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Leslie Kahn v. New York City Department of Education et al

February 14, 2012

LESLIE KAHN, APPELLANT,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION ET AL., RESPONDENTS. IN THE MATTER OF DOREEN NASH, APPELLANT,
v.
THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

These cases call upon us to decide whether petitioners Leslie Kahn and Doreen Nash (collectively, petitioners) were required to exhaust an available internal appeal procedure before challenging the termination of their probationary employment at the City of New York's Department of Education (the Department or DOE). The Department is obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment.

We hold that DOE's decisions were "final and binding" within the meaning of CPLR 217 (1) as of the dates when Kahn's and Nash's probationary service ended, January 25, 2008 and July 15, 2005, respectively. Petitioners awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit. But these reviews "stem[] solely from the [CBA]" and constitute "an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law § 2573 (1) (a)" (Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 767 [1988] [emphases added]); they are not administrative remedies that petitioners were required to exhaust before litigating the termination of their probationary employment. As a result, petitioners' lawsuits, brought more than four months after the dates when their probationary service ended, are time-barred.

I.

Kahn On February 1, 2005, Kahn began her three-year probationary period of employment at DOE as a social worker at the Williamsburg High School for Architecture and Design. In June 2007, she accepted a position as a social worker at Khalil Gibran International Academy. On December 17, 2007, Gibran's interim principal issued an observation report in which she evaluated Kahn's counseling session with students on December 12, 2007 as unsatisfactory. On December 19, 2007, the principal also rated Kahn's performance as unsatisfactory in an annual professional performance review, and recommended denial of completion of probation. Then on December 21, 2007, the community superintendent informed Kahn that, in accordance with Education Law § 2573 (1), she was denying her certification of completion of probation; that under the terms of the CBA between DOE and the bargaining unit of which Kahn was a member she was "entitled to the review procedures . . . prescribed" in article 4 of the Department's bylaws; and that her service pursuant to her appointment would "terminate as of close of business January 25, 2008."

Section 4.3.2 of DOE's bylaws (formerly section 5.3.4), entitled "Appeals re Discontinuance of Probationary Service" provides that"[a]ny person in the employ of the City School District who appears before the Chancellor, or a committee designated by the Chancellor, concerning the discontinuance of service during the probationary term, or at the expiration thereof, shall have a review of the matter before a committee which shall be designated in accordance with contractual agreements covering employees or by regulations of the Chancellor, as appropriate.

"After the review, the committee shall forward its advisory recommendation to the community superintendent or to the Chancellor in accordance with contractual agreements."

Under section 4.3.3, the employee is entitled to appear in person at the hearing, accompanied by an advisor; to be confronted by and call witnesses; and to examine exhibits and introduce relevant evidence. The CBA calls for the section 4.3.2 review to be conducted by a tripartite committee of professional educators, with one selected by the teacher, one by DOE and the third by the other two from an agreed-upon list.

On January 3, 2008, Kahn initiated the section 4.3.2 review by notifying the Department's Office of Appeals and Reviews that she requested an appeal; she checked only the box labeled "Discontinuance" as a reason for her appeal.*fn1 The committee held a hearing on April 9, 2008. By a vote of 2-1, the committee recommended "non-concurrence" with the decision to discontinue Kahn's probationary service. The director of the Office of Appeals and Reviews forwarded the committee's confidential advisory report to the community superintendent on April 16, 2008, advising her to review the report and examine the record, and notify Kahn in writing of her decision either to reaffirm or reverse the discontinuance of Kahn's probationary service. On May 9, 2008, the superintendent informed Kahn that she "reaffirmed the previous action which resulted in Denial of Certification of Completion of Probation effective close of business on January 25, 2008."

On September 9, 2008, exactly four months later, Kahn commenced this CPLR article 78 proceeding against DOE, the Chancellor and the interim principal at Gibran (collectively, DOE). In her amended petition, dated November 17, 2008, Kahn claimed that the principal's observation of the counseling session was deficient because not "made in consultation with an 'in-discipline' Social Work Supervisor [possessing] a clinical license," as required by the CBA; and that the principal's deficient observation and inaccurate assessment of her record of attendance and punctuality caused DOE to terminate her employment, which also effectively barred her from any future job in the New York City school system.

Kahn alleged two "causes of action": that DOE failed to perform duties enjoined by law and acted in an arbitrary and capricious manner in violation of CPLR article 78; and that DOE violated the due process clauses of the federal and state constitutions and 42 USC § 1983 by "providing [Kahn] with an unsatisfactory rating and in terminating [her] in a manner that did not comport with fair processes." She principally sought orders vacating DOE's decisions resulting in the unsatisfactory rating and termination of her employment; permitting her to "resume her status" as a probationary DOE employee; and directing that any further evaluations of her performance comply with the CBA's requirements governing her position.

On January 12, 2009, DOE cross-moved to dismiss the petition. The Department argued that Kahn's claims were precluded by her failure to file a notice of claim as required by Education Law § 3813 (1);*fn2 that the proceeding was barred by expiration of CPLR 217 (1)'s four-month statute of limitations; that to the extent Kahn challenged her unsatisfactory rating, she had not exhausted her administrative remedies; and that her petition did not state a cause of action under section 1983 because she had not been deprived of any property or liberty interest.

Supreme Court denied DOE's cross motion in a decision and order dated September 8, 2009 (26 Misc 3d 366 [NY County 2009]). The judge ruled that because Kahn was seeking equitable relief rather than money damages, Education Law § 3813 (1) did not mandate a timely notice of claim as a prerequisite to her lawsuit (id. at 370-373); that her claims under section 1983 were timely and pleaded sufficiently to survive a motion to dismiss (id. at 380-383); and that "any failure by [Kahn] to exhaust any administrative remedies available in connection with the U-Rating" should be excused because "[t]o the extent the December 21 decision was made in partial reliance on the U-Rating, [Kahn] fully addressed the rating at the Chancellor's hearing regarding her termination" (id. at 381).

The bulk of Supreme Court's decision addressed what the judge called "the challenging issue of determining the precise reach" of Frasier. She acknowledged that the First and Second Departments had consistently interpreted Frasier to mean that "an Article 78 proceeding commenced by a probationary teacher more than four months after the discharge" was untimely (id. at 375, citing Matter of Schulman v Bd. of Educ. of the City of New York, 184 AD2d 643, 644 [2d Dept 1992] ["There is no merit to the petitioner's argument that the review of this administrative determination (to terminate his probationary employment) served to extend the four month limitations period"]; Matter of Strong v New YOrk City Dept. of Educ., 62 AD3d 592, 593 [1st Dept 2009] ["Petitioner's time to commence the (CPLR article 78) proceeding was not extended by her administrative appeal of (the) determination" to terminate her probationary employment as a per diem substitute teacher]; Matter of Triana v Bd. of Educ. of the City School Dist. of the City of New York, 47 AD3d 554, 557 [1st Dept 2008] ["The law is well established that a decision to terminate the employment of a probationary teacher is final and binding on the date the termination becomes effective, and this is true even in circumstances where administrative review is available"] [internal citations omitted];and Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140, 140-41 ...


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