Labor & Employment Law

Offer to accept resignation in lieu of recommending denial of tenure not coercion

By Harvey Randall, Esq.

Offer to accept resignation in lieu of recommending denial of tenure not coercion
Matter of Price and the Board of Education of the Roosevelt Union Free School District, Decisions of the Commissioner of Education No. 15,573

The School Superintendent advised Carolyn J. Price that he intended to recommend that she not be granted tenure at the end of her three-year probationary period but that he would accept her ?irrevocable letter of resignation in lieu of recommending her termination.? Price accepted the Superintendent?s offer and submitted her resignation, such resignation, by its terms, to be effective June 29, 2005.

Price subsequently claimed that she was entitled to a two-year probationary period that should have ended on September 2, 2004, and therefore she had acquired ?tenure by estoppel.? She asked the Commissioner to deem her resignation a nullity and direct the District to reinstate her to her former position. The District, on the other hand, argued that Price was neither entitled to, nor acquired, tenure by estoppel, and, further, she was not entitled to reinstatement to her former position.

In resolving the appeal, the Commissioner first considered a technical objection offered by the District: Price?s appeal was untimely because it had not been submitted within 30 days ?from the making of the decision or the performance of the act complained of??

The Commissioner ruled that Price?s appeal was, indeed, timely. Price?s letter of resignation stated that it was not effective until June 29, 2005 and she remained a district employee until that date. As Price had filed her appeal within 30 days of June 29, the Commissioner rejected the District?s claim that it was untimely.[1]

As to the merits of Price?s appeal, the Commission said that she has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief.[2]

With respect to Price?s claim that she is entitled to tenure by estoppel, the Commissioner said that: Tenure by estoppel ?results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term.? He then ruled that Price did not acquire tenure by estoppel, setting out the following reasons for his determination:

The employment application Price submitted to Roosevelt merely indicated that she taught in a school in New York City from ?1996-present.?

Price had ?unambiguously responded ?no? to the question on the application of whether she had ever received tenure anywhere in New York State.?

A school district is not required ?to ferret out the nuances of a teacher?s employment history.?

The Commissioner?s conclusion: Price did not produce anything to support her claim that she acquired tenure by estoppel by reason of her being entitled to a shortened probationary period of two-years.

As to Price?s attempt to have the Commissioner invalidate her resignation on the grounds that it was obtained ?under threat and coercion,? the Commissioner said that there was nothing in the record to support her claim.

The Commissioner pointed out that the Superintendent had written Price that he was ?? willing to recommend acceptance of [her] resignation in lieu of recommending termination. Therefore, should you choose to resign rather than have your services terminated, please provide me with an irrevocable letter of resignation not later than April 13, 2005.?

Price, said the Commissioner, admitted that she elected to submit her resignation because she ?did not want to be embarrassed, did not want the children, did not want coworkers or parents or others to see such a display.?

As to Price?s claim of that she had submitted her resignation because of ?threat and coercion,? clearly the Superintendent had the statutory authority to recommend that Price not be given tenure at the end of her probationary period. In Rychlick v Coughlin, 63 NY2d 643, a case involving an effort by a correction officer to rescind the resignation he later claimed he had been coerced into submitting, the Court of Appeals said that an appointing authority?s threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges against the employee -- did not constitute coercion so as to make the resignation involuntary.

____________

[1] In New York State the general rule is that the Statute of Limitations for filing an appeal from an administrative decision begins to run when the individual receives the final determination or, if he or she is represented by an attorney, when the attorney receives the final decision.

Full post as published by New York Public Personnel Law on March 04, 2008 (boomark / email).