Opinion
102842/2009.
Decided June 8, 2010.
Lorraine Thomas a/k/a Lorraine Thomas Wilson, Brooklyn, NY, Petitioner Pro Se.
Of Counsel: Jason A. Kroll, Esq., Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, Attorney for Respondent.
In this Article 78 proceeding, petitioner pro se contends that respondent's assignment of petitioner to her former position as a teacher violated Education Law § 2588.
BACKGROUND
It is undisputed that petitioner achieved tenure in a teaching position with the Board of Education of the City School District of the City of New York (BOE) in 1986. Verified Petition ¶ 1; Goldberg Aff. ¶ 8. According to the BOE records, in October 1986 petitioner was assigned to the position of interim acting Supervisor of Special Education in the District Office of Community School District 17. Goldberg Aff. ¶ 9. Respondent claims that petitioner was appointed to the position about two years later. Id.
Petitioner claims that, on July 1, 2001, she was placed in the position of assistant principal at PS 138. In support of her contention, petitioner submits a copy of a letter dated July 1, 2001, which appears to be on the letterhead of Dr. Evelyn W. Castro, Superintendent of Community School District Seventeen. The letter states:
"Ms. Lorraine Wilson:
Due to budgetary constraints and in accordance with the CSA contract you are being excessed from the District Office as a Special Education Supervisor. You are being placed in an Assistant Principal vacancy at P.S. 138 effective September 2001.
Thank you for cooperation.
Sincerely,
[/s/]
Evelyn W. Castro
Superintendent"
Verified Petition, Ex A.
In 2003, petitioner allegedly received a "Notice of Reversion" from BOE, which purported to revert petitioner back to a teacher. Verified Petition, Ex B. According to respondent, BOE underwent a massive reorganization in July 2003, which included the elimination of the position of Special Education Supervisor. However, in a letter dated September 8, 2003 to Ms. Jocelyn Taylor, Personnel Liaison Region 6, the principal at PS 138, Marie B. Chauvet-Monchik apparently wrote:
"Dear Ms. Taylor,
Ms. Loraine Wilson was a Special Education Supervisor in District 17. She is reinstated in the system as an Assistant Principal. Please find the paper placement for her.
Thank you for cooperation.
Sincerely,
[/s/]
Marie B. Chauvet-Monchik
Principal"
Verified Answer, Ex 12. Petitioner claims that, in October 2003, she performed formal observations of teachers as an assistant principal. Verified Reply, Exs H-J. Petitioner submits documents which she claims are evidence reflecting work as an assistant principal ( id., Exs M-O), as well as affidavits from an interim acting assistant principal and another assistant principal stating that petitioner was an assistant principal. See generally Lee Aff.; Tyler Aff.
Respondent disputes that petitioner was appointed to an assistant principal position. Respondent maintains that petitioner would have had to have been appointed according to the process set forth in Chancellor's Regulation C-30, and that the superintendent did not have the authority to appoint petitioner to the assistant principal position without going through that process. Respondent characterizes Chauvet-Monchik's purported letter dated September 8, 2003 as an inquiry with the Regional Office of petitioner's status. Verified Answer ¶ 40. According to Chauvet-Monchik, no one at the Regional Operating Center could confirm that petitioner was an assistant principal, but petitioner continued to insist that she was an assistant principal. Verified Answer, Ex 11.
In February 2005, petitioner allegedly received another notice of reversion, which indicated that petition had reverted from Supervisor of Special Education to the position of teacher of special education, effective as of December 9, 2004. Id., Ex 20. On March 18, 2005, the Council of Supervisors and Administrators, Local 1 American Federation of School Administration, AFL-CIO (CSA) filed a request for a grievance conference on petitioner's behalf, to allege violations of CSA's collective bargaining agreement. Id., Ex 22. The letter states, "Specifically, Lorraine Thomas Wilson, an appointed and tenured Assistant Principal at P138 [ sic] District 17 Region 6 has been removed and unilaterally assigned as teacher." Id. On May 23, 2005, a Step II Conference was held concerning petitioner's grievance filed on March 18, 2005, wherein petitioner's grievance was denied. Id., Ex 24.
Petitioner allegedly commenced an Article 78 proceeding in the Supreme Court, Kings County on June 9, 2005. Respondent cross-moved to dismiss the petition on the grounds that the petition was time-barred, that petitioner had not filed a notice of claim, that petitioner lacked standing to enforce the collective bargaining agreement, that she failed to exhaust her remedies, and that petitioner's demotion was not in bad faith. See Verified Answer, Ex 2. Petitioner voluntarily withdrew the Article 78 petition without prejudice pursuant to a stipulation of withdrawal and discontinuance dated September 7, 2005. Id., Ex 3.
On January 24, 2006, CSA allegedly filed an Intention to Arbitrate pertaining to petitioner's grievance. Id., Ex 25. An arbitration hearing was allegedly scheduled for September 21, 2006. Id. Ex 26. The American Arbitration Association allegedly held the matter in abeyance, citing the parties' attempt to resolve the matter. Id., Ex 28. Respondent claims that CSA withdrew the grievance on September 17, 2008. Solimando Aff. ¶ 8.
By a letter to petitioner dated October 28, 2008, CSA counsel purportedly wrote,
"Dear Ms. Thomas-Wilson:
I write to confirm that the administrative remedies available to you under the Council of School Supervisors and Administrators collective bargaining agreement with the New York City Board of Education have been exhausted."
Verified Petition, Ex E.
Petitioner filed a notice of claim contesting her reversion on January 23, 2009. Verified Answer, Ex 29. Petitioner commenced this Article 78 proceeding on February 27, 2009. Respondent cross-moved to dismiss the petition as time-barred and for failure to exhaust administrative and contractual remedies. Accepting the petitioner's allegation that she first received formal notification of her reversion in February 2005, respondent argued that the petition was time-barred under the four month statute of limitations. By decision and order dated September 21, 2009, this Court denied respondent's cross motion, reasoning:
"Thus, the unresolved question here is whether petitioner was entitled to the administrative remedies that she pursued after she voluntarily withdr[e]w her prior Article 78 petition. Accordingly, respondent's cross motion is denied . . . However, respondent may raise the statute of limitations in its answer as an affirmative defense, and may submit further evidence that could demonstrate that the agency's determination was final and binding in 2005."
DISCUSSION
In answering the petition, respondent has clarified the chain of events leading to this Article 78 petition, including the grievance procedures that petitioner pursued before this Article 78 petition was commenced.
As a threshold matter, respondent argues that the Article 78 petition should be dismissed because petitioner did not file a timely notice of claim in accordance with Education Law § 3813. Petitioner argues that an exception to the notice of claim lies where respondent "knew or should have known about the action asserted." Verified Reply ¶ 10.
"[T]he purpose of section 3813 of the Education Law is to give a school district prompt notice of claims so that investigation may be made before it is too late for investigation to be efficient. . . . failure to present a claim within the statutory time limitation or to notify the correct party is a fatal defect."
Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 547 (1983) (internal quotation marks and citations omitted). The notice of claim requirement does not apply to actions or proceedings which seek "to vindicate a public interest," as opposed to "enforcement of private rights and duties." Union Free School Dist. No. 6 of Towns of Islip Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379 (1974).
However, in Piaggone v Board of Education, Floral Park-Bellrose Union Free School District ( 92 AD2d 106 [2d Dept 1983]), the Appellate Division, Second Department, held that a notice of claim "is not a condition precedent to a special proceeding properly brought pursuant to seeking either judicial enforcement of [a clear legal] duty or judicial review of such prior adjudication." In Piaggone, the petitioner contended that she was reappointed to a part-time rather than a full-time teaching position, in violation of Education Law § 2510. The Appellate Division reasoned,
"Although recent decisions have attempted to predicate application of notice of claim requirements on a private-public right distinction, they essentially restate well-settled, if sometimes forgotten, principles that distinguish "claims" from legal rights, i.e., those claims that have already been reduced through enactment of positive law (e.g., Education Law, § 2510) or adjudication by an administrative agency or court (e.g., Education Law, § 3020-a) to judicially enforceable rights ( see State Div. of Human Rights [Geraci] v. New York State Dept. of Correctional Servs., 90 AD2d 51, 63, 65-69, nn 6, 8, 456 NYS2d 63). Obviously implicit in such legislation or adjudication is the government entity's knowledge of the nature of the claim asserted, hence, requiring a notice of claim subsequent to conversion of the claim into a legal right would be superfluous. In practical terms, prior to commencement of a special proceeding pursuant to CPLR article 78, a petitioner will either have demanded of the government entity that it perform the clear specific legal duty as legislated or have submitted his claim to adjudication by that entity. Therefore, a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to seeking either judicial enforcement of such duty or judicial review of such prior adjudication."
Piaggone, 92 AD2d at 108-109 (internal citations omitted). Thus, "[a] notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR article 78, in the nature of mandamus, seeking judicial enforcement of a legal right derived through enactment of positive law." Matter of Sharpe v Sturm , 28 AD3d 777 , 778-779 (2d Dept 2006) (citing Piaggone).Here, petitioner alleges that respondent removed her from the position of Assistant Principal in violation of Education Law § 2588, which is similar in language to Education Law § 2510. Compare Education Law § 2510 (1) with Education Law § 2588 (2). Therefore, this Court concludes that the requirement of a notice of claim under Education Law § 3813 does not apply here.
Next, respondent argues that the petition is time-barred, and that petitioner failed to exhaust her administrative remedies.
"The statute of limitations for actions brought under CPLR article 78 is four months from the time such determination became final and binding upon the petitioner.' While it will be tolled when the grievance procedure is mandatory, it will typically not be tolled where a voluntary grievance procedure is employed."
Matter of Bargstedt v Cornell Univ., 304 AD2d 1035, 1036 (3d Dept 2003) (citations omitted). Here, whether the grievance procedure was mandatory or voluntary, the petition must be dismissed.
To the extent that petitioner contends that the grievance procedures she pursued under the collective bargaining agreement were mandatory, the statute of limitations would be tolled. However, if that were the case, petitioner would not be entitled to bring an Article 78 petition once the union withdrew the grievance and did not proceed with the arbitration.
"[W]hen an employer and a union 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. Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer."
Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501, 508 (1987). Here, Article X.C. of the CSA contract in effect provided that grievances not resolved at the level of the Chancellor may be submitted to an arbitrator by the CSA, and that the proceeding may be initiated by the CSA filing with the BOE and the American Arbitration Association a notice of arbitration. CSA apparently filed a notice of arbitration on January 24, 2006. "It is the rule in New York that once it is established that a petitioner is obligated to arbitrate his [or her] grievance under an applicable collective bargaining agreement, his [or her] failure to do so operates as a bar to [a CPLR] article 78 proceeding'" Matter of Meegan v Brown , 66 AD3d 1437, 1438-1439 (4th Dept 2009) (citation omitted); see Ambrosino v Village of Bronxville , 58 AD3d 649 , 651-652 (2d Dept 2009) (cause of action was properly dismissed because employee complied with the first two steps of grievance procedure but failed to take the final step, which involved submission of the grievance to arbitration). CSA's withdrawal of the grievance does not alter this conclusion. Petitioner does not cite any provision of the CSA contract which grants her the right to pursue respondent directly in the event that CSA withdrew its grievance. There is no allegation nor any indication that CSA breached its duty of fair representation to petitioner.
Petitioner argues that the Article 78 petition is "solely based upon the Petitioner's rights guaranteed as to Education Law 2588." Verified Petition ¶ 26. Some case law supports the assertion that a violation of the Education Law may be separate and distinct from a violation of the collective bargaining agreement. See Matter of Kaufmann v Board of Educ., 275 AD2d 890 (4th Dept 2000); see Matter of Sokol v Granville Cent. School Dist. Bd. of Educ., 260 AD2d 692, 693-694 (3d Dept 1999). However, if that were the case, the grievance procedure that petitioner pursued would be considered voluntary ( id.), and thus would not toll the statute of limitations. Here, assuming for the sake of argument that petitioner first received notice of her reversion in February 2005 ( see Verified Petition ¶ 1), the limitations period of an Article 78 proceeding would have run by the end of June 2005.
In light of the Court's determination, the Court does not reach the argument of whether petitioner was a tenured assistant principal at the time she received the notices of reversion.
CONCLUSION
Accordingly, it is hereby
ADJUDGED that the petition by Lorraine Thomas a/k/a Lorraine Thomas-Wilson is denied and the proceeding is dismissed.