New York State Supreme Court Judge Alexander Hunter (in my opinion the worst judge currently on the bench as far as teacher appeals are concerned) states that:
"Petitioner did not proceed beyond Step 2 of the
grievance process and is bound by his union's determination not to proceed.
Therefore, the petition must be dismissed for failure to exhaust all
administrative remedies.
Petitioner does not argue that the
union's determination declining to pursue further administrative remedies is
arbitrary and capricious. Nonetheless, it should be noted that this argument is
without merit. "When [petitioner] elected to follow the contract grievance
procedure, he did so knowing that his union would control the decision whether
to reach arbitration. He left that authority with them. Without a showing that
the union breached its duty [**5] of fair representation
in prosecuting the employee's grievance, its decision to conclude the grievance
process short of the final step allowed by contract or law is binding on the
employee and precludes resort to additional remedies."
So, all petitioners who dont go beyond step 2 of the grievance process with the UFT are at the end of their administrative remedies? See below for the rest of the decision.
Betsy Combier
In the Matter of the Application of James Barnes, Jr.,
Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and
Rules, -against- The Department of Education of the City of New York,
Respondent.
Index
No.: 401944/12
SUPREME
COURT OF NEW YORK, NEW YORK COUNTY
2013
N.Y. Misc. LEXIS 268; 2013 NY Slip Op 30091U
January
16, 2013, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND
WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS
CORE TERMS: grievance, administrative remedies, terminated, exhaust, binding,
statute of limitations, commence, respondent's determination, time barred,
unemployment, terminating, termination, flaws, grievance procedure, collective
bargaining agreement, aggrieved, elected, toll, letter dated, unemployment
insurance, investigator, lied
JUDGES: [*1] ALEXANDER
W. HUNTER JR., J.S.C.
OPINION
BY: ALEXANDER W.
HUNTER JR.
OPINION
Decision and
Judgment
HON. ALEXANDER W. HUNTER, JR.
Two separate motions were filed by
the parties in this action. Both motions will be decided herein. The
application by petitioner, pro se, for an order, pursuant to Article 78 of the
CPLR, to reverse respondent's determination terminating petitioner's employment
and to reinstate petitioner and make him whole, is denied. The application by
respondent for an order, pursuant to CPLR 7804 (f) & 3211, dismissing the petition, is
granted.
Petitioner was employed by the
Board of Education of the City School District of the City of New York, sued
herein as Department of Education of the City of New York ("BOE"), as
an educational paraprofessional. Petitioner worked at the P 754X school from on
or about January 3, 2000 until his employment was terminated on October 19,
2010. On February 24, 2010, Assistant Principal Daniel Hoehn contacted the
Office of the Special Commissioner of Investigation for the New York City
School District ("SCI") to lodge a complaint against petitioner. The
complaint alleged that petitioner was involved in an inappropriate relationship
with a 20-year-old female special [*2] education student
("Student A"). Petitioner was reassigned while SCI investigated the
allegations.
SCI substantiated the allegations
against petitioner in an investigation report and letter to the BOE Chancellor,
dated September 24, 2010. SCI recommended that petitioner be placed on the
"Ineligible Inquiry List" and that his employment be terminated. On
October 7, 2010, a due consideration conference was held to give petitioner a
chance to respond to the SCI report with his United Federation
of Teachers ("UFT") union representative present.
Petitioner was formally terminated and placed on the "Ineligible Inquiry
List" in a letter dated October 19, 2010. On October 21, 2010, petitioner
filed his initial grievance appeal and a Step 2 grievance appeal conference was
held on January 7, 2011. On January 21, 2011, the Chancellor's Representative
issued a grievance decision denying petitioner's grievance, finding that
"the grievant received due process and was properly terminated without
contractual violations." Petitioner appealed to the UFT union's Ad Com
Grievance Committee ("Committee") to take further action. In a
letter [**3] dated June 8, 2010, the Committee denied the
appeal and declined [*3] to take any further action on
petitioner's behalf, stating "that the Union cannot overcome the
Department of Education's argument that you were terminated for good and
sufficient reason and received due consideration." Petitioner commenced
the instant proceeding by verified petition on August 31, 2012.
Petitioner argues that
respondent's determination terminating his employment should be reversed on the
basis of the following allegations. Petitioner alleges that at an unemployment
insurance hearing held on May 5, 2011, the SCI investigator admitted to
altering petitioner's subpoenaed phone records, which were used for evidence
that petitioner had been talking to Student A. Petitioner alleges that the
witnesses for respondent lied at the unemployment insurance hearing. Petitioner
alleges that the SCI investigator failed to investigate false claims made by
Student B that petitioner and Student A were seen together at a certain Wendy's
location. Petitioner alleges that there is no Wendy's at that location.
Petitioner alleges that the SCI report has too many flaws.
Respondent filed a separate motion
for an order to dismiss the petition on October 11, 2012. Respondent cross-moved
to dismiss [*4] on the grounds that (1) the petition is time
barred by the four-month statute of limitations set forth in CPLR 217 and (2) petitioner has failed to
exhaust all his administrative remedies.
First, respondent argues that the
petition must be dismissed as time barred because it was not commenced within
four months of a final and binding termination. Respondent argues that the
determination became final and binding on the date petitioner's employment was
terminated. Respondent further argues that the filing of a grievance appeal
does not toll the applicable statute of limitations.
Second, respondent argues that the
petition must be dismissed for petitioner's failure to exhaust his
administrative remedies. Respondent alleges that the grievance process outlined
in Articles 22 and 23 of the collective bargaining agreement ("CBA")
between the BOE and the UFT union must be completed to exhaust all
administrative remedies. Respondent argues that petitioner failed to exhaust
all administrative remedies because he did not proceed beyond Step 2 of the
grievance process. Respondent argues that although it was the Committee's
decision to decline proceeding with the appeal, the decision is binding
on [*5] petitioner because he opted to grieve his termination
pursuant to the CBA.
Petitioner submits a motion for
opposition in response to respondent's cross-motion to dismiss. First,
petitioner again raises allegations that witnesses lied at the unemployment
hearing and that there were errors in the SCI investigation. Petitioner argues
that the court should consider the testimony given and conclusions drawn at the
unemployment hearing. Second, petitioner argues that the petition is not time
barred because he had to wait until the union process was done to commence the
instant proceeding. Petitioner argues that the relevant date for the four-month
statute of limitations is June 8, 2012, when petitioner's appeal was denied.
Third, petitioner argues that he cannot be held liable for the flaws of the UFT
union's actions.
[**4] First,
respondent asserts that it is settled law that unemployment hearing testimony,
findings of fact, and conclusions of law are inadmissible in subsequent court
proceedings and therefore petitioner cannot rely upon such evidence. See, Labor Law §§ 537 (1) and 623 (2); Matter of Watson v. Bratton, 243 AD2d 295, 664 N.Y.S.2d 518 (1st Dept
1997); Matter of Strong v. New York City Dept. of Educ., 62 AD3d 592, 880
N.Y.S.2d 39, 2009 NY Slip Op 04114 (1st Dept 2009). [*6] Second,
respondent again argues that the relevant date for the four-month statute of
limitations is the date petitioner was fired. Respondent alleges that
petitioner brought the instant proceeding seeking review of respondent's decision
to terminate petitioner, not seeking review of the union's determination.
Third, respondent reiterates that petitioner is bound by his union's decision
not to complete the grievance process. Respondent argues that petitioner is
liable for the flaws of the union actions because petitioner elected to pursue
the grievance process outlined in the CBA.
A party must commence a special
proceeding under Article 78 of the CPLR by filing a petition within four months
after the administrative determination to be reviewed becomes final and binding
on the aggrieved party. See, CPLR 217 (1) & 304; Matter of Best Payphones, Inc. v. Department of Info. Tech. &
Telecom. of City of N.Y., 5 NY3d 30, 832 N.E.2d 38, 799 N.Y.S.2d 182, 2005 NY
Slip Op 04616 (2005); Matter of De Milio v. Borghard, 55 NY2d 216, 433 N.E.2d 506, 448 N.Y.S.2d
441 (1982). A determination to discontinue a probationary BOE
employee's service becomes final and binding on that employee on his last day
at work. See, Kahn v. New York City Dept. of Educ., 18 NY3d 457, 963 N.E.2d 1241, 940
N.Y.S.2d 540, 2012 NY Slip Op 01098 (2012); [*7] Matter of Zarinfar v. Board of Educ. of the City School Dist. of the City
of N.Y., 93 AD3d 466, 939 N.Y.S.2d 702, 2012 NY Slip Op 01753 (1st Dept 2012). The
internal appeal procedure provided for under the CBA constitutes an optional
procedure to review grievances, and is not an administrative remedy that
petitioner must exhaust before litigating the termination of his employment.Kahn v. New York City Dept. of Educ., 18 NY3d 457, 963 N.E.2d 1241, 940
N.Y.S.2d 540. Furthermore, the grievance proceeding does not
toll the four-month statute of limitations. Matter of Lubin v. Board of Educ. of City of N.Y., 60 NY2d 974, 459
N.E.2d 481, 471 N.Y.S.2d 256 (1983). Petitioner's employment was
terminated on October 19, 2010, but he did not commence the instant proceeding
until almost two years later on August 31, 2012. Accordingly, the petition is
time barred insofar as it seeks to reverse respondent's determination
terminating petitioner's employment.
Petitioner must exhaust his
administrative remedies before a claim is ripe for Article 78 review. CPLR 7801 (1); Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 NY2d 371,
334 N.E.2d 586, 372 N.Y.S.2d 633 (1975). "It
is well established that an aggrieved union member whose employment is subject
to the terms of a collective bargaining agreement
entered [*8] into by his union and employer must first avail
himself of the grievance procedure set forth in the agreement before he can
commence an action in court." Matter of Cantres v. Board of Educ. of City of N.Y., 145 AD2d 359, 360,
535 N.Y.S.2d 714 (1st Dept 1988). Petitioner did not proceed beyond Step 2 of the
grievance process and is bound by his union's determination not to proceed.
Therefore, the petition must be dismissed for failure to exhaust all
administrative remedies.
Petitioner does not argue that the
union's determination declining to pursue further administrative remedies is
arbitrary and capricious. Nonetheless, it should be noted that this argument is
without merit. "When [petitioner] elected to follow the contract grievance
procedure, he did so knowing that his union would control the decision whether
to reach arbitration. He left that authority with them. Without a showing that
the union breached its duty [**5] of fair representation
in prosecuting the employee's grievance, its decision to conclude the grievance
process short of the final step allowed by contract or law is binding on the
employee and precludes resort to additional remedies." Matter of Board of Educ., Commack Union Free School Dist. v. Ambach, 70
NY2d 501, 511, 517 N.E.2d 509, 522 N.Y.S.2d 831 (1987); [*9] see, Matter of Sapadin v. Board of Educ. of City of N.Y., 246 AD2d 359, 666
N.Y.S.2d 421 (1st Dept 1998).
Petitioner's remaining contentions
are without merit.
Accordingly, it is hereby,
ADJUDGED, that the petition is
denied and the proceeding is dismissed, without costs and disbursements to
either party.
Dated: January 16, 2013
ENTER:
/s/ Alexander W. Hunter Jr.
J.S.C.
ALEXANDER W. HUNTER JR.