NYC Rubber Room Reporter and ATR CONNECT: Apr 27, 2019

Saturday, April 27, 2019

Former Teacher John Joyce Wins His Job Back At the NYC Department of Education after Retirement

Richard Carranza, Houston Independent School District's superintendent, was introduced as the next New York City schools chancellor by Mayor Bill de Blasio on Monday, March 5, 2018. Photo Credit: Charles Eckert

When a teacher resigns from the NYC Department of Education, he/she can, supposedly, return within 5 years by requesting rescission of the resignation. However, while the UFT contract allows the return if requested before the 5-year time limit, the rules say that you must obtain approval of your return from the Chancellor as well (C-205). The Chancellor never, in my experience, gives approval of rescission. So, the UFT contract terms on returning to your job after resignation are not exactly correct. If you resign, it's irrevocable, 99% of the time.

Here is the relevant part of Chancellor's Regulation C-205:

23. Restoration of License Terminated for Failure to Meet Requirements – At the discretion of the Director and for good cause shown, a license other than a supervisory license which was terminated after August 31, 1974 for failure to satisfy full requirements may be restored when the applicant has satisfied the full requirements prescribed for the license, and has performed one school year or two school terms of satisfactory regular substitute or appointed service in the field of the license.

24. Dismissal for Cause, Resignation or Retirement While Charges Are Pending - This subdivision applies to persons who were dismissed pursuant to Section 3020a of the New York State Education Law or who resigned or retired while such charges were pending. All licenses and/or certificates held by such a person at the time of separation from service shall terminate permanently. No such person shall be eligible to apply for any new license or certificate, nor for reemployment by any unit of the City District or of any community school district without the recommendation of the Executive Director of the Division of Human Resources and the express written authorization of the Chancellor.

25. Discontinuance of Probationary Service or Denial of Completion of Probation – This subdivision applies to persons whose services have been discontinued during the probationary term or who have been denied completion of probation but in no way applies to those persons covered by Subdivision 24 above. Although either action results in the dismissal of the employee, neither discontinuance of probationary service nor denial of completion of probation results in termination of the individual’s license.
a. When a determination to discontinue probationary service or to deny completion of probation is reversed before actual termination of services, the employee continues to serve without interruption and there is no change in status.
b. After discontinuance of probationary service or denial of completion of probation, a non-supervisory pedagogical employee retains the license and may, upon application, be granted a certificate valid for substitute service. This certificate is valid as long as service is satisfactory and the holder indicates continuing availability for service.
c. A district other than the one which discontinued the services of a probationer or denied completion of probation may reappoint the probationer to a new probationary term although the possibility of such appointment does not convey any right to such consideration. Such appointments shall be limited to those where the minimum probationary period is no less than two full school terms or one full school year. For the purpose of determining the length of the new probationary term, each full term of service rated satisfactory under the former appointment exclusive of any period of less than a full school term shall be considered equivalent to a term of regular substitute service. For purposes of determining status in other respects, any period of non-service between termination by the first district and appointment by the second shall be considered equivalent to a leave of absence granted without right of return to prior position, without pay and without service credit for retirement.

Note: Since for this purpose, the schools operated under the jurisdiction of the Chancellor and Central Board comprise one district, persons whose probationary service was discontinued in one school in the City District may not be reappointed under the same license to another school in the City District. This is true even if the dismissal occurred from one “high school district” and the dismissed employee sought employment in a different “high school district.” Those discontinued by one Community District, however, may be appointed to a new probationary term by another Community District. Similarly, a teacher who was discontinued or denied completion of probation in a high school under central jurisdiction might be appointed to a new probationary term for service in a high school under Community District jurisdiction.

d. A dismissed probationer who previously served satisfactorily under another regular license, may request reassignment under the other license. Upon receipt of such written request by the Executive Director of the Division of Human Resources, the affected employee shall be assigned to the first appropriate vacancy. For determination of status, the period of non-service between dismissal and reassignment shall be considered equivalent to a leave of absence granted without pay, without the right of return and without service credit for retirement. A dismissed probationer who was previously tenured under another regular license shall be returned forthwith to an appropriate position.

26. Resignation - Except in the case of resignation to return to a former position, the resignation by a member of the teaching and supervising staff shall be deemed to be a resignation from the pedagogical service of the public school system. Thereafter, upon application, the resigned employee may be issued a certificate valid for substitute service so long as service is satisfactory and the holder indicates his or her availability for continuing service. Resignations shall be submitted in writing and, once submitted by an employee, shall be considered final. However, if there has been no break in actual service, the appointing authority may, in its discretion, permit the employee to rescind the resignation before its effective date.
a. Required Notice of Resignation
A pedagogical employee who desires to resign is required to submit written notice to the principal or equivalent organizational unit head at least thirty calendar days prior to the date on which the resignation is to take effect. (See Section 3019a of the Education Law.) Failure to submit timely notice shall preclude subsequent restoration of the license or the issuance of a substitute certificate without the specific, written authorization of the Executive Director of the Division of Human Resources.
b. Absence Without Notice
As provided by contractual agreements, any pedagogical employee who is absent without notice for twenty or more consecutive school or work days is deemed to have resigned as of the first day of such absence. Notwithstanding any other regulation, withdrawal of such a resignation may not be permitted without express written authorization by the Chancellor.

27. Return to Former Position from Present Position - Provided Section 24 of this Regulation does not apply, a person who is serving under regular license and appointment may request reassignment to a vacancy in a non-supervisory grade or salary level in which the employee served satisfactorily for at least one year or two full school terms and for which the employee was previously granted a valid license. After a receipt of such a written request, the Executive Director of the Division of Human Resources shall assign the employee to the first appropriate vacancy in the former title. In such cases, the employee shall be deemed to have resigned from his or her present position. Salary upon resumption of service in the former position shall be fixed as if all appointed service had been performed in the position to which the employee is returned. An employee who has resigned and had been returned to a former position in this manner may be permitted to withdraw such resignation in accordance with the general rules set forth in Subdivision 28 below.

28. Withdrawal of Resignation Generally – Except for persons covered by Section 24 or subdivision 26b of this Regulation, upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation for the purpose of reinstatement to service, regardless of whether the person was tenured or not on the date of his or her resignation, if:
a. at the time of resignation, the individual had completed at least one year (or two full school terms) of satisfactory, regularly appointed service under the license; and
b. the license has not been invalidated and is not subject to invalidation for failure to satisfy requirements. If the employee was untenured at the time of resignation, a three year probationary period will be required.

29. Withdrawal of Resignation Within Five Years by Tenured Staff – Except for persons covered by Section 24 or subdivision 26b of this Regulation, a non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall, remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or before the opening of school in September next following five years after the effective date of resignation. If reinstatement is made after this date, a two year probationary period will be required.

30. Substitute Service Following Resignation – Except for persons covered by Section 24 of this Regulation, a resigned employee may perform substitute service after resignation as follows:
a. Substitute service may be performed in any field for which the resigned employee holds a certificate or license valid for substitute service.
b. A resigned employee who does not hold a valid substitute credential but who met the minimum preparation requirements for licensure, may request issuance of a substitute certificate valid for substitute service in the field of any license held at resignation. After receipt of the applicant’s written request by the Executive Director of the Division of Human Resources, the applicant may be issued such a certificate valid so long as service is satisfactory and the holder indicates continued availability for service.

31. Retirement and Reinstatement – Except for persons covered by Section 24 of this Regulation, a pedagogical employee who desires to retire shall submit written notice to the principal or equivalent organizational unit head at least thirty calendar days prior to the effective date of retirement. (See Section 3019a of the Education Law.) Failure to submit such timely notice shall preclude subsequent restoration of the license, reinstatement to service or the issuance of a certificate valid for substitute service without the specific written authorization of the Executive Director of the Division of Human Resources.

32. Substitute Service Following Retirement – Except for persons covered by Section 24 of this Regulation, a retired employee may perform substitute service after resignation as follows:
a. Substitute service may be performed in any field for which the retired employee holds a valid substitute credential.
b. A retired employee who does not hold a valid substitute credential but who met the minimum preparation requirements for licensure, will be issued a certificate valid for substitute service in the field of any license held at retirement. After receipt of the applicant’s written request by the Executive Director of the Division of Human Resources, the applicant may be issued such a certificate valid so long as service is satisfactory and the holder indicates continued availability for service.

Note: Paid employment by the Board of Education is subject to the income limitations imposed upon retirees by Sections 211 or 212 of the New York State Retirement and Social Security Law. Any retiree contemplating employment by a New York City or New York State Agency which may generate substantial income must consult with the retirement system of which the retiree is a member to ensure compliance with the law. Failure to do so may result in interruption or reduction of the retirement allowance which the retiree normally receives.

33. Reinstatement to Active Service Following Retirement – Except for persons covered by Section 24 of this Regulation, a retired pedagogical employee may, at the discretion of the Executive Director of the Division of Human Resources and after written request, be permitted to terminate retirement if:
a. at the time of retirement, the individual had completed at least one year (or two full school terms) of satisfactory regularly appointed service in the license under which service is to resume;
b. the license has not been invalidated and is not subject to invalidation for failure to satisfy academic and professional requirements;
c. the requirements and procedures specified for such cases by the Retirement System of which the applicant is a member shall have been complied with; and
d. the retired pedagogical employee who is permitted to terminate retirement and is reinstated to service shall serve a new probationary term for three years.

34. Involuntary Termination of Disability Retirement – The status of a person who has been retired for disability is subject to review from time to time by the retirement system of which the individual is a member. Upon determination by the retirement system that the person is free of disability or, in the case of accidental disability retirement, is no longer disabled as the result of an accidental injury sustained in the line of duty, the retirement system may order termination of retirement without the consent of the affected individual. After receipt of notice that disability or accidental disability retirement is to be terminated, the former employee shall be assigned to an appropriate vacancy. Generally, such reinstatement is effected no later than the opening of schools in the September following receipt of notice from the retirement system.

Tenured social studies teacher John Joyce was lucky.

On or about August 30, 2011, petitioner resigned his employment as a tenured social studies teacher with respondent New York City Department of Education (DOE). Less than a year later, on or about July 29, 2012, he submitted a request to DOE to rescind his resignation pursuant to Chancellor's Regulation C-205(29). Following an almost 4-year delay by respondents in acting on petitioner's request, and litigation between the parties, and only after petitioner filed a motion for contempt, did respondent Chancellor finally respond to and deny the request. In her letter of June 21, 2016, the Chancellor cited petitioner's unsatisfactory year-end performance rating for the 2010-2011 academic year, a determination that was ultimately annulled by this Court by decision dated May 10, 2018 (see Matter of Joyce v City of New York, 161 AD3d 488 [1st Dept 2018])

John won his case because the Judges asked, how come the Department waited 4 years to answer Mr. Joyce's request to return to the Department? Can't do that, they ruled:

Matter of Joyce v New York City Dept. of Educ.

2019 NY Slip Op 01183

Decided on February 19, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 19, 2019
Richter, J.P., Manzanet-Daniels, Kapnick, Gesmer, Oing, JJ.

8437 158793/16

[*1]In re John Joyce, Petitioner-Respondent,

v

New York City Department of Education, et al., Respondents-Appellants.

Zachary W. Carter, Corporation Counsel, New York (Nwamaka Ejebe of counsel), for appellants.

Eisner & Dictor, P.C., New York (Benjamin N. Dictor of counsel), for respondent.

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered April 5, 2017, to the extent appealed from as limited by the briefs, vacating respondents' determination, dated June 21, 2016, which denied petitioner's request for rescission of resignation, and directing respondents to accept petitioner's request, unanimously affirmed, without costs.

On or about August 30, 2011, petitioner resigned his employment as a tenured social studies teacher with respondent New York City Department of Education (DOE). Less than a year later, on or about July 29, 2012, he submitted a request to DOE to rescind his resignation pursuant to Chancellor's Regulation C-205(29). Following an almost 4-year delay by respondents in acting on petitioner's request, and litigation between the parties, and only after petitioner filed a motion for contempt, did respondent Chancellor finally respond to and deny the request. In her letter of June 21, 2016, the Chancellor cited petitioner's unsatisfactory year-end performance rating for the 2010-2011 academic year, a determination that was ultimately annulled by this Court by decision dated May 10, 2018 (see Matter of Joyce v City of New York, 161 AD3d 488 [1st Dept 2018]).
We find that good faith and fairness demand that a decision on a request for rescission of resignation pursuant to Chancellor's Regulation C-205(29) be made within a reasonable time. We reject respondents' suggestion that the Chancellor has the discretion to wait more than three years before making such a decision, without providing a reason for the delay. Supreme Court had directed DOE, in an order issued May 6, 2013, to follow its own stated procedure by accepting the rescission letter and reinstating petitioner (subject only to the Chancellor's approval, pursuant to the regulation). Respondents' delay was unacceptably long and effectively operated to subvert the court's order.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 19, 2019

CLERK

I believe that the resignation of a teacher for any reason, and the subsequent rule that anyone in good standing still must get the approval of the Chancellor in order to get employment at the Department once again is constructive termination:

"What is constructive discharge? Constructive discharge occurs when an employee is forced to quit because the employer has made working conditions unbearable. Unbearable conditions include discrimination or harassment, mistreatment, or receiving a negative change in pay or work for reasons that are not work-related. An employer who harasses an employee in order to get them to resign as opposed to firing them is one attempting a constructive discharge."