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Decision No. 13,910

Appeal of FRANCES JORDAN from action of the Board of Education of the Floral Park-Bellerose Union Free School District and Mary McCrorie, Dorothea DeTrinnis, Wanda Curiale and Pat Staiger regarding seniority.

Appeal No. 13,910

(April 7, 1998)

Kaplowitz & Galinson, Esqs., attorneys for petitioner, Daniel Galinson, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Floral Park-Bellerose Union Free School District ("respondent") to restructure its reading program and reduce her former full-time position to a .45 position. The appeal must be dismissed.

Petitioner is a tenured reading teacher who has been employed in respondent's district since September 1, 1973. The district has two elementary schools, John Lewis Childs Elementary (JLCS) and Floral Park-Bellerose Elementary (FPBS), which are located one mile apart. Prior to the 1996-97 school year, petitioner was the full-time reading teacher assigned to JLCS.

During the course of the 1995-96 school year, respondent directed its superintendent to reorganize its reading program to provide cost efficiencies, maintain the current level of service in the supplemental reading program and provide greater flexibility in the delivery of services. On June 27, 1996, at a regularly scheduled board meeting, respondent adopted the "District Supplementary Reading Program Reorganization Plan". In conjunction with that plan, the two full-time reading/language arts teaching positions were reduced to .45 reading/language arts teaching positions, a supervisory coordinator position was created at .55, and other changes regarding teaching assistants were made.

Petitioner was appointed to one of the .45 positions, and respondent McCrorie was appointed to the other .45 position. Respondent DeTrinnis’ .83 position was abolished and a .90 position was created and assigned to her at John Lewis Childs Elementary School. Respondent Curiale’s .40 position was abolished and a .60 position was created for her at Floral Park-Bellerose Elementary. Respondent Staiger’s .66 position was abolished and she was appointed to a .75 position at Floral Park-Bellerose. Respondents DeTrinnis, Curiale and Staiger are teaching assistants. Petitioner was notified of the abolition of the full-time positions by letter dated June 28, 1996.

Respondent’s plan included the scheduling of services during an A.M. extension and P.M. extension to the school day to avoid pulling students out of their regular classroom assignments. Respondent’s plan also supports the avoidance of intrusions upon the elementary core academic program, provides for planned supervision by the program coordinator to assist in the district's compliance with the State Education Department’s language arts standards, and provides for the supervision of teaching assistants and greater support of the classroom teacher. Respondent alleges that its goal was to provide for a more fiscally responsive program.

On July 29, 1996, petitioner wrote to respondent’s superintendent asserting her seniority in the reading tenure area by asking that she be assigned to respondent DeTrinnis’ .90 program at JLCS, or that she be assigned respondent McCrorie’s morning session at FPBS, in addition to her afternoon position at JLCS, thus creating a .90 position. By letter dated August 23, 1996, the superintendent responded to petitioner’s request by stating that the district was committed to "block scheduling" which required that reading instruction be assigned to respondent McCrorie and petitioner only during the afternoon hours so morning hours would be devoted to academic instruction. The superintendent also informed petitioner that her request to assume respondent DeTrinnis’ position was not feasible since that was a teaching assistant position.

Following an application period, respondent McCrorie was chosen to fill the .55 coordinator position for the district on August 15, 1996. Petitioner was considered for the position, but was not selected. This appeal ensued.

Petitioner alleges that respondent’s reorganization was an attempt to deprive her of tenure and seniority rights. Petitioner also contends that she is entitled to the newly created coordinator position under Education Law "3013. Petitioner further alleges that the .90 position assigned to respondent DeTrinnis contains more than 50% of her former duties. Finally, petitioner alleges that respondent acted arbitrarily, unreasonably, improperly and unlawfully by refusing to adjust its teaching schedules to provide her with a full-time reading teacher position that she was entitled to based on her seniority. Petitioner seeks reinstatement to her full-time position, together with back pay and other emoluments of full-time employment.

Respondent contends that it has not attempted to deprive petitioner of her tenure and seniority rights and that its reorganization was done for bona fide reasons unrelated to petitioner’s employment. Respondent also contends that the appeal is untimely because petitioner first received notice of the abolition of her position in June 1996 and did not commence this appeal within 30 days. Further, respondent contends that its reorganization plan was motivated, developed and implemented in a reasonable and good faith effort to provide students with quality reading services, and that its selection of respondent McCrorie was also a bona fide determination that she could best implement and supervise the program. Finally, respondent contends that petitioner is not entitled to the reading/language arts coordinator position because it is not similar to the reading teacher position held by petitioner prior to June 30, 1996 and that petitioner is not entitled to this position under Education Law "3013.

Before reaching the merits, I will address respondents’ procedural defense that the appeal is untimely. Pursuant to 8 NYCRR 275.16:

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition.

Respondent alleges that the appeal is untimely because its June 28, 1996 letter notified petitioner that her position would be abolished. This appeal was commenced by service of the notice of petition and verified petition on respondents McCrorie and DeTrinnis on September 7, 1996, on respondent Staiger on September 10, 1996, on respondent board on September 13, 1996 and on respondent Curiale on October 5, 1996 which respondent alleges was more than 30 days from the alleged June 28, 1996 notification. However, my review of that letter to petitioner indicates that it stated that two full-time reading teacher positions were being abolished. The letter did not specifically state that petitioner’s position would be abolished. Regardless of whether the June 1996 letter served as notice, petitioner’s appeal is timely. When a position is abolished, a petitioner is not aggrieved until the start of the school year in September (Appeal of Chaney, 32 Ed Dept Rep 12; Appeal of Bales, 32 id. 559; Appeal of Berowski, 28 id. 53). Petitioner’s position was abolished commencing September 1996. This appeal was commenced on September 7, 10 and 13 and October 5, 1996 by service on all respondents. Therefore, I find the appeal timely.

I now turn to the merits. Petitioner’s primary claim is that she is entitled to the reading/language arts coordinator position that was given to respondent McCrorie based on her seniority in the tenure area of reading. Education Law "3013(1) provides, in pertinent part:

If a trustee, board of trustees, board of education or board of cooperative educational services abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.

To establish entitlement to appointment to the new position, petitioner must first establish that the two positions are in the same tenure area (Appeal of Schwarz, 28 Ed Dept Rep 101). There is no dispute that both the reading teacher position and the newly created position of reading/language arts coordinator fall into the reading tenure area.

Moreover, petitioner is entitled to appointment to a newly created position only if the new position is similar to that of her former position [Greenspan v. Dutchess Co.BOCES, 96 AD2d 1028, 466 NYS2d 430 (2d Dept. 1983)]. Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Matter of Coates v. Ambach, 52 AD2d 261, aff'd 42 NY2d 846). Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered (Dinan v. BOE, Farmindale Public Schools, 74 AD2d 922, 426 NYS2d 86).

I find petitioner’s claims under Education Law "3013 without merit. I have reviewed petitioner’s submissions concerning her duties prior to the abolition of the reading teacher position. I have also compared the duties of the newly created position. The facts are apparently in dispute regarding petitioner’s former duties. However, even taking into account that the parties dispute some of the duties of the former position, petitioner fails to meet her burden of proof. Petitioner argues that she should not bear the burden of proving similarity since district materials are not readily available to her. However, in view of the relevant caselaw (Matter of Coates v. Ambach, 52 AD2d 261; Appeal of Schwarz, supra; Appeal of Gworek, 21 Ed Dept Rep 101), petitioner has the burden of proof and it cannot be shifted to respondents. The record indicates that the coordinator position consists of .55 supervisory/administrative duties and .45 remedial reading instruction duties. The supervisory duties of the coordinator position include serving as chief mentor for all district supplemental reading staff, assisting with new entrant screening, preparing and distributing the Title I calendar and serving on the Title I Parent Advisory Committee, reviewing the reading SAT and PEP results, preparing lists of summer reading materials, conducting staff and parent reading workshops, and serving as district-wide reading/language arts resource person. Based on my comparison of these positions, I find that they are sufficiently dissimilar since the new reading language arts coordinator's position clearly contains supervisory and administrative functions not performed by petitioner in her previous position. Petitioner has failed to prove that the majority of the duties of the new reading/language arts coordinator position are similar to those of her former position of reading teacher. Therefore, I cannot find that petitioner is entitled to the position under Education Law "3013.

Petitioner also claims entitlement to the positions held by teaching assistants. However, there is no basis for comparing the two distinct positions of remedial reading teacher and teaching assistant. The fact that the district’s reorganization plan mislabels the positions as "reading teacher" to describe the positions of respondents Curiale, Staiger and DeTrinnis is not dispositive, even taking into account that the teaching assistants may perform duties similar to the reading teachers. I note that, under the Commissioner's regulations, teaching assistants hold certificates that are separate and distinct from regular classroom teachers and provide direct instructional services to students under the general supervision of certified teachers (see 8 NYCRR "80.33[b]). Certification is "a statutory requirement of no small significance" in determining the similarity of two positions (see, Brown v. Bd. of Educ., Morrisville-Eaton Central School District, 211 AD2d 887, 621 NYS2d 167 [3d Dept., 1995]; Appeal of Elmendorf, 36 Ed Dept Rep 308). In view of the foregoing, I conclude that petitioner is not entitled to appointment to one of the teaching assistant positions.

Finally, petitioner maintains that respondent did not abolish the full-time reading teacher positions for bona fide reasons, but acted in bad faith to deprive petitioner of her seniority rights. While a board of education may abolish positions for economic reasons, it may not use the subterfuge of abolishing a position for unsubstantiated economic reasons to avoid compliance with the provisions of Education Law "3020-a (Appeal of Stratton, 33 Ed Dept Rep 373; Matter of Young v. Board of Educ., 35 NY2d 31, 358 NYS2d 709). However, petitioner offers no proof to support her assertion that the reorganization of the district’s reading program was motivated by bad faith. To the contrary, the record indicates that respondent’s reorganization was motivated by a desire to establish a comprehensive reading program capable of providing students with the same level of services in the face of reduced district resources. Petitioner’s assertions that the district should have reorganized its program in a way that could have provided her with a full-time position are without merit. Respondent is under no obligation to create a full-time position to accommodate petitioner and may assign the duties of one position to another position according to its own best judgment (Matter of Young v. BOE, supra; Matter of Zurlo v. Ambach, 75 AD2d 662, aff’d 53 NY2d 1035; Appeal of Bovi, 29 Ed Dept Rep 352).

I have reviewed petitioner's remaining claims and find them without merit.