Opinion
05-11-2017
In re Anna FINKELSTEIN, Petitioner–Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF the CITY OF NEW YORK, et al., Respondents–Appellants.
Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellants. Office of Richard E. Casagrande, New York (Gregory M. Ainsley of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for appellants.
Office of Richard E. Casagrande, New York (Gregory M. Ainsley of counsel), for respondent.
SWEENY, J.P., RICHTER, ANDRIAS, FEINMAN, KAHN, JJ.
Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered February 16, 2016, denying respondents' cross motion to dismiss the amended petition, or, in the alternative, to submit an answer, granting the amended petition, which sought, inter alia, to annul the determination of respondents, dated December 23, 2014, discontinuing petitioner's probationary employment, and ordering that she be reinstated with full salary and benefits retroactive to September 30, 2014, unanimously reversed, on the law, without costs, the judgment vacated, the petition granted only to the extent of awarding petitioner nine days' pay in accordance herewith, and the cross motion granted to the extent of dismissing the petition insofar as petitioner seeks reinstatement of her probationary employment, retroactive pay in excess of nine days salary and benefits.
Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR article 78 (see Matter of Gil v. Department of Educ. of the City of N.Y., 146 A.D.3d 688, 46 N.Y.S.3d 55 [1st Dept.2017] ; see also Matter of Sapadin v. Board of Educ. of City of N.Y., 246 A.D.2d 359, 360, 666 N.Y.S.2d 421 [1st Dept.1998] ), and the court erred in relieving her of her obligation to exhaust her administrative remedies.
In any event, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason" (Matter of Swinton v. Safir, 93 N.Y.2d 758, 762–763, 697 N.Y.S.2d 869, 720 N.E.2d 89 [1999] ; see also Matter of DeVito v. Dept. of Educ. of the City of N.Y., 112 A.D.3d 421, 975 N.Y.S.2d 672 [1st Dept.2013] ). "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden" (Matter of Che Lin Tsao v. Kelly, 28 A.D.3d 320, 812 N.Y.S.2d 522 [1st Dept.2006] [internal citations omitted]; see also Matter of Witherspoon v. Horn, 19 A.D.3d 250, 800 N.Y.S.2d 377 [1st Dept.2005] ).
The record shows that petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records (see Matter of Thomas v. Abate, 213 A.D.2d 251, 252, 623 N.Y.S.2d 870 [1st Dept.1995] ). The investigator's delay in publishing the written report amounted to a mere technical violation of the collective bargaining agreement, as petitioner received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report (see Matter of Freytes v. City of New York, 146 A.D.3d 678, 46 N.Y.S.3d 51 [1st Dept.2017] ). The court's conclusion of bad faith stemming from the lateness of the report was purely speculative (see Thomas, 213 A.D.2d at 252, 623 N.Y.S.2d 870 ).
However, petitioner is entitled to nine days' pay pursuant to Education Law § 3019–a because she was given inadequate notice of her termination (id. ; see Matter of Tucker, see Matter of Tucker v. Board of Educ., Community School Dist. No. 10, 82 N.Y.2d 274, 604 N.Y.S.2d 506, 624 N.E.2d 643 [1993] ).