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)

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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.

Is a probationary teacher who received a U-rating required to exhaust all administrative remedies before appealing to Court?

Yes. Leonette Belfield worked for over 10 years as a paraprofessional when she entered the DOE’s program, “Pathways to Teaching,” to become a teacher in 2006. She received 3 consecutive S-ratings and was given a U-rating for the 2009 to 2010 school year and terminated. (It is not clear why Belfield was still on probation during her fourth year teaching).

Deciding not to wait until her U-rating appeal was decided by the Chancellor, Belfield commenced a proceeding seeking reversal of her U-rating and reinstatement. It was undisputed that Belfield did not exhaust her administrative remedies.

Without deciding on the merits Justice Barbara Jaffee dismissed her application relying on Belfield’s failure to wait for the Chancellor’s decision in her U-rating appeal.

In the Matter of the Application of: LEONETTE BELFIELD, Petitioner, -against- JOEL KLEIN, as the Chancellor of the Department of Education of the City of New York, CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules. Index No. 114094/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31862U; 2011 N.Y. Misc. LEXIS 3389, July 1, 2011, Decided

Observation: The decision and supporting documents do not reveal answers to some important questions about the case. Although the Court wrote, in its decision, that Belfield had requested reinstatement, this was not requested in her petition. It is not clear when Belfield was terminated but generally a proceeding to challenge a probationary termination has a four month statute of limitations measured from the effective date of termination. To challenge the U-rating and the subsequent placement on the DOE’s ineligible list requires filing the proceeding in Court within four months of the Chancellor’s decision in the U-rating appeal which did not occur at the time of the filing of Belfield’s petition.

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