December 2, 2013
In the Matter of the Application of Tekadai Kerrodar, Petitioner,
State of New York, Office of Court Administration, Respondents.
ALEXANDER W. HUNTER JR., J.
Pro se petitioner's application for an order pursuant to Article 78, dismissing disciplinary charges removing petitioner from her current position as an associate court clerk and ordering petitioner's return to work in her current position or promotion to a higher position, is denied and the proceeding is dismissed without costs and disbursements to either party. Respondents' motion to dismiss is granted.
Pro se petitioner Tekadai Kerrodar has been employed by respondents State of New York, Office of Court Administration since 1993. Petitioner has held the title of associate court clerk since 2010. Petitioner's work location is the Queens Supreme Court, Mental Hygiene Department located at 89-11 Sutphin Blvd., Room 109, (the "Mental Hygiene Department").
On January 23, 2012, Department of Citywide Administrative Services ("DCAS") employees changed an air filter in the Mental Hygiene Department, which briefly caused an odor to exist. On February 3, 2012, petitioner informed her supervisor that she was not feeling well due to unspecified reasons. Since February 6, 2012, petitioner has been absent from work due to the odor.
On February 21, 2012, petitioner submitted a workers' compensation claim and a doctor's note explaining that she could return to work on March 5, 2012. Petitioner did not return to work on March 5th, nor did petitioner contact respondents to explain her absence from work for over one month. On March 7th, respondents directed petitioner to submit forms to comply with petitioner's workers' compensation claim.
On March 13, 2012, the Department of Labor Division of Safety and Health, Public Employee Safety and Health Bureau ("PESH") received a formal complaint about the odor from an employee representative. On March 19, 2012, a partial health inspection was conducted at the Mental Hygiene Department. PESH determined that the complaint alleging hazardous working conditions could not substantiated.
On March 20, 2012, respondents received form WH-380-E, which indicated that petitioner was seen by a physician on March 15, 2012 due to possible exposure to occupational fumes causing blurred vision, dizziness, tearing, rhinorrhea, and nausea. The form did not indicate a treatment schedule, diagnosis, or return to work date. By letter dated March 21, 2012, petitioner was directed to submit updated medical documentation. The letter was explicit in notifying petitioner that she could not return to work until her physician submitted a diagnosis and prognosis of petitioner's ability to safely return to work. Petitioner did not respond to the letter.
Over subsequent months, numerous attempts were made to contact petitioner without success. Letters dated April 4, 2012; May 17, 2012; June 21, 2012; and July 24, 2012 directed petitioner, among other things, to submit updated medical documentation. Petitioner did not respond to any of these letters. In September 2012, then chief clerk Tracy Catapano-Fox contacted petitioner's union president to address the situation. The union president indicated to Catapano-Fox that petitioner desired to be transferred to Kings County Supreme Court.
On October 3, 2012, Catapano-Fox held a meeting to discuss the possibility of petitioner returning to work. Present at the meeting was petitioner, the union president, petitioner's supervisors, personnel, and the principal court clerk. During the meeting, petitioner did not explain whether she was under a doctor's care or her ability to return to work nor did she explain her failure to communicate with her supervisors. At the conclusion of the meeting, petitioner was informed that the only way she would be considered for a reassignment was if she submitted sufficient medical documentation indicating her ability and fitness to return to work. The union president assured those present at the meeting that petitioner would provide the necessary medical documentation to support her extended leave and comply with the chief clerk's directives. Since the October 3, 2012 meeting, petitioner has failed to contact the chief clerk or her supervisors.
On or about October 4, 2012, respondents received an updated form WH-380-E, which indicated that petitioner did not follow up with her physician until after her symptoms had resolved. The form did not indicate a return to work date. Respondents deemed the form insufficient and petitioner was given until November 23, 2012 to provide sufficient medical documentation. In December 2012, Catapano-Fox requested that petitioner's employment be terminated. On or about March 26, 2013, petitioner was informed that her employment status was removal pending discharge.
On April 15, 2013, petitioner was charged with two acts of misconduct: (1) abuse of time and leave privileges by being excessively absent and (2) failure to properly communicate with supervisors or follow directives to provide valid medical documentation.
On April 24, 2013, via facsimile, petitioner submitted a letter from a physician stating that she had been examined on April 24th and that there were no medical conditions precluding petitioner from performing her functions as a court clerk. Additionally, by letter dated May 6, 2013, a licensed psychologist opined that petitioner has no psychological problems and was likely to remain psychologically healthy going forward in the future.
On or about June 14, 2013, petitioner filed a discrimination complaint with the State Division of Human Rights ("SDHR") for unlawful discriminatory practice relating to employment in violation of Article 15 of the Executive Law section 296 because of age, creed, national origin, and race/color. Petitioner alleged that the date of the most recent or continuing discrimination took place on June 11, 2013. Petitioner also charged respondents with violating Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. By letter dated July 29, 2013, respondents submitted a position statement to SDHR. Petitioner alleges to have withdrawn her complaint with SDHR on August 9, 2013.
By order to show cause dated July 12, 2013, petitioner commenced the instant special proceeding averring that: (1) she was subjected to unsafe working conditions, which prevented her from performing her duties in her current position and from taking the principal court clerk promotional examination held in October 2012; (2) she submitted sufficient medical clearance documents to return to work and made repeated requests to return to her position; and (3) she was subjected to discriminatory and retaliatory treatment.
On July 30, 2013 and September 6, 2013, a disciplinary hearing was held before Judicial Hearing Officer, the Hon. Herbert J. Adlerberg ("JHO Adlerberg") pursuant to article 23 of petitioner's New York State Clerks Association union contract (the "union contract"). JHO Adlerberg's report and recommendation, along with the record of the proceedings, shall be forwarded to the Deputy Chief Administrative Judge for New York City Courts, the Hon. Fern A. Fisher to issue a final determination, which may be appealed by petitioner to the Chief Administrative Judge of the Courts or by an application to the courts.
Respondents move to dismiss the petition in its entirety on the grounds that: (1) the petition fails to state a cause of action; (2) petitioner failed to exhaust her administrative remedies; and (3) there has been no adverse final determination against petitioner.
Petitioner opposes respondents' motion to dismiss averring that: (1) she has been requesting to return to work since August 2012 and submitted adequate medical documentation; and (2) respondents acted in bad faith and with malicious intent by refusing to accept valid medical documentation. Additionally, petitioner highlights the fact that her Article 78 proceeding encompasses the three writs of mandamus, prohibition, and certiorari.
"[A] proceeding under this article shall not be used to challenge a determination which is not final or can be adequately reviewed by appeal...to some other body or officer...." CPLR 7801(1). It is well settled that a petitioner must exhaust all available administrative remedies before obtaining judicial review of agency actions. See Matter of DiBlasio v. Novello, 28 A.D.3d 339, 341 (1st Dept. 2006). "Thus, absent extraordinary circumstances, courts are constrained not to interject themselves into ongoing administrative proceedings until final resolution of those proceedings before the agency." Id. A petitioner whose terms of employment are subject to a collective bargaining agreement must pursue the grievance procedure outlined in that agreement prior to seeking relief through an article 78 proceeding. See Matter of Hosp. v. Seniuk, 86 A.D.2d 667, 668-669 (2nd Dept. 1992).
Petitioner is a member of the New York State Court Clerks Association. Pursuant to the disciplinary procedure of article 23 of the union contract, petitioner was entitled to a disciplinary hearing which took place on July 30, 2013 and September 6, 2013. JHO Adlerberg shall make a record of such hearing and refer the matter to Judge Fisher for a final determination. It is only after petitioner is aggrieved by Judge Fisher's final determination that she may appeal such determination by petition to the Chief Administrative Judge of the Courts or by an application to the courts. Here, petitioner filed an order to show cause prior to participating in any disciplinary hearing and before receiving the final determination of Judge Fisher. Accordingly, petitioner's order to show cause is fatally premature and is dismissed for petitioner's failure to exhaust her administrative remedies.
Writs of prohibition or mandamus are only issued where there is a clear legal right to the relief sought because of their extraordinary nature. See Matter of Crain Communications, Inc. v. Hughes, 74 N.Y.2d 626, 628 (1989); Matter of Kevilly v. Honorof, 287 A.D.2d 504, 505 (2nd Dept. 2001). Even where there is a clear legal right, prohibition is available only when a court acts or threatens to act either without jurisdiction or in excess of its authorized powers. See Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569 (1988). Mandamus will lie only to compel the performance of a ministerial rather than a discretionary act. See Matter of Brusco v. Braun, 84 N.Y.2d 674, 679 (1994).
Here, petitioner is not entitled to a writ of prohibition to stop the "fraudulent charges", as her disciplinary hearing took place on July 30, 2013 and September 6, 2013. Accordingly, petitioner's application seeking writ of prohibition is hereby deemed moot.
Petitioner is not entitled to a writ of mandamus to restore her to her former position of associate court clerk or promote her to a higher position of principal court clerk, as mandamus clearly does not lie here. Petitioner has not established a clear legal right to either position of associate court clerk or principal court clerk. DiBlasio v. Novello, 28 A.D.3d at 342.
This court does not come to any determination regarding petitioner's remaining claims of discrimination and retaliation, as petitioner previously commenced an action pending before the State Division of Human Rights, Case No. 10162809.
Accordingly, it is hereby
ADJUDGED that petitioner's application is denied and the proceeding is dismissed without costs and disbursements to either party. Respondents' motion to dismiss is granted.