Appeal of TABITHA WOODY from action of the Board of Education of the City School District of the City of Rochester regarding abolition of her position and seniority rights.

Decision No. 17,855

(June 22, 2020)

               Rochester City School District Department of Law, attorneys for respondent, Alison Moyer, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rochester to abolish her position and terminate her employment.  The appeal must be dismissed.

Petitioner began her employment with respondent’s district in 1999 as a special education teacher.  In 2013, petitioner was appointed to the position of Coordinating Administrator of Special Education (“CASE”) and granted tenure.  The CASE position was a building-level administrative position within the “Bracket IV” tenure area.[1]

On June 20, 2019, respondent passed a resolution abolishing all 20 CASE positions within the district, effective June 30, 2019.  Respondent placed the individuals then serving in those positions – including petitioner – on a preferred eligibility list, ranked by length of service as professional educators within the district.

Shortly thereafter, respondent began hiring for a new district-level position within the “Bracket III” tenure area, Associate Director of the Committee on Special Education (“Associate Director of CSE”).  Petitioner applied for this position and was interviewed but not selected.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 10, 2019.

Petitioner argues that her duties as a CASE were “very similar” to the duties of the newly created Associate Director of CSE position and, thus, she is entitled to be appointed to that position pursuant to Education Law §3013(1).  Petitioner further avers that respondent improperly hired individuals who have less seniority than her for the Associate Director of CSE position.  For relief, petitioner requests appointment to the Associate Director of CSE position with back pay and seniority.

Respondent contends that the appeal must be dismissed as untimely and for failure to join necessary parties.  Respondent further asserts that its determinations to abolish petitioner’s position as a CASE and not to appoint petitioner to the position of Associate Director of CSE were not arbitrary or capricious.  Respondent further asserts that petitioner remains on the preferred eligibility list for Bracket IV administrators and is third on this list.

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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  In cases in which a tenured employee claims that his or her services have been discontinued in violation of Education Law §3013(2) because he or she is not the least senior employee in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition (see e.g. Appeal of Murphy, 57 Ed Dept Rep, Decision No. 17,234; Appeal of Gordon, 53 id., Decision No. 16,582; Matter of Boykin, 15 id. 348, Decision No. 9,204; Matter of Elkins, 14 id. 193, Decision No. 8,934).  Where the alleged wrong is that another employee has been appointed to a position in violation of the petitioner’s preferred eligibility rights, however, the petitioner does not become aggrieved until the date that such other person commences service in the position at issue (Appeal of Gimbrone, 56 Ed Dept Rep, Decision No. 17,036; Appeal of Gordon, 53 id., Decision No. 16,582; Appeal of Dickinson, 50 id., Decision No. 16,082; Appeal of Petkovsek, 48 id. 513, Decision No. 15,933).  This would apply, for example, to a claim under Education Law §3013(1) that a school district has created a new position to which the petitioner is entitled or a claim under Education Law §3013(3) that the petitioner is entitled to reinstatement to a particular position from a preferred eligibility list (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Gordon, 53 id., Decision No. 16,582).

Here, petitioner contends that respondent failed to appoint her to the newly created Associate Director of CSE position in violation of Education Law §3013(1).  Therefore, her timeframe to commence this appeal began on the date that an employee began serving in that position in alleged violation of petitioner’s seniority rights.  According to the exhibits submitted by petitioner, numerous individuals began serving in the Associate Director of CSE position as of July 1, 2019, including several individuals whom petitioner identifies as having less seniority than her.  Petitioner thus became aggrieved on July 1; however, she did not serve the petition upon respondent until August 27, 2019 – well in excess of her 30-day window to commence an appeal.  Because petitioner fails to set forth any good cause for such delay in the petition, the appeal must be dismissed as untimely (8 NYCRR §275.16; cf. Appeal of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082 [untimely commencement of appeal excused where board of education did not directly inform petitioner of a vacancy and petitioner did not gain actual knowledge of another employee’s appointment to contested position until six months later]).

I note that, even if the appeal were timely, it would be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

If I were to accept petitioner’s argument that she is entitled to the position of Associate Director of CSE and find in her favor, such determination would adversely affect the employment rights of the least senior employee currently serving in that title.  Therefore, the least senior employee currently serving in the Associate Director of CSE title is a necessary party to this appeal.  Although petitioner has identified numerous individuals serving in the Associate Director of CSE position whom she claims have less seniority than her, she failed to name any such individuals in the caption of the appeal or serve them with copies of the petition.  Thus, even if petitioner had timely commenced this appeal, it would be dismissed for failure to join a necessary party (see Appeal of Murphy, 57 Ed Dept Rep, Decision No. 17,234; Appeal of McDougall, 53 id., Decision No. 16,505).

In light of the above, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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