ALESSI, HEATHER v. BD OF ED, WILSON CENTRAL SCHOOL DIS

Citation: Not availableDocket: CA 12-01109

Court: Appellate Division of the Supreme Court of the State of New York; February 7, 2013; New York; State Appellate Court

Original Court Document: View Document

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The Supreme Court of New York, Appellate Division, modified a prior judgment denying Heather Alessi's petition against the Board of Education of Wilson Central School District. The court annulled the District's determination that Alessi was the least senior teacher in the foreign language tenure area, ordering the District to award her seniority credit for the period from November 6, 2006, to February 10, 2010. Alessi is to be reinstated as a full-time probationary teacher in the foreign language area with back pay and benefits.

Alessi's petition was based on claims that the District's decision was legally erroneous and arbitrary. She had been employed by the District since September 2006, first as a part-time Spanish teacher and later as a full-time probationary teacher. Although she was granted tenure effective November 9, 2009, she failed the Spanish Content Specialty Test (CST) in July 2009, leading to her immediate resignation demand on October 1, 2009, as she was no longer certified. The District's Superintendent assured her of reemployment as a substitute teacher until she passed the CST, which she eventually did in December 2009.

In February 2010, the petitioner received her permanent teaching certificate and was rehired by the District as a full-time probationary Spanish teacher. During the 2010-2011 school year, the petitioner learned that her position might be eliminated due to budget cuts. According to Education Law § 2510, a district must terminate the least senior teacher when abolishing a position for economic reasons. The District identified the petitioner as the least senior teacher and notified her in June 2011 that her employment would end due to unexpected reductions in State aid.

Seniority, applicable to both probationary and tenured teachers, is determined by actual full-time service within a tenure area, including time served as a regular substitute before a probationary appointment. Full-time substitute service is treated equivalently to probationary service for seniority calculations, while per diem substitutes do not accumulate seniority. The petitioner had a continuous full-time appointment in the foreign language tenure area starting November 6, 2006, which was earlier than another teacher's appointment in September 2007. Despite title changes, her teaching duties remained consistent.

Respondents argue that the petitioner’s resignation in October 2009 severed her employment and resulted in the loss of seniority. They assert that her seniority should be calculated from February 10, 2010, when her new appointment began. The document indicates disagreement with this assertion, maintaining that her prior seniority remains valid.

A teacher who voluntarily retires or resigns forfeits seniority rights under Education Law § 2510, but such relinquishment must be knowing and voluntary, involving affirmative steps to terminate employment. Public policy favors protecting employees’ seniority rights. In this case, neither the District nor the petitioner followed the formal resignation requirements of Education Law § 3019-a. The record lacks evidence of intent by the petitioner to sever her employment relationship and relinquish seniority rights. The petitioner stated she resigned in October 2009 to maintain her employment with the District, following the Superintendent's warning that failure to resign would lead to termination. The petitioner’s agreement to "resign" was contingent upon being rehired as a substitute teacher, with an eventual reappointment to a full-time probationary position upon obtaining certification. The circumstances indicated that neither party intended to sever their professional relationship, allowing the petitioner to continue teaching while awaiting certification. Although the Superintendent referred to her as a "per diem" substitute, the record supports she was rehired as a regular substitute, which does accrue seniority rights, as she was assigned to fill in for a teacher on a definite leave of absence.

After resigning, the petitioner resumed her previous full-time teaching position at a lower pay rate, qualifying as a regular substitute teacher for seniority accrual. There was no actual interruption in her service, as she returned to teach the following day, making her resignation effectively a legal mechanism to comply with Education Law requirements regarding certified teachers. The court noted that seniority is determined solely by length of service, not by factors like prior experience or educational qualifications. Since the petitioner had a longer continuous service with the District compared to Cieslik, her seniority should be recognized, leading to the request for modification of the judgment. The court ruled to grant the petition partially, annulling the District's decision, awarding seniority credit from November 6, 2006, to February 10, 2010, and reinstating the petitioner to her former position with back pay and benefits. The court did not find it necessary to address the petitioner’s alternative argument for a trial.