Decision No. 13,075

(December 31, 1993)

James R. Sandner, Esq., attorney for petitioner, John H. Jurgens, Esq., of counsel

Raymond G. Kuntz, P.C., attorney for respondent, Mario L. Spagnuolo, Esq., of counsel

SOBOL, Commissioner.--Petitioner Margaret Guttilla, a teacher certified in both physical education and health education, has been employed by respondent since 1971. Petitioner requests that I find that she has greater district-wide seniority than respondents Susan Searles, Robert Hudson and William Lynch and that I direct respondent board of education to recall her to a full-time physical education position effective September 3, 1991. The appeal must be dismissed.

Petitioner served a probationary appointment and received tenure as a physical education teacher in September 1974. On April 1, 1982, petitioner was advised that due to declining enrollment, the closing of two elementary schools and the fact that she was the least senior teacher on the physical education seniority list, there would not be a position available for her in the upcoming school year. In June 1982, petitioner requested that she be considered for a position in the health education tenure area, and that request was granted by the board of education on July 1, 1982. For the 1982-1983 school year, petitioner served 60% of her time as a health education teacher, 20% as a reading teacher, and 20% of her time was spent on physical education instruction. For the 1983-1984 and 1984-1985 school years, petitioner served 90% of her time as a health education teacher, and 10% of her duties were spent on physical education. From September 1985 to January 1986 petitioner was on a child care leave. On her return, she served in a position made up of 80% health education duties and 20% physical education duties. For the 1986-1987 school year through the 1990-1991 school year, petitioner served 100% of her time as a health education teacher. Respondent Susan Searles has been employed full time in the physical education tenure area since 1971 and respondents Robert Hudson and William Lynch are full-time teachers employed in the physical education tenure area since approximately September 1, 1988.

On March 26, 1991 respondent advised petitioner that due to a decrease in the number of required positions she would no longer have a full time health education position available for the 1991-1992 school year. At the same time, respondent terminated the services of respondents Searles, Hudson and Lynch from their physical education positions due to a need to excess positions in that tenure area. Effective September 3, 1991, respondent recalled Searles, Hudson and Lynch to full-time positions in the physical education tenure area. Effective at the same time, petitioner was recalled to a full-time position, consisting of 80% duty in the health education tenure area and 20% in the physical education tenure area.

Petitioner commenced this appeal on or about September 30, 1991. Petitioner alleges that she has greater district-wide seniority and seniority in physical education than Susan Searles, Robert Hudson and William Lynch. She, therefore, contends that the failure of the board of education to offer her a full-time position in physical education when Searles, Hudson and Lynch were rehired violated her preferred eligibility recall rights under Education Law '2510(3) to the vacant positions in physical education.

When respondent board of education submitted its original answer to the petition, it raised the defense that petitioner's failure to join Susan Searles, Robert Hudson and William Lynch required dismissal of the appeal because these individuals were necessary parties. Petitioner took the position that these individuals were not necessary parties but nevertheless filed an application seeking permission to join them as respondents. Petitioner's request was granted, and on or about December 10, 1991, petitioner served and filed an amended petition including Searles, Hudson and Lynch as parties respondent.

Respondents allege that they have no record of petitioner having served in any physical education position during the 1982-83, 1983-84, 1984-85 and 1985-86 school years. Respondents maintain that if any such service is in fact proven by petitioner, it did not constitute service pursuant to a recall from the preferred eligible list for physical education. Respondents additionally contend that this appeal, instituted on September 30, 1991, is not timely since petitioner was notified that she was not on the recall list for physical education by letter dated March 26, 1991, and that this proceeding was not commenced within thirty days of that action. Lastly, respondents contend that petitioner waived her right to recall to a physical education position when she requested and received a probationary, and later a tenure appointment as a health education teacher.

In its reply, petitioner concedes that respondent never described petitioner's physical education appointments for the years 1982-83 through 1985-86 as appointments granted by virtue of her position on the preferred eligibility list, but contends that respondent's failure to do so cannot prejudice petitioner's rights, since petitioner did serve in a physical education position during those periods. Petitioner also contends that since she last served in the physical education tenure area during the 1985-86 school year, her preferred eligibility rights established pursuant to Education Law '2510(3) extend until seven years from that date, or until 1993, and that she, therefore, should have been recalled to a physical education position when respondents Searles, Hudson and Lynch were given physical education positions in September 1991. Petitioner further contends that this appeal is timely since it was brought within thirty days of respondent's failure to offer her a full-time physical education position in September 1991.

Petitioner has produced documentation that indicates that she served in limited physical education positions until the conclusion of the 1985-86 school year. In the absence of any countervailing evidence from respondent, I find that petitioner did serve in these positions to the extent outlined in the petition and supporting documentation.

While in certain circumstances reduction to part-time service, instituted by a board of education, does not diminish a teacher's seniority rights (Matter of Nicolette, 17 Ed Dept Rep 381), I find that the rationale of Nicolette, supra, and the cases upon which it relies, is inapplicable here. In this case, there was an abolition of petitioner's full time physical education position coupled with an election by petitioner to enter the new tenure area of health in June 1982. This constitutes a voluntary change in tenure area and, therefore, petitioner's reliance on Nicolette, supra, is misplaced. Petitioner's additional claim--that her incidental assignments to physical education positions for the 1982-1986 school years were due to her preferred eligibility recall rights--is not established in the record before me. It is petitioner's burden to establish the facts sufficient to support her claim to continued employment in physical education as a result of her recall rights, and she has failed to do so (Appeal of Verity, 31 Ed Dept Rep 485). Accordingly, I find that her preferred eligibility recall rights to a physical education position expired in 1989, seven years from the abolition of her physical education position in 1982 (Education Law '2510.3(a)).

Additionally, petitioner received clear notice of respondent's determination of her physical education recall rights in March 1991, when she received a copy of the physical education recall list, indicating she was not on that list. Any challenge to her preferred eligibility recall rights to a physical education position as determined by respondent in March 1991 should have been initiated, at the latest, within thirty days of that March 1991 notification. This appeal, commenced in September 1991, is not timely to challenge that determination.

I have considered the remaining arguments raised by the parties and find them without merit.

THE APPEAL IS DISMISSED.

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