Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

Does dismissal of a teacher found to have sexually harassed and verbally abused one student for one single incident shock the conscience of the Court?

No. Reinaldo Palencia, a twenty-two year veteran teacher, most recently from Martin Van Buren High School, was found by arbitrator Arthur Riegel to have, on one occasion, touched the shoulder of a female student and whisper in her ear words to the effect that if he were the student’s age he would fuck her.

Palencia raised several issues but the Court focused on whether Palencia’s good disciplinary history warranted his termination for what was basically a single incident of verbal abuse.

The Court quoted Riegel’s decision and agreed that Palencia’s action constitute[d] “classical sexual harassment” and “extreme verbal abuse.”

The Court continued, “Although termination is a severe penalty, it is
proportionate to the egregious, highly inappropriate nature of petitioner’s behavior, notwithstanding petitioners history with DOE.”

Reinaldo Palencia, Petitioner, against The New York City Board/Department of Education, Respondent. 112557/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 50905U; 2011 N.Y. Misc. LEXIS 2381, May 13, 2011, Decided

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

Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided