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Teacher Who Was Encouraged by the Superintendent to Resign Her Tenured Teaching Position to Take A Library-Position Which Was Subsequently Eliminated Did Not Thereby Voluntarily Waive Her Seniority Rights—She Was Entitled to Reinstatement In Her Tenured Teaching Position With Back Pay

The Third Department determined that a teacher (petitioner) who, at the request of the school superintendent resigned her teaching position to take a library media specialist (LMS) position, did not waive her seniority rights.  After the LMS position was eliminated and petitioner was terminated, petitioner brought an Article 78 proceeding to reinstate her as a tenured teacher. Supreme Court granted the petition and the Third Department affirmed:

Respondents maintain that Supreme Court erred in finding that the termination of petitioner’s employment was arbitrary and capricious and irrational, inasmuch as petitioner freely waived her seniority rights when she resigned from her position as an English teacher. Although an employee may waive his or her seniority rights by resigning or retiring, “such a relinquishment must be knowing and voluntary” … . An effective waiver of such rights must be free from any indicia of duress or coercion … .

The record demonstrates that, when petitioner was encouraged by the interim Superintendent to take the LMS position, she expressed her reluctance to leave her position as an English teacher and asked if she could take a leave of absence rather than resign. The interim Superintendent indicated that a leave of absence would not suffice and that petitioner’s resignation was required. After tendering her letter of resignation, which the Board accepted a month after appointing her to the LMS position, petitioner received a longevity pay increase, continued to accrue sick and personal leave time that had carried over from her English teaching position and also received a severance payment from the District that would not have been made if petitioner had voluntarily severed her employment. Notably, when petitioner moved into the LMS position, she assumed such position without any interruption in service … . Where, as here, an employee does not take the necessary “affirmative steps to terminate all aspects of his or her employment by a school district,” no waiver of seniority and tenure rights will be found … . Accordingly, as the Commissioner’s dismissal of petitioner’s appeal was arbitrary and capricious and lacking a rational basis, Supreme Court’s judgment annulling that determination shall remain undisturbed … . Matter of Kwasnik v King, 2014 NY Slip Op 08697, 3rd Dept 12-11-14

 

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