Appeal of JAMES F. KOLESSAR from action of the Pawling Central School District, the Board of Education of the Pawling Central School District, Kasey Stecher, Rebecca Ebstein, Darlene Eirish-Schofield and Luisa Dinardi regarding seniority and preferred eligibility rights.

Decision No. 17,035

(January 27, 2017)

Richard E. Casagrande, Esq., attorney for petitioner, A. Kathya Stephenson, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Pawling Central School District (“respondent district”) and the Board of Education of the Pawling Central School District (“respondent board”) (collectively referred to as “respondents”) to deny petitioner tenure in the area of English 7–12 and terminate his employment with the district.  The appeal must be dismissed.

Petitioner began his employment with respondent district with a probationary appointment as an alternative education teacher in the middle grades tenure area, effective September 1, 2007 through August 31, 2009.  At that time, petitioner had certifications in the areas of Middle Childhood Education (Grades 5-9) and Childhood Education (Grades 1-6).  By virtue of a “Juul agreement,” petitioner and respondent district agreed to extend petitioner’s probationary term to August 31, 2010.  Petitioner was granted tenure in the middle grades tenure area at the May 24, 2010 meeting of respondent board, effective August 31, 2010.  As a result of budgetary constraints, respondent district reduced petitioner’s position in the middle grades tenure area to part-time and subsequently eliminated the position on June 6, 2011.  Petitioner was placed on the preferred eligibility list for recall in the middle grades tenure area.

Thereafter, petitioner received certification in English Language Arts (5-9) and subsequently received a new probationary appointment in the English 7-12 tenure area, effective September 1, 2011.  Petitioner received a “Notice of Probationary Appointment” stating that his new probationary term would be for two years, effective September 1, 2011 to August 31, 2013.  Petitioner served in the position for the 2011–2012 and 2012–2013 school years.  By letter dated April 11, 2013, respondent district’s interim superintendent notified petitioner that he would not be recommended for tenure in the English 7-12 tenure area at the end of the school year.  During a meeting of respondent board on May 21, 2013, the board voted to discontinue petitioner’s probationary service, effective June 24, 2013.

On or about October 1, 2013, the Pawling Congress of Teachers, on behalf of petitioner, filed a Level I grievance asserting that respondent district violated a provision of the collective bargaining agreement by failing to consider petitioner’s annual professional performance review (“APPR”) in the decision to terminate his employment, as required by provisions of the collective bargaining agreement and by Education Law §3012-c.[1]  At the time of the filing of this appeal, the grievance was at Level III of the grievance procedure.

Petitioner contends that he acquired tenure by estoppel on or about September 1, 2012 in the English 7-12 tenure area.  Petitioner reasons that, as his previous tenure in the middle grades tenure area entitled him to a shortened two year probationary term, his service during the 2008-2009 school year in which he devoted a substantial portion of his time to instruction in the English 7-12 tenure area should be counted towards the two year probationary term, thereby leaving only one more year to be served at the time of his probationary appointment in September 2011.  Petitioner argues that, as a result of acquiring tenure by estoppel on or about September 1, 2012, his termination in May 2013 was improper in that he was not afforded the protections and due process required by Education Law §3020-a.

Additionally, petitioner contends that the filing of the grievance in October 2013 does not constitute an election of remedies as the relief sought in each of the forums was separate and distinct.  Finally, petitioner argues that he did not waive his right to tenure by signing the Notice of Probationary Appointment in August 2011 as he was not aware of his previously earned seniority credit for his service in the English 7-12 tenure area, he was not afforded the opportunity to consult with counsel prior to signing, and the letter did not advise him that he was waiving his tenure and seniority rights for his previous service.

Respondents maintain that petitioner was properly terminated. Respondents claim that petitioner could not have served simultaneously in the middle grades and English 7-12 tenure areas due to the nature of the two tenure areas, specifically because the middle grades tenure area is appropriate only in school settings in which the core subjects have not been departmentalized.  Respondents further contend that, even if petitioner were able to accrue seniority in both areas simultaneously, he was not qualified to accrue seniority in the English 7-12 area as he was not certified in either the English 7-12 or the English Language Arts (Grades 5-9) certification areas in the 2008-2009 school year.  Alternately, respondents contend that petitioner fails to meet his burden of showing that he devoted a substantial portion of his time during the 2008-2009 school year to instruction in the English 7-12 area.  For all of the above reasons, respondents assert that the appeal must be dismissed.

It is well-settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Stephenson, 51 Ed Dept Rep, Decision No. 16,329; Appeal of Klein, 43 id. 305, Decision No. 15,003; Appeal of Chichester, 39 id. 470, Decision No. 14,286).  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066).  Petitioner filed this appeal in December 2013, having already filed a Level I grievance relating to respondent district’s failure to provide petitioner with his final annual professional performance review prior to termination.  The primary relief sought by petitioner in the grievance was an additional year’s service.  The relief sought in the instant appeal is a declaration of tenure by estoppel and reinstatement to his prior position with back pay and benefits.  I find that the relief sought here is not the same or similar to the relief sought in the grievance and, as such, I decline to dismiss this appeal on election of remedies grounds.

As used in Part 30 of the Rules of the Board of Regents, a substantial portion of an educator’s time means 40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).  Petitioner contends that he spent 40 percent or more of his time performing duties in the English 7-12 tenure area during the 2008-2009 school year, and respondent erred in not affording him seniority credit in the English 7-12 tenure area.  Respondent contends that petitioner cannot accrue seniority in two areas simultaneously for instruction of the same group of students in the same class.

In an appeal to the Commissioner, a 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  As I have previously held, a teacher cannot be credited with working in two tenure areas during the exact same time period with the same student(s)(see 8 NYCRR §30-1.9; Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  The middle grades tenure area, by definition, applies when instruction in the core academic subjects is not departmentalized and encompasses instruction in the common branch subjects at the seventh and/or eighth grade levels (8 NYCRR §30-1.6).  The English 7-12 tenure area is an academic tenure area limited to teachers who teach a core academic subject in a grade in which instruction is departmentalized (8 NYCRR §30-1.7).  Accordingly, petitioner cannot be credited with seniority in both the middle grades tenure area and the English 7-12 tenure area for teaching the same students in a grade that is either departmentalized or not, it cannot be both.  I note that, while it is possible for an individual to earn credit towards two different tenure areas simultaneously where a substantial portion of his or her time is spent in two different tenure areas (8 NYCRR §30-1.9[a],[b]), that is not the situation in petitioner’s case.

In support of his argument that he served in the English 7-12 tenure area in the 2008-2009 school year, petitioner submits only a copy of his class schedule without any additional documentation.  Petitioner’s schedule indicates that he spent 80 minutes providing instruction in English 7 and English 8, 80 minutes providing instruction in social studies, and another 120 minutes in study lab every other day.  Petitioner has neither alleged not proven that he taught English in a departmentalized grade in 2008-2009, which is a prerequisite to serving in that tenure area.  Indeed, he does not allege that he was illegally placed in the middle grades tenure area in 2008-2009, that he was illegally granted tenure in that tenure area, or that the abolishment of his tenured position in the middle grades tenure area on June 6, 2011 was unlawful.  Instead, he argues that he should be granted both tenure and seniority credit for his alleged service in the English 7-12 tenure area in 2008-2009 and therefore has acquired tenure by estoppel and earned a year of seniority credit in the English 7-12 tenure area.  However, petitioner has not proven that he served in the English 7-12 tenure area in 2008-2009 and, therefore, he is not entitled to either tenure or seniority credit in that tenure area for 2008-2009.

In any event, I also agree with respondent that petitioner cannot claim credit toward tenure during a period in which he taught a subject he was not qualified to teach.  Unlike petitioner in Appeal of Tyner, 56 Ed Dept Rep, Decision No. 17,011, petitioner is not claiming seniority credit in the context of an abolished position pursuant to Education law §§2510(2) or 3013(2), but rather he is claiming that he acquired tenure by estoppel in the English 7-12 tenure area.  It is fundamental that a teacher who is not qualified to teach in a position is not competent to teach that subject and may not obtain tenure in that position (see Education Law §3012[2]; Ricca v. Bd. of Educ. of City School Dist. of the City of New York, 47 NY2d 385; Matter of Abdallah v. Bd. of Educ. of Massena Central Schools, 61 AD2d 1096).  In this case, petitioner did not obtain certification to teach English 7-12 until September 1, 2011 and cannot claim tenure credit for teaching in the English 7-12 tenure area prior to that date.

Therefore, upon review of the record before me, I find that petitioner has not met his burden of proof in showing that he had acquired tenure by estoppel prior to his termination by respondent district.  Nor has petitioner proven that he was denied due process when respondent discontinued his services on May 21, 2013 without conducting a hearing under Education Law §§3012(2), 3020 and 3020-a.  Contrary to petitioner’s arguments, he did not have tenure on May 21, 2013 and was a probationary English 7-12 teacher who was terminated before the expiration of his probationary term.  It is well-settled that a probationary teacher, generally, may be dismissed without an evidentiary hearing (Board of Regents v. Roth, 408 U.S. 564; Matter of Bergstein v. Board of Educ., Union Free School Dist No. 1, 34 NY2d 318; Yanuff v. Commissioner of Educ., 66 AD2d 919; Appeal of Charland, 32 Ed Dept Rep 291, Decision No. 12,833; Appeal of Benn-Abbey, 32 id. 141, Decision No. 12,785).  Petitioner has neither alleged nor proven that the reasons for his termination were stigmatizing and that they have been disseminated, which he would need to do to be entitled to a name-clearing hearing (see e.g. Board of Regents v. Roth, 408 U.S. 564).  Petitioner has failed to meet his burden of proving that his termination was improper and the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE