Can a teacher, covered by a collective bargaining agreement maintain an action pursuant to Civil Service law 75-b, the Whistleblower’s Law?

No. Michele Ehrlich, an ESL teacher at PS 79 in Whitestone until her probationary termination in July 2011, complained to several DOE departments and some private advocacy groups about a violation of an IEP of one of her students. After her termination she claimed she was covered by the Whistleblower’s Law Section 75-b. (A federal claim concerning her free speech rights was dismissed in a federal action that had been removed to that court by the DOE).

Acting Justice Ellen M. Coin ruled that Ehrlich could not maintain her action under the Whistleblower’s law since she was covered by the UFT contract and was required to exhaust her remedies available under the grievance procedure before she could commence an action.

Ehrlich v. DOE (November 7, 2013, Decided)

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.