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Teaching assistant alleges she was improperly laid off as she was not the least senior individual under the terms of a "memo of understanding"

Teaching assistant alleges she was improperly laid off as she was not the least senior individual under the terms of a "memo of understanding"
Appeal of Sarah T. A. McCart, Decisions of the Commissioner of Education, Decision No. 16,010

The Hoosick Falls Central School District laid off Sarah T. A. McCart from her position as a teaching assistant. McCart appealed, contending that she should not have been excess as she had greater seniority than other teaching assistants that had been retained by the District.

McCart was initially employed by Hoosick Falls as a teacher?s aide. In January 20, 2004, the board approved the appointment of the district?s teachers? aides, including McCart, as teaching assistants subject to a three-year probationary period. McCart was granted tenure in the tenure area of teaching assistant effective June 5, 2008.

In February 2009, Hoosick Falls and the collective bargaining representative for the support staff agreed to a ?memorandum of understanding? that "amended the order of appointment of teaching assistants" to reflect the actual length of service in the district based upon the teaching assistant?s original date of hire.*

When advised that ?her position within the district was abolished,? McCart filed a grievance alleging that she was improperly terminated from the district because she was not the least senior within the tenure area of teaching assistant based on length of service in the district.

Essentially McCart argued that the seniority list used to determine the order of layoffs at the March 17, 2009 board meeting did not list teaching assistants by their actual length of service within the district, as required by the Memorandum of Agreement. Instead, said Mc.Cart, the seniority list used their date of appointment as a teaching assistant.

In response to McCart?s appeal to the Commissioner, Hoosick Falls argued that McCart failed to state a cause of action because (1) she was the least senior individual in the teaching assistant tenure area; (2) McCart?s appeal was untimely filed; and that (3) McCart failed to join necessary parties in her appeal.

The Commissioner never addressed the merits of McCart?s appeal, ruling that McCart?s appeal was untimely. Such an appeal ?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.? Finding that McCart commenced her appeal more than 30 days after the school board?s decision ?and offers no good cause for her delay,? the Commissioner dismissed her appeal as untimely.

In addition, the Commissioner ruled that the appeal failed to join necessary parties, i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of McCart. Such an individual, said the Commissioner, ?is a necessary party and must be joined as such.?**

In any event, it should be noted that any ?Memorandum of Understanding? such as the one referred to in McCart?s appeal must otherwise be consistent with law.

As noted in NYPPL?s Layoff Guidebook [see below], the Education Law provides that in the event a board of education abolishes a position the services of the tenured teacher having the least seniority in the school district or BOCES ?within the tenure area of the position abolished shall be discontinued.?

This element ? seniority ? cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.

In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

This was the problem in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first.

Plattsburgh won an order prohibiting arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

* This appears to be an attempt to track the ?seniority? provision set out in Civil Service Law §80 which provides, in pertinent part, that in the event an individual is to be suspended or demoted as a result of the abolition or reduction of positions, such suspension or demotion ?shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs ?.?

** The Commissioner noted that there are three teaching assistants that McCart alleges had less seniority: Patricia Laporte, Theresa Bugbee and Terry Hinchliffe. As McCart?s request for reinstatement could affect their status as teaching assistants, they, said the Commissioner, are all necessary parties to this appeal.

[For information about PELP's e-book concerning Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/ ]

Full post as published by New York Public Personnel Law on February 05, 2010 (boomark / email).