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Decision No. 15,842

Appeal of GRETA KANTROWITZ from action of the Board of Education of the Uniondale Union Free School District regarding abolition of a position and placement on a preferred eligible list.

Decision No. 15,842

(October 21, 2008)

The Law Offices of Steven A. Morelli, P.C., attorneys for petitioner, Eric S. Tilton, Esq., of counsel

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Uniondale Union Free School District (“respondent”) to abolish her position and its refusal to place her in another similar position or to place her on a preferred eligible list.  The appeal must be dismissed.

Petitioner began her employment with the Uniondale Union Free School District (the “district”) in February 2000 as a half-time kindergarten coordinator and a half-time assistant principal for one of the district’s elementary schools.  Soon thereafter, petitioner was promoted to the position of administrative assistant for early childhood programs and in 2002 was granted tenure in that position.

By memorandum dated July 30, 2007, the superintendent notified petitioner that he was recommending to respondent the abolition of the position of administrative assistant for early childhood programs.  Additionally, the memorandum stated that petitioner would be placed “on a preferred eligibility list for the position in case [respondent] decides to reestablish it.”  At its meeting of August 21, 2007, respondent abolished petitioner’s position effective September 4, 2007.

Subsequently, petitioner was offered two positions within the district, but she declined both.  In late September 2007, an assistant principal position became available and petitioner was invited to apply.  Petitioner applied and was interviewed, but she was not offered the position.  A second assistant principal position became available in October 2007.  Petitioner applied for the position without invitation, but was not interviewed or considered for the position.  This appeal ensued.

Petitioner contends that her position was unlawfully abolished for discriminatory reasons and that respondent failed to place her on a preferred eligible list, to which she is lawfully entitled.  Petitioner contends that the alleged discrimination stems from one of respondent’s members who harbors racial animosity against petitioner.  Accordingly, petitioner seeks an order reinstating her with back pay and benefits, as well as damages and attorney fees.  In the alternative, petitioner seeks to be placed on a preferred eligible list pursuant to Education Law §3013.

Respondent contends that petitioner has failed to state a cause of action and that the decision to abolish her position was proper and based on sound economic reasons.  Also, respondent maintains that petitioner has failed to sustain a claim of discrimination and that the petition is untimely.  Finally, in an additional submission, respondent argues that petitioner’s claim is already being litigated in another forum and should therefore be dismissed.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioner’s position was abolished effective September 4, 2007 and she therefore had 30 days from September 4, 2007 to commence her appeal (see, e.g. 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 Chaney, 33 id. 12, Decision No. 12,959; Appeal of Bales, 32 id. 559, Decision No. 12,913).  However, this appeal was not commenced until November 9, 2007.  Petitioner argues that her lateness should be excused because she was interviewing for other positions within respondent’s school district when the appeal was due to be commenced. However, according to petitioner, her latest attempt to obtain another position occurred on or about October 2, 2007.  Therefore, I find this argument unpersuasive and dismiss the appeal as untimely.

Although the appeal is dismissed on procedural grounds, I am compelled to comment briefly on respondent’s description of the preferred eligible list on which it has placed petitioner.  The superintendent’s July 30, 2007 memorandum to petitioner informing her that he was recommending to respondent that petitioner’s position be abolished, states that petitioner will be placed on a preferred eligible list “for the position in case the Board decides to reestablish it.”  However, Education Law §3013(3)(a) 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 or she has filled.

Therefore, petitioner is entitled to be placed on a preferred eligible list not just for the position she held which was abolished, but also for any position similar to the one which she held.  Accordingly, I remind respondent to ensure its compliance with this provision.

In view of this disposition, I need not address the parties’ remaining contentions.