District properly laid off teacher |
On Board Online • October 15, 2012
By Kimberly A. Fanniff
Associate Counsel
When a district abolishes a position, the teacher with the least seniority in the tenure area is excessed and placed on a preferred eligible list for reinstatement to a similar position in the tenure area of service. In Appeal of Scarpinati de Oliveira, a laid-off first grade teacher claimed the district improperly calculated her seniority by excluding maternity leave she took pursuant to the Family Medical Leave Act (FMLA).
The petitioner also argued that the district improperly excluded two sixth-grade teachers from the elementary tenure area and that one of those teachers was actually the least senior teacher in the elementary tenure area.
Despite finding that the two sixth-grade teachers, Goodwin and Murphy, were part of the elementary tenure area, the commissioner of education determined the petitioner still was the least senior teacher because her time on maternity leave under the FMLA did not increase her seniority.
Under the FMLA, an employee may – but is not entitled to – accrue any additional benefits or seniority during unpaid FMLA leave. And under New York law, it is well settled that days spent on unpaid leave of absence may not be included in determining seniority.
Therefore, the teacher’s 23 days of maternity leave were properly excluded from her seniority calculation. Based upon the record, that meant petitioner served 23 less days than Goodwin and at least three less days than Murphy and was properly excessed by the district.
The district sought to have the appeal dismissed because the teacher had declined reappointment to a new elementary position as a kindergarten teacher, making her appeal moot. But according to the commissioner, the appeal was not moot. The fact the petitioner declined the offer of a kindergarten position did not affect her claim seeking reinstatement to her first grade position with back pay on the grounds that she was improperly excessed. In determining that Goodwin and Murphy were serving in the elementary tenure area, the commissioner noted that a professional educator who devotes a substantial portion of time to instruction in the common branch subjects at the kindergarten level (including pre kindergarten) and/or in any of the first six grades is deemed to serve in the elementary tenure area.
According to the commissioner, there is no separate mathematics or English tenure area for teachers providing such instruction in the elementary grades. Furthermore, since an individual placed into an unauthorized tenure area is deemed to serve within the authorized tenure area that encompasses the teacher’s duties, both Goodwin and Murphy were deemed to be part of the elementary tenure area. The commissioner directed the district to amend its seniority list for the elementary tenure area accordingly.