July 15, 2013
Leslie JEFFREY, Petitioner(s),
Dennis M. WALCOTT, Chancellor, New York City Department of Education, the New York City Department of Education, and Cassandra Hundley, Principal, PS 38Q, Respondent(s). No. 100068/13.
This decision has been referenced in a table in the New York Supplement.
MANUEL J. MENDEZ, J.
Upon a reading of the foregoing cited papers, it is ordered and adjudged that this Article 78 Petition is granted. Respondents' Cross-Motion is denied.
In this Article 78 Proceeding, Petitioner seeks a judgment annulling and rescinding Respondent's, the New York City Department of Education (" DOE" ), determination, compelling the DOE to expunge their files, and an award of back pay and other benefits lost.
Petitioner has been employed by the DOE as a paraprofessional since 2009. At all times relevant, Petitioner was assigned to a 2nd grade special education class.
On March 20, 2012, Petitioner received a letter from Respondent Cassandra Hundley (" Principal Hundley" ) scheduling an appointment to investigate an allegation of corporal punishment.
On March 30, 2012, Petitioner met with Principal Hundley to discuss the allegations. At the meeting, Principal Hundley informed Petitioner that the mother of one of the students in Petitioner's class had alleged that Petitioner had pulled the student (" T.M." ) by his neck and shoulders, pulled his clothing, and pushed him on his back.
Principal Hundley also showed Petitioner handwritten statements' from eight other students, supposedly regarding Petitioner's interaction(s) with T.M.
Petitioner denied the allegations of corporal punishment.
At the conclusion of the meeting, Principal Hundley notified Petitioner that she was going to refer the allegations to the DOE's Office of Special Investigations (" OSI" ).
Petitioner submitted a written response to Principal Hundley wherein she again refuted the allegations.
From when the allegations were first received, Principal Hundley told Petitioner that she was not to be around children. Despite this statement, Principal Hundley kept assigning Petitioner to tasks that involved interaction with children. Sometime in April 2012, Petitioner was assigned to replace another paraprofessional in a 2nd grade class. Petitioner remained in that 2nd grade class until the conclusion of the 2012 school year.
At the conclusion of the 2012 school year, Principal Hundley informed Petitioner that DOE's OSI had not rendered a decision regarding the allegations of corporal punishment. The record before this Court contains no information about any investigation or determination by DOE's OSI.
In a letter dated September 4, 2012 (the " Suspension Letter" ), Principal Hundley informed Petitioner that, " [Principal Hundley] investigated the complaint made by [T.M.]. The investigation included [Principal Hundley's] discussion with [T.M.'s mother], interviews with students in [Petitioner's] class who wrote witness statements, and Mrs. Gassman, teacher."
In the Suspension Letter, Principal Hundley stated that, " I have evaluated all of the investigatory results, including your response at our March 30, 2012 meeting and conclude that after completing the investigation, a specific date of occurrence could not be determined. I also could not determine whether or not you have pulled [T.M.] by the his neck or shoulders, or pushed him on his back [as his mother alleged]. However based on statements made by some of the students in the class, I conclude that you have grabbed [T.M.] by the arm and pulled on his sleeves in the past."
Based on the above mentioned conclusion, Principal Hundley suspended Petitioner for two days without pay.
On September 11, 2012, Petitioner initiated a Step 1 grievance, to challenge her suspension, as provided for in the Collective Bargaining Agreement (" CBA" ) between the DOE and Petitioner's Union. Step 1 involves an informal discussion with the head of the school, which in this case would be Principal Hundley. From the record before this Court, Petitioner never received any response to her Step 1 grievance request.
On October 12, 2012, Petitioner's Union requested a Step 2 grievance conference, which the CBA provides for as the next step if the matter is not resolved at Step 1. Step 2 is an appeal to the DOE's Chancellor, which in this case is Respondent Dennis M. Walcott. The CBA requires a decision on a Step 2 grievance request " within ten school days after the appeal is received." Respondents make reference to a March 11, 2013 Step 2 grievance decision, but neglected to provide the Court with a copy.
On January 7, 2013 Petitioner commenced this Article 78 Proceeding. Respondents Cross-Move to dismiss the Proceeding.
The Court will first address Respondents' Cross-Motion.
Respondents' Cross-Motion seeks dismissal of the Proceeding on the basis of two rationales.
First, Respondents argue that the September 4, 2012 Suspension Letter was a final decision' from which Petitioner had four months in which to initiate an Article 78 Petition. See CPLR Section 217(1) . Respondents argue the Proceeding should be dismissed because Petitioner failed to initiate this Petition within four months of the supposedly final' Suspension Letter.
Next, Respondents argue that Petitioner's case must also be dismissed because there is no final decision' as required by CPLR Section 7801(1) because Petitioner has failed to exhaust her administrative remedies.
Respondents' second argument astutely points out that the Suspension letter is not, in fact, a final decision which starts the four month statute of limitations. The CBA provides Petitioner with administrative remedies to challenge the Suspension Letter.
" It is well established that an aggrieved union member whose employment is subject to the terms of a collective bargaining agreement entered into by his union and employer must first avail himself of the grievance procedure set forth in the agreement before he can commence an action in court." Cantres v. Bd. of Educ. of City of New York, 145 A.D.2d 359, 535 N.Y.S.2d 714 (N.Y.A.D. 1st Dept.1988).
As for when a final decision was reached, the Court must consult the source of Petitioner's administrative remedies, the CBA.
Article Twenty Two of the CBA provides that the aggrieved " employee shall initiate the grievance at Step 1." From the record, it appears Petitioner's efforts in this regard were completely ignored.
Article Twenty Two of the CBA also provides that Step 1 grievances, " may be appealed by the Union." The Step 2 grievance is an appeal by the Union to the Chancellor, a Step 3 grievance involves an appeal by the Union to arbitration.
From the language of the CBA, it is clear that after Step 1, employees are no longer in control of the appeal process. It is entirely up to the Union whether or not to pursue Step 2 and then Step 3.
In the present case, Petitioner's Union did initiate a Step 2 grievance. Clearly, Petitioner's case was not final anytime before Petitioner's Union's October 12, 2012 Step 2 Grievance Request Letter.
Respondents argue that because Petitioner did not wait for a response to the Step 1 and Step 2 grievance requests or initiate a Step 3 grievance, she has not exhausted her administrative remedies. See Cantres Supra.
The Court is certain that Petitioner's case reached a final ruling sometime after the October 12, 2012 Step 2 Letter, but will refrain from deciding exactly when that occurred.
If the language of the CBA were to control, there was a final decision twenty days after the Chancellor received the Step 2 Letter. The CBA establishes this as the deadline for Petitioner's Union to have filed a Step 3 grievance.
After the CBA established deadlines for the DOE to respond to the Step 1 and Step 2 grievance requests had passed, Petitioners only remaining remedy was to request that her Union file a Step 3 grievance.
It is clear Petitioner was in contact with her Union regarding a Step 3 grievance, because her Union informed her that it would not be initiating a Step 3 grievance.
However, Petitioner states that her Union did not inform her until December 2012 that it would not be pursuing a Step 3 grievance. The Court was not made aware of why the Union waited so long to notify Petitioner. Respondents did submit an Arbitration Decision concerning delays in the issuance of some 200 Step 2 grievance decisions. But since the Arbitration Decision submitted by Respondents was dated February 7, 2007, two years before Petitioner even started working for the DOE, it is not clear to the Court precisely how this Arbitration Decision affects Petitioner's administrative remedies.
The Court might even have considered the DOE's referred to, but never provided, March 11, 2013 Step 2 Decision, rendered four months late, to have restarted the four month statute of limitations had the Petitioner needed to avail herself of such.
In any event, from Petitioner's perspective, her administrative remedies were exhausted either in November 2012 when the CBA established deadline for filing a Step 3 grievance had passed without her Union taking action or in December 2012 when her Union actually informed her it would not be pursuing a Step 3 grievance. Based on either date, this Petition is timely.
An administrative decision will withstand judicial scrutiny if it is supported by substantial evidence, has a rational basis and is not arbitrary and capricious. See Matter of Pell v. Board of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974); Ansonia Residents Ass'n v. New York State Div. of Housing and Community Renewal, 75 N.Y.2d 206, 551 N.E.2d 72, 551 N.Y.S.2d 871 (1989).
The Suspension Letter is the only documentation supplied to the Court providing a record of the DOE's decision. In the Suspension Letter, Principal Hundley states that she was not able to determine the truth regarding any of the allegations made by T.M. and his mother.
Despite this, Principal Hundley decides to substantiate allegations of corporal punishment based on the written statements of eight students. Principal Hundley is silent as to how her discussion with Mrs. Gassman, the teacher, factored into her decision, and there is nothing in the record indicating what that discussion entailed.
Seven of the eight written statements were submitted by Respondents as part of the record in these proceedings. At the outset, the Court notes that these are the written statements of 2nd grade special education students. All of the statements, which are in English, include translations' at the bottom whereby someone took it upon themselves to interpret what the unnamed individual concludes the children meant to say.
Four of the seven letters clearly and unequivocally state Petitioner never touched T.M. Three statements mention physical contact between Petitioner and T.M. Two state that Petitioner grabbed T.M.'s arm and one states that Petitioner grabbed T.M.'s clothes. No description, context, or explanation accompanied these statements.
According to the Suspension Letter, those three written statements were enough for Principal Hundley to substantiate allegations of corporal punishment against Petitioner and reflect such in Petitioner's permanent record with the DOE.
Respondent's papers do not contain a single argument addressing Petitioner's legal arguments, and for good reason, " [a]rbitrary action is without sound basis in reason." Pell v. Bd. of Ed., Supra.
For Principal Hundley to substantiate allegations of corporal punishment against Petitioner based solely on what those three children wrote at someone else's prompting, after she was unable to determine any truth to the original allegations, is beyond arbitrary.
Principal Hundley was unable to substantiate the original allegations, but under the cover of the same investigation decided to substantiate' the allegations' made by three students in their obviously prompted letters, without any other corroboration. Such a determination is both arbitrary and capricious.
Accordingly, it is the decision and judgement of this Court that the Petition is granted. Respondents' Cross-Motion is denied.
Accordingly, it is ORDERED and ADJUDGED that the Petition is granted, and it is further,
ORDERED that Respondents' Cross-Motion is denied, and it is further,
ORDERED that the September 4, 2012 Letter substantiating allegations of corporal punishment against Petitioner is annulled, and it is further
ORDERED that the DOE shall expunge all reference to the September 4, 2012 Letter determination and anything else referring to it from its files, including, but not limited to, any reference to a substantiated allegation of corporal punishment and the two day suspension, and it is further
ORDERED that the DOE shall award Petitioner back pay and other benefits lost as a result of Petitioner's two day suspension.