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Decision No. 14,677

Appeal of LINDA DONATO from action of the Board of Education of the Plainview-Old Bethpage Central School District, Superintendent Anthony Cavanna, and Dorothy Wohl, regarding preferred eligible rights.

Decision No. 14,677

(December 21, 2001)

Joseph P. Marro, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondents, Thomas M. Sabellico, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") not to hire her as Social Studies chairperson. The appeal must be dismissed.

Petitioner is certified as a social studies teacher, a school administrator and supervisor, and a school district administrator. Petitioner was employed by the district from 1966 until 1993. From 1969 until 1981, petitioner was a tenured social studies teacher. In 1981, petitioner received a probationary appointment as Social Studies chairperson for the H.B. Mattlin Middle School (grades 5-8), and was granted tenure as chairperson in 1984. While serving as Social Studies chairperson, petitioner continued to teach three, and then two, classes a day.

On May 28, 1991, respondent abolished petitioner's position, as well as the position of the Social Studies chairperson at the district's other middle school and at the high school, effective June 30, 1991. As a result, respondent terminated petitioner's employment effective June 30, 1991, and placed her on a preferred eligible list in accordance with Education Law "3013(3). Respondent subsequently hired petitioner as an Assistant Principal and she commenced serving her probationary appointment on September 1, 1991. Petitioner was terminated from that position in June 1993 and apparently retired.

According to respondent, in September 1992, while petitioner was serving as a probationary Assistant Principal, then Superintendent Henry Grishman notified petitioner in writing of an anticipated vacancy for a Social Studies supervisor position. Mr. Grishman's letter advised petitioner that she had until September 11, 1992 to express her interest in the position, or her name would be permanently removed from the preferred eligible list. According to respondent, petitioner failed to respond to the letter.

In October 1994, petitioner commenced an Article 78 proceeding against respondent in Nassau County Supreme Court seeking a position as a Social Studies teacher. Petitioner asserted that she had continued to teach three classes a day while serving as Social Studies chairperson and that the functions of the chairperson position were similar to the function of a teacher. By Order dated August 31, 1995, Justice Stuart Ain determined that petitioner was not entitled to the Social Studies teacher position because she had no preferred eligible rights as a teacher and her duties as Social Studies chairperson were not similar to those of a teacher.

In 1997, respondent created the position of district-wide Social Studies chairperson for grades K-12 and appointed Dorothy Wohl to that position effective July 1, 1997. By letter dated September 23, 1997, petitioner notified then Superintendent Anthony Cavanna of her belief that she was entitled to the position of Social Studies chairperson for the 1997-1998 school year. By letter dated October 15, 1997, respondent informed petitioner that her request for appointment to that position was denied in light of her retirement and the fact that the current position was dissimilar from her abolished position, among other reasons.

In January 1998, petitioner commenced an Article 78 proceeding in Nassau County Supreme Court seeking appointment to Ms. Wohl's position with full back pay and benefits. Respondent moved to dismiss the appeal as untimely and for failure to exhaust administrative remedies pursuant to Education Law "310. By Order dated June 15, 1998, the Supreme Court granted respondent's motion to dismiss the appeal as untimely. Petitioner appealed and on September 27, 1999, the Appellate Division reversed, determining that the appeal was timely commenced and directing that the Supreme Court consider the issue of exhaustion (Donato v. Bd. Of Educ., 264 AD2d 843 [2d Dept 1999]). By Order dated February 18, 2000, Justice John DiNoto denied respondent's motion to dismiss, stating that Education Law "310 "allows, but does not mandate" an appeal to the Commissioner of Education, and thus a party may seek court review directly by an Article 78 proceeding.

By Order and Judgment dated September 6, 2000, Justice DiNoto dismissed the proceeding under the doctrine of primary jurisdiction, determining that petitioner should have first appealed to the Commissioner, as he "is uniquely suited to resolve the matter and . . . possesses the specialized knowledge and experience required to determine the factual issue of whether the subject chair positions were similar."

Petitioner then moved to reargue the Court's determination, arguing, inter alia, that Justice DiNoto's Order of February 18, 2000, permitting petitioner to pursue an Article 78 proceeding, precluded dismissal on the ground of primary jurisdiction. By order dated December 20, 2000, the Court upheld its original decision. Petitioner also appealed the Court's Order and Judgment dated September 6, 2000, and on August 20, 2001, the Appellate Division, Second Department, determined that the Supreme Court had properly dismissed petitioner's appeal based on the doctrine of primary jurisdiction (Donato v. Bd. of Educ., ___ AD2d ___, 729 N.Y.S. 2d 187 [2d Dept 2001]).

Petitioner initiated the instant petition to the Commissioner on January 19, 2001 (prior to perfecting her appeal to the Appellate Division). Petitioner seeks reinstatement to the position of district-wide Social Studies chairperson with back pay, seniority and other benefits. Petitioner argues that Education Law "3013 required respondent to offer her the newly created position of Social Studies Department chairperson. She also asserts that she is entitled to that position pursuant to the Supreme Court's decision in her first Article 78 proceeding in 1995, in which the Court determined that petitioner was "entitled only to a hiring preference for position as Chairperson" (emphasis in original).

Respondent asserts that petitioner is not entitled to appointment as the district-wide Social Studies chairperson under Education Law "3013(3) for several reasons: she had been removed from the preferred eligible list in 1992; she had voluntarily retired; and the position from which petitioner was excessed in 1991 is dissimilar in function and scope from the position to which she seeks appointment. Respondent also argues that the appeal is untimely.

I will first address the issue of timeliness. An appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner initiated this appeal on January 19, 2001. Respondent asserts that the petition is untimely because it was not commenced within 30 days of the district's failure to appoint petitioner to the newly created position of district-wide chairperson in September 1997, or within 30 days of the district's October 15, 1997, notification to petitioner that her request for appointment to the position was denied.

An unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of DeBowy, 41 Ed Dept Rep ___, Decision No. 14,648; Appeal of R.W., 40 id. ___, Decision No. 14,580; Appeal of Goltz, 40 id. ___, Decision No. 14,571). In the instant case, the Supreme Court dismissed petitioner's Article 78 proceeding on September 6, 2000. Respondent argues that even if petitioner is permitted to commence this appeal after litigating in court, she should have filed this petition by October 6, 2000, rather than four months later on January 19, 2001. However, petitioner chose to reargue the Supreme Court's September 6 determination, and the Court did not issue its decision until December 20, 2000. Moreover, petitioner also pursued an appeal to the Appellate Division, Second Department, which did not render a decision until August 20, 2001. Under these circumstances, therefore, I decline to dismiss petitioner's appeal as untimely.

The appeal, however, must be dismissed on the merits. First, it appears from the record that petitioner retired in June 1993. The Commissioner has previously determined that retirement should have the same effect as a resignation with acceptance of termination benefits on one's right to remain on a preferred eligible list, namely that retirement amounts to a formal and presumably permanent withdrawal from the teaching profession and justifies the hiring of a different candidate for a position (Appeal of Morehouse, 37 Ed Dept Rep 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; aff'd 268 AD2d 767; lv to appeal den 95 NY2d 751). In other words, statutory recall rights do not survive an individual's formal retirement. Thus, petitioner had no entitlement in 1997 to appointment as the district-wide chairperson, having retired in 1993.

I also find that petitioner is not entitled, as she asserts, to the chairperson position pursuant to the Supreme Court's 1995 decision. As Justice DiNoto stated in his September 6, 2000, decision:

. . .the Petitioner's reliance on Judge Ain's decision [] is unavailing. While Judge Ain states in his opinion that the Petitioner is "entitled only to a hiring preference for a position as chairperson" [], he is referring only to the Mattlin Middle School position. The decision is dated August 31, 1995, and, beyond strained subjective reasoning, it cannot be concluded that the decision in any way referred to the district-wide position sought by the Petitioner.

I agree that the 1995 Supreme Court decision does not compel petitioner's appointment to the position at issue.

Petitioner is also not entitled to appointment as the district-wide chairperson under Education Law ' 3013(3), which governs the rights of a former employee to re-employment. Paragraph (a) of that subdivision provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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.

Thus, 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 County BOCES, 96 AD2d 1028). The test of whether the two positions are in fact "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in her former position (Greenspan, supra; Appeal of DeBowy, 41 Ed Dept Rep ___, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923; Appeal of Elmendorf, 36 id. 308, Decision No. 13,733). Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.; Appeal of Schwarz, 28 id. 101, Decision 12,045; judgment granted dismissing petition to review, Sup. Ct., Albany Co., Special Term, [Cheeseman, J.] May 2, 1989, n.o.r.; aff'd 163 AD2d 715; aff'd 78 NY2d 938 [1991]); Appeal of Gworek, 21 id. 501, Decision No. 10,769).

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 (Appeal of Debowy, supra; Appeal of Jordan, supra). However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Heath, supra; Appeal of Langton, 28 Ed Dept Rep 146, Decision No. 12,060; Matter of Elkins, 14 id. 193, Decision No. 8,934). In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Kelly v. Ambach, 83 AD2d 733; Appeal of Heath, supra; Appeal of Schwarz, supra).

In the instant case, the record does not clearly indicate the tenure area of the new position. Petitioner states that both positions are in the same tenure area, whereas respondent does not address the issue. Neither party submitted actual job or tenure area descriptions, so I cannot determine with certainty the tenure areas of the two positions.

Respondent asserts that petitioner's prior position is dissimilar to the district-wide chairperson position in that more than 50% of the functions of the new position were not functions performed by petitioner in her old position. Respondent maintains that the fact that the district-wide position requires a School District Administrator (SDA) certification, whereas the Mattlin position required a School Administrator and Supervisor (SAS) certification, demonstrates a significant enough distinction between the two positions so as to make them dissimilar.

Respondent argues further that because the new district-wide chairperson position encompasses petitioner's former position, plus the other middle school and high school positions abolished at that time (not to mention many additional duties), that demonstrates that the new position is more than 50% dissimilar from petitioner's former position. Indeed, respondent asserts that while serving in her old position, petitioner couldnot have performed several of the functions of the new position.

Specifically, respondent states that petitioner previously served as chairperson only of the Mattlin Middle School for grades 5-8, where she was one of three social studies chairpersons in the district (there was also one at the high school for grades 9-12, and one at the other district middle school, for grades 6-8). Respondent contends that the Mattlin position precluded petitioner from responsibility for grades K-4 and grades 9-12, and from supervising the students and teachers in the district's other schools (especially the other middle school and high school). Additionally, at Mattlin, petitioner was required to perform administrative and teaching functions, which would have precluded her from being a full-time administrator and supervisor, as the new position required.

Furthermore, according to former Superintendent Cavanna, at Mattlin, petitioner supervised only three teachers, reported to the Mattlin principal and assistant principal, and was subject to their direction and supervision. Her work year consisted of a teacher's calendar plus five days, she taught a minimum of three classes (until the fall of 1990, when she reduced her class load to two), and was responsible for preparation for those classes.

In contrast, Mr. Cavanna and Ms. Wohl aver that not only is the new district-wide chairperson responsible for all thirteen grades and seven schools in the district, but the incumbent is a full-time administrator and has no responsibility to teach or prepare any classes. The new district-wide chairperson supervises twenty-three teachers, reports to the assistant superintendent, is a member of the high school principal's and superintendent's cabinets, and is responsible for district-wide curriculum, staff development, teacher training, budgeting, screening, interviewing and recommending prospective social studies teachers, all social studies assessments, and the development of five Advanced Placement courses. The work year consists of eleven months plus five days. The district-wide chairperson does programming over the summer months, setting up teacher's programs, determining which teacher teaches which course and on what level, and is responsible for seventy-four courses taught at the high school alone. Consequently, respondent asserts that at least 50% of the district-wide chairperson's work is performed at the high school, whereas all of petitioner's position was performed at Mattlin.

Petitioner maintains that the only distinction between her former position and the new position is an expansion of grade level responsibilities. She contends that contrary to the facts alleged in Ms. Wohl's affidavit, she reported to the assistant superintendent; participated in summer curriculum and other projects for all grades; supervised not three but up to fifteen teachers; developed courses at the Middle School level comparable to Advanced Placement courses; participated in the selection of teachers; and was a member of the middle school principal's and superintendent's cabinets. Furthermore, petitioner argues that in her first court proceeding in 1995, wherein petitioner was seeking a teaching position, respondent conceded that 62.5% of her duties were supervisory.

After comparing the information in the record regarding the duties associated with each of these positions, I find that petitioner has not met her burden of proving that the duties of her former position as Mattlin Social Studies chairperson for grades 5-8 are more than 50% similar to the newly created position. While I agree with petitioner that her prior position encompassed supervisory duties, that fact alone is insufficient to prove that the two positions are similar. The nature of those supervisory duties must be examined, and having done so, I conclude that the two positions are not similar within the meaning of Education Law "3013. I find that petitioner's subjective and unsubstantiated description of the duties she allegedly performed, compared with respondent's description of the current position, are not more than 50% similar to the district-wide chairperson position. Therefore, I conclude that petitioner is not entitled, as a matter of law, to the newly created position of district-wide chairperson.

In light of this disposition, I need not address the parties' arguments regarding whether petitioner was actually removed from the eligibility list in 1992.