduce petitioner's position was made in good faith, has a rational basis and was made for valid economic reasons.  Additionally, respondent contends that J.R. I and J.R. II must be dismissed as premature; that the Commissioner lacks jurisdiction over petitioner’s claims under FOIL, the Open Meetings Law, Civil Rights Act, PESH Act and OSHA; and that the appeals should be dismissed for failure to join a necessary party.

First, I must address several procedural issues beginning with petitioner’s replies.  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 replies in each appeal, 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 answers.

Respondent contends that J.R. I and J.R. II must be dismissed as premature since the reduction of petitioner’s position was not effective until September 1, 2010.  The petition in J.R. I alleges that respondent board took action at a board meeting on April 21, 2010, in which it was decided that petitioner’s position should be reduced.  The record  does not support a finding that respondent actually took any action on April 21, 2010, but rather that petitioner was advised by the superintendent on that date that a reduction in her position was being proposed.

With respect to J.R. II, petitioner commenced the appeal within 30 days of respondent’s vote on June 14, 2010 to reduce petitioner’s position to half-time, effective September 1, 2010.  For purposes of determining timeliness, where a petitioner in an abolition case challenges the appointment of another as being in violation of law and tenure rights, an appeal is timely if brought within 30 days of the date on which the other teacher commenced service; where a petitioner challenges the abolition itself, an appeal is timely if brought within 30 days of the decision to abolish the position (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  I recognize that in Appeal of Chaney (33 Ed Dept Rep 12, Decision No. 12,959), the Commissioner, relying upon decisions in Appeal of Bales (32 Ed Dept Rep 559, Decision No. 12,913) and Appeal of Berowski (28 id. 53, Decision No. 12,027), which were partially overruled in Appeal of Gordon, stated that the teacher whose position was abolished is not aggrieved until the start of school in September.  In the current appeals, although far from clear, petitioner appears to be challenging both the abolition of her position as made in bad faith and the July 2010 contract with Dr. Suozzi, who she claims is being assigned duties that should be assigned to her as a tenured school psychologist.  I need not decide, however, whether petitioner became aggrieved prior to September 1, 2010, because the timely commencement of J.R. III renders the prematurity issue academic.  The petition in J.R. III repeats the claims raised in the prior appeals, which claims are addressed below, and I decline to dismiss J.R. I or J.R. II as premature.

To the extent that petitioner raises claims under FOIL or the Open Meetings Law, an appeal under Education Law §310 is not the proper forum for adjudication of these claims.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address any FOIL or Open Meetings Law claims raised in these appeals.

Similarly, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title VII of the Civil Rights Act of 1964[1] (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439, Decision No. 12,879).  Enforcement of those federal discrimination laws lies with the federal courts, the U.S. Department of Justice and, as applicable, the U.S. Equal Employment Opportunity Commission (“EEOC”) or the U.S. Department of Education, and not with the Commissioner of Education in an appeal under Education Law §310.  Therefore, to the extent petitioner raises such claims in this regard, they are also dismissed for lack of subject matter jurisdiction.

For similar reasons, I find that an appeal to the Commissioner of Education is not an appropriate forum for determining claims of violations of OSHA or the PESH Act.  Claims of OSHA violations are properly raised with the Occupational Safety and Health Administration of the U.S. Department of Labor.  Claims of PESH violations are properly raised with the Public Employee Safety and Health Bureau of the New York State Department of Labor.  In fact, Labor Law §27-a(6), (7) and (10) give the Commissioner of Labor and State Supreme Court exclusive authority over enforcement of the PESH Act.  Subdivision (10) of Labor Law §27-a prohibits discrimination against employees who file complaints under the PESH Act, provides for complaints to the Commissioner of Labor where an employee is discharged, disciplined or otherwise discriminated against for filing a PESH Act complaint and gives State Supreme Court jurisdiction over such discrimination complaints.  I find that such claims cannot properly be adjudicated in an appeal under Education Law §310, and, therefore, petitioner’s OSHA and PESH Act claims must be dismissed for lack of subject matter jurisdiction.

I also find that an appeal to the Commissioner of Education is not the appropriate forum to adjudicate claims of retaliatory personnel actions in violation of the whistleblower protections of Civil Service Law §75-b.  Under Civil Service Law §75-b(3), enforcement of the whistleblower protections is either through a collectively bargained arbitration or through an action in a court of competent jurisdiction in accordance with Article 23-c of the Labor Law.  Accordingly, I find that such claims cannot be properly adjudicated in an appeal under Education Law §310 and must be dismissed for lack of subject matter jurisdiction.  I note, however, that to the extent petitioner is claiming that the reduction of her position was made in bad faith, based upon alleged retaliation for her prior safety and health complaints, such claim is not dependent upon finding a violation of Civil Service Law §75-b and is within my jurisdiction under Education Law §310.

To the extent that petitioner seeks limitation or reduction of the services of the district’s consultant, Dr. Suozzi, the appeals 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 a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner claims that respondent improperly reduced her position to part-time and employed Dr. Suozzi to fill some of her former job responsibilities.  As relief, she seeks an order limiting or reducing Dr. Souzzi’s services.  Should petitioner prevail, Dr. Suozzi would be adversely affected. Consequently, he is a necessary party to the appeals.  Petitioner’s failure to join him as a respondent, thus, warrants dismissal.

Even if they were not dismissed on procedural grounds, the appeals would be dismissed on the merits.  The gravamen of petitioner’s appeals appears to be that her position was improperly reduced in bad faith and in violation of her tenure and seniority rights.  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).  Here, respondent board reduced petitioner’s position to half-time, effectively partially abolishing her full-time position.  However, petitioner retained her tenure rights when her position was converted to part-time and she was appropriately continued in the part-time position (see, Matter of Abrams v. Ambach, 43 AD2d 883; Matter of Siniapkin v. Nyquist, 68 Misc2d 214). 

With respect to petitioner’s claim of bad faith on the part of respondent, it is well settled that boards of education have latitude within the law to manage their affairs efficiently and effectively and, when acting in good faith, have the authority to consolidate and abolish positions for economic reasons (Matter of Young v. Board of Educ of Central School Dist. No. 6, 35 NY2d 31; Matter of Currier v. Tompkins-Seneca-Tioga BOCES, 80 AD2d 979; Appeal of Allen, et al., 34 Ed Dept Rep 627, Decision No. 13,433; Appeal of Smith, 32 id. 341, Decision No. 12,849).  The burden of proving bad faith is on the party asserting it (Appeal of Allen, et al., 34 Ed Dept Rep 627, Decision No. 13,433; Appeal of Chaney, 33 id. 12, Decision No. 12,959).  Fractionalization of a tenured teacher’s duties does not, per se, violate the tenure law absent a showing of bad faith (Matter of Ryan v. Ambach, 71 AD2d 719).

On the record before me, petitioner has failed to meet her burden of proving that respondent reduced her position in bad faith.  Petitioner makes conclusory allegations relating to respondent board’s alleged bad faith; asserting that she is the only tenured employee who did not retain full-time employment as a result of respondent’s consolidation of positions; that the district’s need for counseling and evaluation of students with disabilities and those suspected of having a disability still support a full-time schedule; that the district received American Recovery and Reinvestment Act (“ARRA”) funding that could have been used to retain her full-time position; and that respondent has retaliated and discriminated against her.

However, petitioner has not submitted any evidence to establish her assertions.  In response to petitioner’s claims, respondent offers evidence demonstrating budget constraints necessitating the reduction and elimination of positions, as well as evidence that petitioner’s work load had decreased to the point that, for the 2010-2011 school year, she was responsible for counseling only eight students and conducting triennial evaluations for only three students.  Moreover, respondent presents evidence that, in response to the cited budget constraints, it abolished several other positions in addition to reducing petitioner’s position.  Petitioner has provided no credible evidence to refute these assertions.  Therefore, on the record before me, petitioner has not proven that respondent acted in bad faith rather than for legitimate economic reasons, as respondent asserts.

Finally, petitioner alleges that respondent board has improperly assigned Dr. Suozzi, an independent contractor, to perform duties that petitioner could perform, in derogation of her tenure rights, which claim is denied by respondent.  She makes conclusory allegations that Dr. Suozzi performs evaluations of non-autistic students, attends Committee on Special Education meetings relating to the evaluation of students with disabilities and consults and meets with parents and staff.  Respondent asserts that Dr. Suozzi is retained to provide specialized services as an autism consultant, and denies petitioner’s allegations that he is conducting evaluations of or providing services to non-autistic students.  As a general proposition, a board of education does not have the authority to contract with independent contractors to provide core instructional services (Appeal of Barker and Pitcher, 45 Ed Dept Rep, 430, Decision No. 15,375).  However, the State Education Department’s (“SED”) guidance on contracting out for instructional services recognizes that school districts have responsibilities under the Individuals with Disabilities Act and Article 89 of the Education Law to ensure that students with disabilities have access to the full range of services needed to provide a free, appropriate public education (“FAPE”) and that contracting with individuals with specialized expertise may be necessary to meet those responsibilities (New York State Education Department, Q and A Related to Contracts for Instruction, dated June 2, 2010).  In this case, respondent has asserted that Dr. Suozzi is retained to provide specialized services relating to evaluation of students on the autism spectrum, which petitioner is not qualified to provide.  Petitioner has alleged, but has not proven, that Dr. Suozzi is conducting evaluations of non-autistic students that do not require his expertise.  She, therefore, has failed to meet her burden of proof on this issue.  I find that respondent has provided a rationale for using an independent contractor for specialized services that has not been rebutted by petitioner; petitioner’s argument that the contract with Dr. Suozzi is evidence of bad faith is also belied by the fact that Dr. Suozzi had been retained previously by the district while petitioner was employed on a full-time basis and his July 2010 contract essentially constituted an extension of his prior contract for another year.  Moreover, petitioner does not refute her inability to provide such services to students on the autistic spectrum.  Therefore, on this record, petitioner has not met her burden of proving that her duties were unlawfully reassigned to Dr. Suozzi.  Nevertheless, I caution respondent to ensure that Dr. Suozzi is only assigned to perform duties that require his specialized expertise, consistent with Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375 and the SED guidance on contracting for instructional services.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEALS ARE DISMISSED.

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