Opinion
23354/04.
Decided August 17, 2006.
Cronin Byczek, Plaintiff Attorney.
Eliot Spitzer, Defendant's Attorney.
Petitioner, Brinsley Harper, seeks a judgment, pursuant to CPLR Article 78, vacating a March 4, 2004 determination by respondent New York State Office of Mental Health (NYSOMH) which found that "sufficient evidence" existed to substantiate a claim of sexual harassment brought against the petitioner by a co-employee, removing all counseling memoranda concerning such sexual harassment claim from Mr Harper's personnel file, and enjoining the respondents from any "further violations of the Collective Bargaining Agreement (CBA)." Respondents, NYSOMH, Diane Aman, Executive Director, Brooklyn Children's Center, and Reva L. Marcellin, Diversity Planning Administrator, cross-move, pursuant to CPLR 3211 (a) and 7804 (f), for an order dismissing the instant petition on the ground that the petitioner has failed to exhaust all remedies available to him under the CBA and, therefore, the court lacks subject matter jurisdiction over said petition.
The instant proceeding stems from disciplinary action taken against Brinsley Harper by NYSOMH as a result of his alleged sexual harassment of a co-worker whom he supervised. Brinsley Harper avers that he is employed as a Safety Officer II at the Brooklyn Children's Center. The terms and conditions of his employment, including disciplinary and grievance procedures, are governed by the CBA between NYSOMH and Mr. Harper's union, the New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA). On or about January 9, 2003, a fellow safety officer and supervisee, Sheena DeLaurencio, filed a complaint with Brooklyn Children's Center and "Chief Gallo," Brinsley Harper's direct supervisor, claiming sexual harassment, unsafe working conditions, and a hostile working environment. On February 20, 2003 and March 26, 2003, the petitioner was interviewed by respondent Reva Marcellin, a Diversity Planning Administrator/Affirmative Action Administrator employed by NYSOMH. An NYSCOPBA representative was present at the interviews. According to the transcript of the interview conducted on February 20, 2003, Ms. Marcellin stated that she would, as a preliminary matter, "read from the [NYSOMH's] discrimination complaint policy and procedure . . . which was reissued in March 1997 [and] govern[s] complaints of discrimination" and informed Brinsley Harper that pursuant to such rules and regulations, the "respondent/potential person being disciplined" as the result of a discrimination claim made against him or her "must be interviewed consistent with the procedures in their contract or by procedures established for. . . . grievance[s]."
Subsequent to the interview, Brinsley Harper received a letter from Ms. Marcellin, dated March 4, 2004, which stated, in relevant part, that: "[T]he Complaint of Discrimination filed by [Safety Officer] Sheena DeLaurencio, dated January 9, 2003, has been thoroughly investigated and a determination made. Pursuant to the investigation, there is sufficient evidence to substantiate the complaint. In accordance with [NYSOMH] Discrimination Complaint Policy and Procedures, a Complainant or Respondent may appeal a facility's decision with the Bureau of Diversity Planning and Compliance. Appeals must be made within thirty (30) business days of the date the Complainant or Respondent receives the facility's decision. A Complainant or Respondent should write a brief letter outlining the reasons for the appeal."
On March 5, 2004, Brinsley Harper filed a notice of appeal from the March 4, 2004 determination with the Bureau of Diversity Planning and Compliance on the ground that he was deprived of an adequate opportunity to respond to the subject sexual harassment charge because he was not afforded access to the specific evidence against him as related to said charge. As part of his appeal, Brinsley Harper sought the review of any documents or evidence in the possession of NYSOMH concerning the subject discrimination claim. He also denied the sexual harassment charge and specifically stated that "no discrimination took place."
On March 25, 2004, Brinsley Harper received a response to his appeal from NYSOMH which stated, in relevant part, that: "[a]s requested in your appeal, the Bureau of Diversity and Compliance has conducted an extensive and through review of the determination of the [subject] complaint of discrimination. At the completion of this review, we find that we are in agreement with the findings of the Brooklyn Children's Center that there is sufficient evidence to substantiate the complaint. As far as the second part of your request, records and other evidence compiled during the investigation are considered confidential and are not shared with either the complainant or the respondent. Disclosure of such records would constitute an unwarranted invasion of the personal privacy of the complainant and witnesses.
On May 27, 2004, a memorandum was issued to the petitioner by respondent Diane Aman, the Executive Director of the Brooklyn Children's Center, which stated, inter alia: "[i]n accordance with [NYSOMH]'s Discrimination Complaint Policy and Procedures governing complaints of discrimination, the Discrimination Complaint Determination rendered on March 4, 2004, your Notice of Appeal to the Bureau of Diversity Planning and Compliance, dated March 5, 2004, as well as the Appeal Determination, dated March 25, 2004, the following corrective action is recommended: This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future."
On June 14, 2004, Brinsley Harper sent a letter rebutting the discrimination claim determination and the related "counseling" memorandum. The basis for such rebuttal, in relevant part, was stated as follows: "No sexual harassment was ever committed by me. The finding of this charge and counseling I received was arbitrary [sic] enforced. I was never provided with an opportunity to tell my side of the story. However, I was found guilty of these allegations and was given a counseling. * * * In reference to the counseling, the contents were limited and the procedure violates the . . . [CBA]. The object of counseling is to have a one to one private meeting between supervisor and employee, using constructive methods so as to clarify what was committed and to correct and guide the employee in bettering his performance of his duties. Everything that was said at this meeting must be recorded in the counseling memo. This was not done in the counseling I received. I prospectively request that the charges and counseling memo be removed from my Personal History Folder. In the alternative, this rebuttal should remain in my Personal History Folder to clarify the records."
On June 15, 2004, Brinsley Harper filed a grievance with NYSOMH for violating the CBA. The contents of the subject grievance were as follows: "On May 27, 2004, I received a counseling memo. . . . The contents that related to the charges/offence [sic]. I allegedly committed was [sic] vague and unspecified. The process of this counseling violates Articles 7.1b, 8, 10 and Appendix "C" of [the CBA]. The counseling memo was prepared and signed by Diane Aman, (Exec. Dir.) but was issued to me by Deborah Young (DFAS) without any constructive discussion taken [sic] place, without mentioning . . . any specific violation of my duties. The objective and procedure of counseling is laid out in Appendix "C" of the above mentioned [CBA] and such procedures and objectives were not followed during the counseling I received. To summarize, I do not know the specific[s] of the offence [sic] I was counseled for." The remedy sought by the petitioner via the grievance was removal of "the charges and counseling memo . . . from my Personal History Folder, [and that] all requirement[s] specified in the counseling memo that I should comply [with] . . . be withdrawn."
Pursuant to Article 8, section 8.1, of the CBA, "[d]iscipline shall be imposed upon employees [of NYSOMH] otherwise subject to the provisions of Sections 75 and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees." With respect to the procedure to be utilized in imposing discipline upon employees, the CBA, at section 8.2(a), states, in relevant part, that: "[d]iscipline shall be imposed only for just cause. Where the appointing authority or his designee seeks the imposition of a loss of leave credits or other privilege, written reprimand, fine, suspension without pay, reduction in grade, or dismissal from service, notice of such discipline shall be made in writing and served, in person, by courier, or by registered or certified mail upon the employee. The conduct for which discipline is being imposed and the penalty proposed shall be specified in the notice. The notice served on the employee shall contain a detailed description of the alleged acts and conduct including reference to dates, times and places, and if the Employer claims that the employee has been charged with a crime for the alleged acts, the notice of discipline must identify the specific section of the Penal Law or other statute which the Employer claims the employee has been charged with violating, if known by the Employer. The employee shall be provided with two copies of the notice which shall include the statement, "You are provided two copies in order that one may be given to your representative. Your union representative is NYSCOPBA."
According to Appendix C of the CBA, "counseling" is described as "an effort on the part of a supervisor to provide to an employee, positively or negatively, significant feedback regarding on-the-job activity." Moreover, "[c]ounseling is not disciplinary, having constructive goals, such as assisting in employee development, or teaching or modifying behavior." Under the agreement, an employee can challenge a disciplinary action through the grievance process. Pursuant to section 7.1(a), "[a] dispute concerning the application and/or interpretation of this Agreement is subject to all steps of the grievance procedure including arbitration, except those provisions which are specifically excluded." In addition, the CBA specifically addresses disciplinary disputes by providing that "[a] claim of improper or unjust discipline against an employee shall be processed in accordance with Article 8 of this Agreement."
The standard grievance procedure affords employees a four-step process culminating with arbitration if the grievance is not resolved during the initial three phases (Steps 1, 2 and 3) of the process. Each grievance level entails a review of the dispute by a different level of the subject agency (Step 1 and 2) or by a representative of the Governor's Office of Employee Relations (Step 3). Finally, subsequent to Step 3, an arbitration may be held before a master arbitrator appointed by agreement of the parties (Step 4), if the matter has not been resolved at any of the other grievance step levels.
With respect to grievances brought concerning "a claim of improper or unjust discipline," the collective bargaining states that such claim shall be processed in accordance with Article 8, which establishes a slightly different grievance procedure than that delineated within Article 7. Article 8, at 8.2(d), states that a notice of discipline received by an employee "may be the subject of a disciplinary grievance." If the disciplinary grievance is not settled, the grievance may be appealed to disciplinary arbitration. Pursuant to 8.2 (h), "[t]he disciplinary arbitrator's decision with respect to guilt or innocence, penalty, or probable cause for suspension . . . shall be final and binding on the parties. . . ." Brinsley Harper argues that the subject discrimination determination was not based upon substantial evidence because the respondents precluded him from reviewing witness statements and other pertinent documentary evidence and did not otherwise notify him of the specific factual allegations asserted against him in writing prior to his interviews. He contends that the respondents' failure to advise him of the specific factual allegations made against him by his co-worker and supervisee, Ms. DeLaurencio, violated provision 8.2 (a) of the collective bargaining agreement which provides that "a detailed description of the alleged acts and conduct including reference to dates, times and places" shall be included in any notice of discipline served upon an employee.
In support of their cross-motion to dismiss the petition, the respondents argue that the petitioner has failed to exhaust the administrative remedies available to him pursuant to the CBA and, therefore, the instant article 78 proceeding is premature and must be dismissed. They submit the affidavit of Luther Wynter, an Agency Labor Representative for NYSOMH who is responsible for reviewing and deciding Step 2 grievances, which states that on June 15, 2004, the petitioner submitted a grievance alleging violations of Articles 7.1 (b), 8, 10 and Appendix "C" of the collective bargaining agreement, thereby "commenc[ing] a Step II grievance review." The respondents contend that the petitioner will not have exhausted his contractual remedies until he has completed a Step 3 grievance and arbitration, as provided for by the CBA.
In response to the cross motion, Brinsley Harper argues that the grievance he filed was merely a Step 1 grievance solely related to the respondents' alleged failure to comply with contractual provisions related to the issuance of the subject counseling memorandum and therefore, such grievance did not challenge the original March 4, 2004 determination which found that the finding on the sexual harassment charge alleged against him was "substantiated." Moreover, he claims that his Step 1 grievance was successfully resolved pursuant to a letter served on him by Marie E. Felton, Director of Human Resources Management for NYSOMH, which stated the following: "[y]our grievance dated June 15, 2004, regarding a violation of Article 7.1 (b)/Appendix C, was found to have merit. Therefore, the counseling memorandum, dated May 27, 2004, that was issued to you has been withdrawn and removed from your Personal History Folder. Please be advised that a counseling session will be held at a later date regarding the initial complaint in accordance with Article 7.1 (b)/Appendix C." Brinsley Harper maintains, therefore, that such grievance did not encompass the initial adverse March 4, 2004 discrimination determination and, therefore, he remains aggrieved by such determination and now seeks article 78 relief in the instant proceeding.
"CPLR 7801 . . . provides that a determination must be final' before being subjected to CPLR article 78 review" ( Matter of Geherin v. Sylvester, 75 AD2d 991, 991; see also Matter of Cohoes Memorial Hospital v. Department of Health, 48 NY2d 583, 590). An agency determination, therefore, becomes ripe for review when the determination becomes final and binding upon the petitioner seeking such review (see Yarbough v. Franco, 95 NY2d 342, 346). Stated differently, "[a]n agency determination becomes final and binding within the meaning of [article 78] when the petitioner seeking review has been aggrieved by it" ( Matter of Mateo v. Board of Educ. of City of New York, 285 AD2d 552, 553). "A petitioner is aggrieved once the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted" ( Carter v. State of New York, Executive Dept., Div. of Parole, 95 NY2d 267, 270).
When a final determination has not been issued and "there are further administrative steps available to secure a change in result, a party must pursue them before going to court" ( Matter of Geherin, 75 AD2d at 991). "The doctrine of administrative remedies serves several important functions: first, it conserves judicial resources; second, it protects the integrity of administrative hearings and appeals; and third, it insures that the issues receive the benefit of the experience and expertise of the agency" ( id. [citations omitted]; see also Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d 52, 57 [noting that the administrative review doctrine promotes and comports with the "goals of relieving the courts of the burden of deciding questions entrusted to an agency, preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgment"] [internal quotation marks and citations omitted). The rule that all administrative remedies must be exhausted prior to the judicial review of an agency's determination "need not be followed [however] . . . when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power or when resort to an administrative remedy would be futile" ( Watergate II Apartments, 46 NY2d at 57 [citations omitted]).
The rule compelling a petitioner to exhaust all administrative remedies as a condition precedent to commencement of an Article 78 proceeding has also been consistently applied in the context of disputes governed by a collective bargaining. Accordingly, where a "petitioner fail[s] to pursue the grievance procedures set forth in [a] collective bargaining agreement, [an Article 78 proceeding is] properly dismissed for failure to exhaust administrative remedies" ( Matter of O'Connor v. Police Commn. of Town of Clarkstown, 301 AD2d 654, 654; see also Matter of Hammond v. Village of Elmsford, 8 AD3d 484, 485 [affirming dismissal of Article 78 proceeding on the ground that the petitioner failed to exhaust his administrative remedies and finding that the subject collective bargaining agreement "provided a four-step grievance process that the petitioner should have utilized to challenge the decision by respondent . . . to terminate his employment"]); accord Matter of Employees Union Local 237, IBT AFL-CIO v. City of New York, 28 AD3d 230 ; Matter of Hall v. Town of Henderson, 17 AD3d 981, lv denied 5 NY3d 714; Matter of New York State Correctional Officers and Police Benevolent Assn., Inc. v. State, 301 AD2d 845; Matter of Miller v. County of Nassau, 297 AD2d 344; Matter of Gamma v. Bloom, 274 AD2d 14; Matter of Lamphron v. State, 239 AD2d 860). This comports with the general rule that "when an employer and employee enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract" ( Matter of Board of Education v. Ambach, 70 NY2d 501, 508).
Here, Brinsley Harper has failed to exhaust the grievance procedure provided for in the CBA between the parties and, therefore, is precluded from bringing the instant Article 78 proceeding. He seeks to have the March 4, 2004 determination annulled and vacated by this court. Such determination, however, constitutes a disciplinary action subject to the grievance procedures outlined in the CBA. Although the CBA states that counseling is not discipline, the counseling memo issued to Mr. Harper also requires that he attend Supervisory Training and Sexual Harassment Prevention Training and so imposes additional requirements on him that extend beyond the mere "job-related feedback" referred to in Appendix C of the CBA. Moreover, the representative of NYSOMH who conducted the interview of the petitioner which, in part, resulted in a finding that the underlying complaint was substantiated, made clear that the investigation of a sexual harassment claim was disciplinary in nature and informed him that the "respondent/potential person being disciplined" as the result of a discrimination claim made against him or her "must be interviewed consistent with the procedures in their contract or by procedures established for . . . grievance[s]." Indeed, Brinsley Harper contends that the determination is subject to vacatur on the ground that the respondents, in the course of investigating the complaint and issuing the determination, did not comply with the disciplinary procedures mandated by Article 8 of the CBA.
In any event, even if counseling resulting from a sexual harassment claim that has been adjudged "substantiated" is not strictly construed as disciplinary in nature, the basis for requiring counseling, and the manner in which the counseling is performed and documented, are indisputably contractual in nature and any disputes resolving same must also, by necessity, be subject to the grievance procedures available under the CBA for disputes concerning "the application and/or interpretation of this Agreement." Accordingly, as the petitioner's instant dispute with the respondents can be construed as either "concerning the application and/or interpretation of the [CBA]" or "a claim of improper or unjust discipline," Brinsley Harper is constrained to pursue all remedies available to him through the applicable grievance procedures prior to commencing an Article 78 proceeding seeking relief from the March 4, 2004 determination.
The court notes that the grievance procedures for allegedly unfair disciplinary actions and disputes concerning the application and/or interpretation of the agreement appear to be somewhat different in both the number of "steps" and the nature of the grievance proceedings. However, as the petitioner has not, in any event, exhausted his administrative remedies either under Article 7 (the standard grievance procedure) or Article 8 (the disciplinary grievance procedure), he cannot maintain the instant article 78 proceeding.
Although Brinsley Harper argues that there is no need to pursue any additional grievance steps because his Step 1 grievance was resolved by the removal of the counseling memo from his personnel file, the letter allegedly "resolving" the grievance plainly states that, despite the removal of the counseling memorandum, a counseling session nonetheless will be held at a later date regarding the initial sexual harassment claim. Accordingly, although the letter appears to acknowledge a procedural defect in the manner in which the subject counseling was conducted and the related memorandum issued, it does not state that the initial determination was flawed or the resulting counseling unwarranted, but rather confirms that future counseling with regard to the underlying complaint will occur. Moreover, Brinsley Harper also sought, via the Step 1 grievance, the removal of the underlying sexual harassment complaint from his personnel file, an issue which remains unresolved and, therefore, susceptible to further review at subsequent steps of the grievance process. As noted by the respondents, if the petitioner's challenge to the determination itself, as well as to the counseling which resulted, was resolved at the Step 1 grievance stage, Brinsley Harper would not continue to be aggrieved by the agency's determination and would have no basis for an Article 78 proceeding. Brinsley Harper has not obtained relief from the initial determination of the agency nor has he exhausted all of his administrative remedies with regard to same. He also has failed to demonstrate that the disciplinary action complained of does not fall within the purview of the CBA ( see Matter of Sokol v. Granville Central School District Board of Education, 260 AD2d 692, 693 [reversing dismissal of Article 78 petition on the ground that the petitioner was not required to exhaust his administrative remedies with regard to claims brought under the Education Law which did not fall within the purview of the subject collective bargaining agreement] or that the agency's actions have been unconstitutional, wholly beyond its grant of power or that resort to further administrative remedies would be futile ( see Watergate II Apartments, 46 NY2d at 57). Accordingly, the instant Article 78 proceeding cannot be maintained absent a showing that Mr Harper has exhausted the remainder of the grievance procedures contractually afforded to him and, therefore, is aggrieved by a final agency determination as required by CPLR 7801.
The court notes that although the grievance filed by the petitioner on June 15, 2004, has been denominated by the respondents as being subject to Step 2 review, the court will construe such grievance as Step 1 given that it appears it is the initial, and to date, only, grievance filed by the petitioner pursuant to the CBA.
As a result, Brinsley Harper's Article 78 petition is dismissed without prejudice to renewal upon his exhaustion of all applicable administrative remedies available to him under the subject collective bargaining agreement.
The foregoing constitutes the decision, order, and judgment of the court.