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Decision No. 14,106

Appeal of DONNA SOUKEY from action of the Board of Education of the City School District of the City of Cohoes and Mary Lynn Benoit regarding seniority.

Decision No. 14,106

(April 7, 1999)

Rowley, Forrest, O'Donnell & Beaumont, P.C., attorneys for petitioner, Brian J. O'Donnell, Esq., of counsel

Wertime, Robinson, Ries, & Van Ullen, P.C., attorneys for respondent Board of Education of the City School District of the City of Cohoes, Steven Van Ullen, Esq., of counsel

James R. Sandner, General Counsel, New York State United Teachers, attorney for respondent Benoit, Kevin H. Harren, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Cohoes City School District ("respondent board") to abolish her full-time position teaching health in the 1997-98 school year and place her in a part-time position. Petitioner requests reinstatement to a full-time position with back pay, benefits and seniority from the date of the position reduction and reimbursement of the costs of this appeal. By letter dated August 29, 1997, I denied petitioner's request for a stay pending resolution of this appeal. The appeal must be dismissed.

By letter dated June 23, 1997, Gilbert De Cicco, Superintendent of the Cohoes City School District, notified petitioner that her full-time position as a health teacher in the district would be abolished in the 1997-98 school year, and that she would be placed on a preferred eligible list. Respondent board indicates that it took this action because of budgetary considerations. It continued to employ petitioner in a part-time 6/10 position teaching health in 1997-98. At the end of the 1996-97 school year, respondent Benoit was also employed in a full-time health position, teaching and acting as health coordinator. She continued in a full-time position in 1997-98.

Petitioner alleges that at the end of the 1996-97 school year she had more seniority in the health tenure area than respondent Benoit. Petitioner contends that, therefore, because she was not the least senior teacher in the health tenure area, she should not have been excessed. In addition, petitioner contends that the district failed to adjust other teachers' schedules so as to retain her full-time position.

Respondent board contends that petitioner was the least senior teacher in the health tenure area at the end of the 1996-97 school year, and that it acted properly when it abolished her full-time position. Respondent board also contends that no adjustments could be made in the schedule of other teachers to retain petitioner as a full-time employee. Respondent Benoit denies that she had less seniority in the health tenure area than petitioner and contends that she was employed as a full-time teacher devoting 60 percent of her time to teaching health in 1979-80 and has been continuously employed by the district since that school year.

Before reaching the merits, I will address a procedural issue. Upon commencement of this appeal, Mary Lynn Benoit was not joined as a party. On May 26, 1998, petitioner commenced a second appeal, in which she disputed her appointment to another 6/10 position in 1998-99 and requested that Ms. Benoit be joined as a party in both appeals. On August 18, 1998, Ms. Benoit also requested to be joined as a party. I find that Ms. Benoit's rights would be affected by the outcome of this proceeding. In light of Ms. Benoit's request and in the interests of justice, I will permit her to be joined pursuant to 8 NYCRR "275.1 as a respondent in this proceeding.

By letter dated January 20, 1999, petitioner withdrew the second appeal, indicating that a settlement on the issues had been reached pursuant to a contract grievance. That settlement, dated July 8, 1998, resulted in respondent Benoit's appointment to a full-time health position in 1998-99. It is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Matter of Phillips, 38 Ed Dept Rep 165; Appeal of Campbell, 33 id. 132). I have reviewed the settlement agreement to determine whether I should proceed in this matter. The agreement did not provide petitioner with back pay for the 1997-98 school year, and explicitly stated that the settlement did not affect the right of petitioner to seek back pay for 1997-98 in this appeal. Because the contract grievance has terminated and there is still a live controversy before me which has not been settled, I will proceed with a decision.

Education Law "2510(2) provides:

Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.

Section 30.1 of the Rules of the Board of Regents provides that seniority ". . . need not have been consecutive but shall, during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator", which is defined as 40 percent or more of the total time spent by a professional educator in the performance of his or her duties (see, 8 NYCRR "30.1[f] and [g]).

There is no dispute that both petitioner and respondent Benoit received probationary appointments in the tenure area of health, effective September 1, 1988, and that both were employed as full-time teachers through the end of the 1996-97 school year. Therefore, both accrued seniority credit in health from September 1, 1988 until the end of the 1996-97 school year. Also, it is undisputed that both petitioner and respondent Benoit were employed in full-time positions in the district prior to their probationary terms. At issue in this appeal is the additional seniority credit claimed by the teachers based on prior full-time service.

The district credited respondent Benoit with a full year of seniority in health for the 1979-80 school year. It determined that she devoted 60 percent of her time to teaching health and 40 percent to teaching physical education during that school year and that she was continuously employed by the district from that school year until the end of the 1996-97 school year. Petitioner contends that respondent Benoit devoted only 30 percent of her time to teaching health in 1979-80, and consequently, should not have obtained seniority credit for that year. Petitioner also contends that she should be given seniority credit from an unspecified date in November 1987 until the end of the 1987-88 school year. Respondent board contends that petitioner did not assume full-time duties as a health teacher in the 1987-88 school year until April 4, 1988.

In her verified answer, respondent Benoit affirmatively states that the district assigned her to a full-time teaching schedule of 60 percent health and 40 percent physical education for the 1979-80 school year. She states that each day of that school year she taught a full load of five classes, which included three classes in health and two classes in physical education. She states that health was taught at that time as a half-year course that met every day of the semester and that she taught three separate health classes in the first semester and another three separate health classes in the second semester. According to respondent Benoit, the two remaining teaching periods were devoted to four separate sections of physical education, each of which had class every other day for a full year.

Respondent board states in its verified answer that in the 1979-80 school year, respondent Benoit was employed on a full-time basis and taught three courses in health and two courses in physical education throughout the school year. In sworn affidavits, the district's superintendent states these facts and that he reviewed the personnel records and determined that respondent Benoit had greater seniority in the health tenure area than petitioner, having served in that area continuously on a full-time basis since September 1, 1988 and also for the 1979-80 school year.

Respondent board submitted a printout of data maintained by the State Education Department's Basic Educational Data System (BEDS), to support its finding that respondent Benoit taught health at least 40 percent of the time in 1979-80. Petitioner submitted a similar BEDS report which recorded respondent Benoit's teaching schedule in 1979-80. Petitioner contends that both reports show that respondent Benoit only spent 30 percent of her time teaching health in 1979-80.

I have examined the BEDS reports and find that they only provide information regarding respondent Benoit's work schedule as it existed early in the 1979-80 school year. The reports do not show her assignments in the spring of 1980. The BEDS forms show respondent Benoit's first semester duties, which included three health courses that met 90 times each over 20 weeks, and four physical education courses that met 100 times each over 40 weeks. In her verified answer, respondent Benoit states that she taught 5 class periods per day in both semesters of the 1979-80 school year – 3 periods of health per day (3 separate one semester health classes in the fall semester and 3 additional one semester health classes in the spring semester) and 2 periods of physical education per day (4 separate physical education classes with each section taught on every other day for a full year, 2 sections of instruction per day in alternation). Both respondent board and respondent Benoit assert that Benoit devoted 60 percent of her time to teaching health during the 1979-80 school year.

Because the BEDS reports constitute only a snapshot of respondent Benoit's schedule in the fall of 1979, they are not proof that she spent only 30 percent of her time teaching health in 1979-80, as petitioner contends. 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 (8 NYCRR "275.10; Appeal of Catherine B., 37 Ed Dept Rep 34; Appeals of Lindauer and McKee, 34 id. 596). I have examined all of the evidence in this record and find that petitioner has not substantiated her claim that respondent Benoit devoted less than forty percent of her time to teaching health in 1979-80.

Petitioner presents a number of exhibits that purport to prove that she assumed a full-time position as a health teacher in the district in November 1987, rather than in April 4, 1988, as claimed by respondent board. However, this issue is irrelevant for deciding this appeal. Even if petitioner's position were correct, she would not have sufficient additional seniority credit in the health tenure area to equal or exceed the total seniority credit earned by respondent Benoit after incorporating her service as a health teacher during the 1979-80 school year. Petitioner also asserts that a handwritten note dated May 30, 1991, and purportedly written by respondent's high school principal, is proof that she has greater seniority than respondent Benoit. The note, which is dated May 30 with no year designation, states the following: "Seniority not an issue as you are most senior in health." The handwritten note, while on the letterhead of the high school, is signed only with the first name "Jim" and is addressed to "Donna." There is nothing in the record that indicates that the principal was authorized to make a seniority determination, and there is insufficient evidence in the record of the context of this note. In view of the other documentation in the record, I don't find this note to be persuasive evidence of petitioner's seniority status. On this record, I do not have a sufficient basis to find that respondent board acted improperly when it determined that petitioner had less seniority than respondent Benoit and, consequently, reduced petitioner's position to part-time.

Petitioner contends that respondent board could have adjusted the schedules of other teachers in the district to facilitate her assignment to classes within her various certification areas in order to retain her in full-time service. Petitioner cites three court decisions, Amos v. Board of Education of Cheektowaga-Sloan Union Free School District, 54 AD2d 297, aff'd 43 NY2d 706; Musorofiti v. Board of Education South Huntington Union Free School District, 108 AD2d 863, aff'd 65 NY2d 880; Beeman v. Board of Education Oyster Bay-East Norwich Public Schools, 114 AD2d 359, in support of her contention. Specifically, petitioner claims a district special education teacher and a science teacher are each teaching a health class that could have been assigned to petitioner. Petitioner also asserts that respondent Benoit, who is also certified in physical education, could have been assigned some physical education classes, permitting petitioner to also teach some of respondent Benoit's health classes and retain a full-time position. Finally, petitioner claims that, because she is certified in other areas, she could have been assigned classes in other tenure areas and retained her full-time position.

I note that petitioner has not named or joined any of the other teachers whose classes she purports could have been assigned to her, with the exception of respondent Benoit, who was permitted to join in the appeal. A party whose rights would be adversely affected by the determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Chaney, 33 Ed Dept Rep 12; Appeal of Basile, 32 id. 330). If petitioner were to prevail on her claim that she should be teaching the classes in question, the schedule or positions of the teachers currently teaching those classes could be jeopardized. Therefore, that portion of petitioner’s appeal in which she claims the right to schedule adjustments affecting unnamed teachers must be dismissed (Appeal of Chaney, supra).

In addition, the record does not support petitioner’s claim that the classes taught by the science teacher and special education teacher are, in fact, health classes. Superintendent De Cicco has submitted an affidavit indicating that, although the science and special education teachers are teaching health issues in components of their course work, neither is teaching a health class for which health credit is awarded. Instead, credit is awarded in the area of "Science". Therefore, I conclude that, even were schedule shuffling required in this instance, petitioner has not identified any health classes to which she might be assigned.

Petitioner’s claim that respondent board failed to adjust the schedule of respondent Benoit must also be dismissed. As noted above, Education Law "2510(2) provides that, upon abolition of a position, the services of the least senior teacher in the tenure area must be discontinued. That provision of law has been interpreted by the courts and the Commissioner to require a school board to shuffle teachers’ schedules within the tenure area of the abolished position to retain the most senior teachers in that tenure area (Steele v. Board of Education of Valhalla Union Free School District, 53 AD2d 674, aff’d 42 NY2d 840; Amos v. Board of Education of Cheektowaga-Sloan Union Free School District, supra; Appeal of Chaney, supra). However, those cases, also cited by petitioner, involved teachers whose schedules could be shuffled within the same broad tenure area to enable those with greater seniority to be assigned to teach subjects in which they were both certified and tenured. Petitioner seeks to extend this principle to cross-over into other tenure areas. None of the cases cited by petitioner require such a result (Appeal of Chaney, supra).

There is no requirement for respondent board to shuffle respondent Benoit’s schedule to require her service in a tenure area other than the health tenure area in which she currently serves. Similarly, respondent board is not required to shuffle the schedules of teachers in tenure areas other than health merely because petitioner happens to hold certification in those areas. As the least senior teacher in the health tenure area, petitioner’s service as a full-time teacher was properly reduced. Respondent board is not required to make scheduling adjustments that would effect teachers’ service in any other tenure area in an effort to retain petitioner’s full-time position in the health tenure area. For the reasons set forth above, I do not find that respondent board erred in determining that petitioner was the least senior teacher in the health tenure area and in reducing her full-time position accordingly.

Petitioner’s request for reimbursement of the costs of bringing this appeal must also be denied. The Commissioner of Education lacks authority to award such costs and attorney's fees in an appeal under Education Law "310 (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Ferguson, 32 id. 494; Appeal of Kubinski, 26 id. 348).

I have examined petitioner's remaining contentions and find them to be without merit.