Can a paraprofessional accused and terminated for an alleged inappropriate involvement with a twenty year old special education student seek reinstatement when he appealed to court almost two years after his last day of work despite the UFT refusal to take his case to arbitration?

No. James Barnes, Jr., a paraprofessional at P 754X was accused of an inappropriate relationship with a 20-year-old female special education student on February 24, 2010. He was reassigned pending an SCI investigation. On October 7, 2010, a due consideration conference was held to give petitioner a chance to respond to the SCI report with his UFT 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 to take further action. In a letter dated June 8, 2010, the Committee denied the appeal and declined  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.”

Barnes started his Article 78 petition on August 31, 2012.

The statute of limitations for Article 78 proceedings is 4 months and in termination cases the time starts to run from the petitioner’s “last day of work.” Barnes argued that the Union’s delay in deciding to take the matter to arbitration tolled or extended this limitations period.

Justice Alexander W. Hunter, Jr. disagreed and ruled that Barnes’ petition was untimely and dismissed his petition.

Barnes had also argued that the SCI investigator admitted he falsified telephone records which were used to establish Barnes’ alleged inappropriate relationship. Justice Hunter ruled that under Labor Law Sections 537 and 623 evidence from unemployment hearings is inadmissible in subsequent court proceedings.

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.

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Must a grievant stick to the strict time limits for arbitration in the CBA to preserve their right to arbitrate?

No. Most collective bargaining agreements contain time limits to bring grievances up to and including arbitration and generally have provisions which require that all disputes governing the interpretation of the collective bargaining agreement be resolved by arbitration.

In Rondout Valley, a case recently decided by the Appellate Division, Third Department, a teachers’ union sought arbitration on a series of grievances which the school district claimed were untimely. The school district, rather than submitting the matter to an arbitrator to decide timeliness, went to Supreme Court and obtained a stay of arbitration based on the Court’s determination that the arbitration requests were late.

The Third Department reversed the lower court finding, “Where a collective bargaining agreement contains a broad arbitration clause, the question of whether a party has complied with the procedural requirements of the grievance process — such as time limitations — is to be resolved by an arbitrator absent “a provision expressly making compliance with the time limitations a condition precedent to arbitration” (citations omitted).

In the Matter of the Arbitration between BOARD OF EDUCATION OF THE RONDOUT VALLEY CENTRAL SCHOOL DISTRICT, Respondent, and RONDOUT VALLEY FEDERATION OF TEACHERS, Appellant, et al., Respondent. 514914, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT, 2012 N.Y. App. Div. LEXIS 8789; 2012 NY Slip Op 8862, December 20, 2012, Decided.

Must the DOE return a vindicated teacher to her original school after all disciplinary charges were dismissed?

Yes. Judith Merenstein, a tenured elementary school teacher for almost 20 years was served with charges that included a U-rated observation by the LIS. The arbitrator who heard the case found the LIS and others not credible and part of a campaign to discredit and terminate Merenstein. All charges were dismissed.

Subscribing to the theory that no good deed goes unpunished the DOE reinstated her to a different school. She promptly filed a proceeding in Court claiming that the State Education Law provided that she was to return to her original school and limited the power of the DOE to reassign her. The DOE moved to dismiss Merenstein’s petition and Justice Lucy Billings denied the motion and ordered the DOE to respond to her petition.

Billings found that the DOE had the right to reassign Merenstein to a different workplace (the rubber room) while charges were pending but State Law was clear that she had to be reinstated to the same school if charges were dismissed.

Observation: The decision does not deal with the impact of the CBA and exhaustion of the grievance procedure.

In the Matter of the Application of JUDITH MERENSTEIN, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, in his official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents, Index No. 111208/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY 2012 N.Y. Misc. LEXIS 5468; 2012 NY Slip Op 32844U October 18, 2012, Decided. November 13, 2012, Filed.

Can a coach, suspended from his per session coaching activity, obtain reinstatement from the Courts before he has exhausted the grievance procedure?

No. Stephen Mendl, an experienced and well-decorated baseball coach for George Washington High School, was accused of being involved in the recruitment of a baseball player from Lehman High School. After an investigation by an investigator from the PSAL Mendl’s principal determined he was improperly involved and suspended Mendl from his coaching duties, a per session activity, for one year.

Mendl brought a Step I grievance claiming various violations of the contract and the Education Law including the denial of a hearing and the refusal to follow  3020-a procedural safeguards.

The Step I grievance was denied and before the Step II decision was issued Mendl brought a proceeding in  New York Supreme Court seeking a temporary restraining order to reinstate Mendl in his per session activity.

The Step II decision, which upheld his one year suspension, was rendered before Justice Shlomo S. Hagler issued his opinion denying Mendl’s application.

Hagler wrote that Mendl’s failure to  exhaust his administrative remedies, i.e., take the matter through arbitration, required him to deny the prayer for relief. Hagler added that there are four exceptions to the exhaustion requirement,  (1) the agency action is unconstitutional, (2) the agency action is wholly beyond its grant of power, (3) an exhaustion of remedies would be futile, or (4) the agency action would cause irreparable injury.

Mendl argued that his reputation would be irreparably injured but Hagler rejected his argument. The petition was dismissed.

Stephen Mandl, Petitioner, against Board of Education of the City School District of the City of New York, PUBLIC SCHOOLS ATHLETIC LEAGUE, and CATHLEEN P. BLACK, in her official capacity as CHANCELLOR of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondents. 104036/2011, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50923U; 2011 N.Y. Misc. LEXIS 2462, May 18, 2011, Decided