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Decision No. 17,322

Appeal of MARTHA KENNELLY from action of the Board of Trustees of the New Suffolk Common School District and the New Suffolk Common School District regarding teaching assignments.

Decision No. 17,322

(February 12, 2018)

Law Office of Stanley J. Silverstone, attorneys for petitioner, Stanley J. Silverstone, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondents, Robert H. Cohen, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Trustees of the New Suffolk Common School District (“respondent board”) to appoint her to certain non-instructional duties following her reinstatement.  The appeal must be dismissed.

Petitioner is a tenured teacher in the New Suffolk Common School District (“respondent district”) serving in the Elementary Education K-6 tenure area.  Petitioner’s prior appeal regarding her seniority rights was sustained in part on August 8, 2017 (Appeal of Kennelly, 57 Ed Dept Rep, Decision No. 17,137).  The facts set forth in that decision are incorporated herein by reference and will not be repeated here at length.  Following the issuance of a decision in petitioner’s first appeal, petitioner was reinstated to the district on September 1, 2017.

Following her reinstatement, petitioner was assigned to curriculum development duties for the district’s kindergarten through sixth grade science, technology, engineering and math curriculums.  Respondent notes that petitioner had also been assigned to English as a Second Language (“ESL”) curriculum development duties upon her reinstatement, but that such duties were removed after petitioner objected that the work was outside her tenure area.  Both parties agree that petitioner does not spend any time in the classrooms in an instructional capacity.  This appeal ensued.

Petitioner argues that she has been assigned to perform duties outside of her tenure area, in violation of law and regulation.  Petitioner asserts that her current assignment does not include any classroom instruction, in violation of Regents Rule §30-1.5, and that she did not at any time consent to an assignment that devotes a substantial portion of her time outside of her tenure area, as required by Regents Rule §30-1.9(c).  Petitioner further asserts that respondents have placed unreasonable restrictions on her employment including prescribing the methods of communication with other staff, prohibiting her from observing student instruction, prohibiting her the use of the photocopier, and requiring her to meet with the principal in another location.  Petitioner also asserts that staff were informed that they would lose their jobs if petitioner did not accept a settlement from the district by December 2017.  Petitioner argues that all of these actions are in retaliation for the filing of her previous appeal to the Commissioner, in 2015, and a civil law suit against the district.

Petitioner requests that an order be issued as follows: declaring that her assignment is inconsistent with her tenure area and violative of applicable law, and directing respondents to provide petitioner with an assignment that is appropriate to petitioner’s tenure area; declaring that the restrictions placed on petitioner’s assignment are retaliatory in nature and instructing respondents to retract such restrictions and post a notice of violation; declaring that the communication to staff regarding petitioner accepting a settlement from respondents was retaliatory in nature and instructing respondents to retract such communication and post a notice of violation; and declaring that respondents have engaged in improper punitive actions against petitioner in violation of Education Law §§3020 and 3020-a and requiring a posting of a notice of violation.

Respondents contend that their actions were in all respects proper, that no adverse employment action was taken, and that the actions were not retaliatory in nature.  Respondents further contend that the appeal should be dismissed for failure to join necessary parties, failure to state a claim upon which relief may be granted, and for lack of jurisdiction.

I must first address the procedural matters.  Respondents argue that the appeal must be dismissed for failure to join necessary parties.  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).  Respondents assert that the two teachers currently providing classroom instruction, Nicole Pollina and Sara Campbell, are necessary parties to the instant appeal, just as they were necessary parties to petitioner’s prior appeal.  Respondents contend that, should petitioner prevail, either Pollina or Campbell would need to be removed from the classroom and reassigned to petitioner’s current duties in order for petitioner to be assigned to a classroom.  If I were to accept petitioner’s argument that the duties she has been assigned to perform are outside her tenure area and find in petitioner’s favor, the employment rights of Pollina and/or Campbell would be adversely affected.  Under these circumstances, they are necessary parties and should have been clearly named in and served with the petition and joined as such (Appeal of Nolett, 48 Ed Dept Rep 259, Decision No. 15,852; Appeal of Johnson, 46 id. 432, Decision No. 15,555; Appeal of Fife, 46 id. 361, Decision No. 15,533).  Therefore, to the extent that petitioner seeks to be assigned to perform the duties of either Pollina or Campbell, the appeal must be dismissed for failure to join them as necessary parties.  However, neither Pollina nor Campbell would be aggrieved by a determination in favor of petitioner on her claims of retaliatory actions by respondent upon her reinstatement as a result of the decision in her prior appeal, so I decline to dismiss such claims for failure to join necessary parties.

Respondents also assert in their answer that the Commissioner lacks jurisdiction to make findings of workplace retaliation and require the posting of a notice of violation, though this argument appears to have been abandoned in respondents’ memorandum of law.  On this record, I would reject such argument in any event.  Petitioner’s retaliation claims are not based on a statute that confers exclusive jurisdiction on a court or another agency and there is no evidence that such claims have already been raised in a contractual grievance process or another forum (cf. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,235 [Commissioner lacks jurisdiction over retaliation claims that were the subject of a contractual grievance]).  Respondents have not cited any authority for the proposition that the Commissioner lacks jurisdiction over workplace retaliation claims generally, and I find none.  I note that the Commissioner’s decision in Application of Cleveland and Bedell, 36 Ed Dept Rep 482, Decision No. 13,781, cited in respondents’ memorandum of law, suggests that adverse employment actions taken in retaliation for a prior complaint may be the subject of an application for removal under Education Law §306.  In any case, where, as here, the claims are based on retaliation for bringing a successful prior §310 appeal, the alleged retaliatory actions would conflict with the intent of my prior order in Appeal of Kennelly, 57 Ed Dept Rep, Decision No. 17,137, in which I ordered petitioner’s reinstatement retroactively with back pay and benefits if respondents determined that petitioner was not the least senior teacher in the tenure area of the position abolished.  Accordingly, I decline to dismiss petitioner’s retaliation claims for lack of jurisdiction under these circumstances.

Turning to the merits of petitioner’s remaining claims, petitioner argues that the restrictions placed on her employment by respondents were retaliatory.  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).  Petitioner states, in her petition, that she was instructed not to speak to any teachers directly, that her access to information about students’ work and curriculum was restricted to email communication with teachers only, that she was prohibited from observing student instruction, that she was prohibited from using the school’s photocopier, and that she has had to meet with the principal off-site.  Respondents deny petitioner’s specific allegations, but admit that some restrictions were placed on petitioner, and assert that they have non-retaliatory reasons for such restrictions.

Respondents’ principal attests in an affidavit that because of the extremely tight quarters in the district’s three-room school house, there is no room for an office or even a desk for petitioner.  Thus, he attests that there is no place for petitioner to meet with classroom teachers or the principal, and petitioner is asked to meet with the principal in a meeting space at the local public library, which respondents indicate is within the district’s boundaries.  Similarly, the principal asserts that petitioner was asked to avoid photocopying within the school building because of the cramped quarters and the fact that the copy machine was already being used to full capacity.  The principal also asserts that there is no need for petitioner to conduct classroom observations because curriculum is not teacher specific.  Respondents do not admit that petitioner was instructed not to speak to classroom teachers in person or over the telephone about curriculum or student work and the principal asserts that petitioner was encouraged to use email to communicate with classroom teachers.  The principal admits that he advised the classroom teachers that the prior Commissioner’s decision may result in one of them being excessed at the end of the school year to provide them with fair notice of such consequence.  Finally, the principal asserts that petitioner received virtually the same curriculum development assignment she had voluntarily held prior to being excessed and later reinstated as a result of the prior Commissioner’s decision.  Respondents allege in their answer that the same reasonable restrictions were placed on petitioner when she last worked for the district in the 2014-2015 school year, and such allegation is not rebutted by petitioner in her reply.

Petitioner makes conclusory allegations that restrictions were imposed by respondents in order to retaliate against her but supplies no evidence to support her contention.  She also offers no explanation of how such restrictions could be retaliatory if the same restrictions were imposed on her in her prior curriculum development position.  Therefore, petitioner has not met her burden of proof on this issue and the appeal must be dismissed in its entirety

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

THE APPEAL IS DISMISSED.

END OF FILE