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Decision No. 14,912

Appeal of BONNIE L. BARKLEY from action of the Board of Education of the Penn Yan Central School District regarding a substitute teaching assistant position.



(July 28, 2003)


The Law Firm of Frank W. Miller, attorneys for respondent,

     Frank W. Miller, Esq., of counsel


Petitioner challenges certain actions of the Board of Education of the Penn Yan Central School District ("respondent") relating to a substitute teaching assistant position.  The appeal must be dismissed.

On March 22, 2002, respondent posted a notice seeking applicants for the position of long-term substitute teaching assistant at respondent"s middle school computer lab.  The posting stated that the position would be available from April 22 until June 30, 2002.  Petitioner applied for the position on March 27, 2002.

On April 23, 2002, petitioner, who previously served as a substitute teacher for respondent on a number of occasions, started substituting in the teaching assistant position on a per diem basis.  On April 29, 2002, a middle school committee interviewed petitioner and two other candidates for the long-term position.  On that day, the middle school"s principal verbally informed petitioner that the committee would recommend that respondent approve petitioner for the long-term position. Subsequently, the superintendent recommended that respondent appoint petitioner.

Petitioner continued in the position on a per diem basis at the teaching assistant rate of pay until respondent"s May 29, 2002 meeting.  At that meeting, respondent"s president requested a resolution that petitioner be hired for the position for the period ending June 30, 2002.  However, none of respondent"s members made such a motion.  Accordingly, respondent"s president tabled the motion. During the meeting, respondent"s members did not explain their failure to make the motion.

On May 30, 2002, respondent"s superintendent and the middle school principal met with petitioner.  The middle school principal informed petitioner that respondent would not continue to employ her in the position because respondent did not act on the resolution to appoint her.

Petitioner commenced this appeal on or about June 27, 2002.  She asserts that she was entitled to remain in the teaching assistant position until June 30, 2002.  She also contends that because she is a certified teacher, respondent should have paid her the rate normally paid to certified teachers rather than the rate paid to teaching assistants.  Petitioner seeks the amount of pay she would have received if she was permitted to remain in the position until June 30, 2002, additional back pay, and employment with respondent as a full-time tenured teacher.

Respondent contends that petitioner has failed to allege a statutory or contractual basis for her claimed entitlement to remain in the position.  Respondent further asserts that at all times it paid petitioner the required rate of pay.  Respondent also raises several procedural defenses.  It asserts that to the extent petitioner"s claims relate to matters occurring more than 30 days before she commenced the appeal, the claims are barred by the statute of limitations. Respondent also argues that petitioner"s claims are barred by the doctrines of resjudicata and/or collateral estoppel based on claims petitioner has filed in small claims court and the New York State Division of Human Rights.  Respondent further contends that petitioner"s claims are barred because, after the events described herein, respondent determined that petitioner had falsified an application for employment with the school district.  Finally, respondent asserts that the Commissioner is without jurisdiction to award some of the relief requested by petitioner, and that the petition was improperly served.

I must first address two procedural issues.  The caption in the petition in this matter refers to respondent"s "superintendent", but does not state his name.  There is no evidence in the record that the petition was personally served on the superintendent.  Where a petitioner fails to serve an individually named respondent, claims against that respondent individually must be dismissed  (Appeal of Lander, et al., 42 Ed Dept Rep __, Decision No. 14,822).  Accordingly, to the extent petitioner asserts any claims against the superintendent individually, they must be dismissed for lack of personal service.

The petition appears to limit the issues raised in this appeal to those related to the substitute teaching assistant position discussed above.  However, petitioner has submitted voluminous materials referring to various adverse employment actions respondent has allegedly taken against petitioner over a period of several years.  These actions all occurred more than 30 days prior to the commencement of this appeal.  An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner did not commence this appeal until more than 30 days after respondent"s actions, and failed to offer an explanation for the delay.  Accordingly, to the extent petitioner purports to assert claims other than those related to the substitute teaching assistant position, those portions of the appeal are dismissed as untimely.

A Board of Education has the unfettered right to terminate a substitute teacher or teaching assistant"s employment for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason, or in violation of a statutory or contractual proscription (see, Appeal of Martin, 25 Ed Dept Rep 21, Decision No. 11,484; cf., Appeal of Wynne, 40 id. 521, Decision No. 14,544; James v. Bd. of Educ., 37 NY2d 891).  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which she seeks relief (Appeal of Lawson, 42 Ed Dept Rep __, Decision No. 14,826; Appeal of Tyk, 42 id. __, Decision No. 14,759.)

Petitioner has neither alleged nor established that respondent terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription.  Petitioner suggests that respondent entered into an employment contract with her for a term ending on June 30, 2002.  However, respondent never acted on the recommendation to appoint petitioner to the long-term position.  Thus, there is no basis to assert that respondent agreed to employ petitioner until June 30, 2002. Moreover, prior decisions of the Commissioner have concluded that a written notification informing an individual that the board of education has approved the individual"s employment as a substitute teacher for a set period of time does not constitute a binding employment contract (Appeal of MacPherson, 25 Ed Dept Rep 124, Decision No. 11,518; Appeal of Martin, supra.).  Thus, even if respondent had voted in favor of the recommendation, it is questionable whether this would have created an employment contract restricting respondent"s right to terminate petitioner"s employment.  Although I sympathize with petitioner"s frustration concerning respondent"s failure to articulate a reason for not acting on the recommendation to appoint petitioner to the position, I cannot conclude that respondent acted illegally.

Petitioner also claims that she should have been paid the rate of pay that respondent normally pays a certified teacher for substitute teaching for the time that she filled the teaching assistant position on a per diem basis.  Petitioner, however, fails to provide a legal or factual basis supporting this contention.  In the absence of any contractual or statutory proscription to the contrary, I find that respondent had the authority to pay the teaching assistant rate to an individual substituting for a teaching assistant even if that individual is a certified teacher.

In light of this disposition, I need not address respondent"s remaining procedural defenses.