Opinion
April 29, 1998
Appeal from Judgment of Supreme Court, Erie County, Doyle, J. — CPLR art 78.
Present — Denman, P.J., Lawton, Pigott, Jr., Balio and Boehm, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Respondent appeals from a judgment that granted the CPLR article 78 petition alleging that respondent impermissibly terminated petitioner's employment without a hearing in violation of Civil Service Law § 75. Supreme Court thereby annulled respondent's determination to accept the "resignation" of petitioner from her position as a school bus driver, reinstated her to that position, and granted her back pay and benefits. Respondent contends that petitioner was not entitled to a hearing before respondent accepted her "resignation" pursuant to a provision of the collective bargaining agreement that deems an absence without leave in excess of 10 consecutive work days to constitute a resignation from employment.
An employer's acceptance of an employee's constructive resignation, as provided by a collective bargaining agreement, is not a disciplinary action that entitles the employee to prior notice or a hearing (see, Matter of Plummer v. Klepak, 48 N.Y.2d 486, 489-490, cert denied 445 U.S. 952). An agreement between the employer and the union constitutes a waiver of the employee's protections under Civil Service Law § 75. Further, due process is satisfied by the inclusion of a grievance procedure in the collective bargaining agreement, irrespective of whether petitioner availed herself of that grievance procedure (see, Matter of Plummer v. Klepak, supra, at 489-490; see also, Antinore v. State of New York, 49 A.D.2d 6, 10-12, affd 40 N.Y.2d 921; Guilford v. City of Buffalo, 177 A.D.2d 971, 971-972, appeal dismissed and lv denied 79 N.Y.2d 912; Matter of Flemming v. Cagliostro, 53 A.D.2d 187, 189, lv denied 40 N.Y.2d 806; see generally, Civil Service Law § 76).