Seniority for thepurposed of layoff held to include both a teacher's "actual full-time servicerendered" and his or her full-time regular substitute service in the tenurearea
Education Law §2510[2] provides that a school district thatabolishes a teaching position for economic reasons must discontinue "theservices of the teacher having the least seniority in the system within thetenure of the position abolished." As this decision demonstrates, anincorrect determination with respect to which teacher is “least senior” for the purposes of layoff couldprove expensive to the school district.
A teacher [Teacher] challenged the Board of Education’s determinationthat she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law andwas arbitrary and capricious. As redress, Teacher sought "senioritycredit" for certain services as a substitute teacher that she had rendered to the District,reinstatement to her former position, and "restitution" for damagesthat she allegedly sustained as a result of the School Board's determination,which, in effect, terminated her employment.
The Appellate Division annulled the Board’sdetermination with respect to Teacher’s seniority for the purposes of layoffand it was [1] directed to award seniority credit to her for her service betweenNovember 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position asa full-time probationary teacher in the foreign language tenure area with backpay and benefits.*
The significant issue in this actionwas the criterion used in determining a teacher's seniority, i.e., the"actual full-time service rendered" including full-time regularsubstitute service in a particular tenure area prior to his or her probationaryappointment in that same area** and the rationale for equating full-timesubstitute service with full-time probationary service for seniority purposes.
The Appellate Division explained that employment as a regular substitute"constitut[es] employment by the board of education on a permanentbasis" and is "equivalent to service rendered pursuant to a probationaryappointment in contrast to an 'itinerant' or per diem substituteassigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.
The court noted that the District had argued that Teacher’sresignation severed her employment relationship with the District and that shetherefore lost all seniority accumulated prior to that time notwithstanding thefact that Teacher had agreed to "resign" in exchange for theDistrict's promise to immediately rehire her as a substitute teacher and toreappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.
Although the District was correct that a teacher whovoluntarily severs all of his or her professional relationship with a schooldistrict through retirement or resignation forfeits his or her seniority rightsunder Education Law §2510, the Appellate Division questioned whether Teacher’sresignation, under the relevant facts in this case, could be deemed to have been voluntary,noting that:
1 "Public policy" favors the protection of an employees' seniority rights;
2. Although an employee may relinquish his or her seniorityrights by resigning or retiring, such a relinquishmentmust be knowing and voluntary, i.e., the employee must take "affirmativesteps" to terminate all aspects of his or her employment by a schooldistrict and in the absence of a specific contrary intent, an employee whomerely assents to being reassigned to a different title within the same tenurearea — even under the guise of a resignation — is not deemed to have"resigned" for purposes of determining his or her seniority credit so long as the title towhich he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.
3. Neither the District nor Teacher complied with the requirementsof Education Law §3019-a ("Notice of termination of service byteachers"), which governs the formal resignation and termination ofprobationary teachers.
4. The record was devoid of any intent or affirmative act byTeacher to sever all aspects of her employment relationship with the Districtand thereby relinquish her seniority rights.
5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by eitherTeacher or the District to sever their professional relationship but instead thearrangement allowed Teacher to continue teaching in the District while herpermanent certification was pending.
6. There was no actual break in Teacher's service to theDistrict as a result of her "resignation" as the resignation waseffective at the end of the day on October 1, 2009 and the next day shereturned to the same classroom to teach the same subject to the same studentsduring the same hours.***
Accordingly, as noted earlier, the Appellate Divisionmodified Supreme Court’s ruling “on the law,” and granting Teacher’s petitionin part, annulled the District's determination, awarded Teacher seniority creditfor the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign languagetenure area, with back pay and benefits.
* N.B.The decision notes that Supreme Court held that the District was"justified in giving more seniority credit to another teacher because thatteacher had obtain … permanent certification at an earlier date.” The AppellateDivision said that "[s]eniority [for the purposes of layoff] … relatesonly to length of service" and considerations such as prior experience,training, or educational qualifications are not properly included therein.”
** Teacher’s service with the School District for thepurposed of determining her seniority within the meaning of §2510[2] of theEducation Law is set out in some detail in the Appellate Division’s decision.
*** The Appellate Divisioncharacterized Teacher’s "resignation" as essentially "a legal fictiondesigned to allow Teacher to continue her duties as a full-time Spanish teacherwhile ensuring the District's compliance with the Education Law, whichprohibits a school district from employing uncertified teachers."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00867.htm
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