Terms of a collective bargaining agreement and a memorandum of understanding required the exhaustion of administrative remedies before initiating litigation

Plaintiff, an assistant principal, commenced this action alleging that the New York City Department of Education [Employer] retaliated against her after she reported a violation of Social Services Law §413 by her then-principal and that she was constructively discharged from her position by Employer.

Noting that a public employee may be required to arbitrate such a claim where the employee "is subject to dismissal or other disciplinary action under a final and binding arbitration provision" or where the employee "is subject to a collectively negotiated agreement [CBA] which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement".

Pursuant to the terms of the relevant CBA between Plaintiff's union and the Employer, grievances which are not resolved after a two-step internal process must be submitted to arbitration. 

The CBA defines a "grievance," and a subsequent Memorandum of Agreement (MOA) between Plaintiff's union and Employer, which "by its terms became part and parcel of the CBA", added an antiretaliation provision that provides, among other things, "The harassment, intimidation, retaliation and discrimination of any kind because an employee in good faith raises a concern or reports a violation or suspected violation of any Department policy, rule/law/regulation or contractual provision ... is prohibited."

Observing that the MOA was incorporated into the CBA, the Appellate Division opined that Plaintiff's claims of retaliation in violation of the MOA's antiretaliation provision constitutes a grievance within the meaning of the CBA.

The Appellate Division held that Plaintiff "was required to grieve her complaint before commencing this action" and that Supreme Court had properly granted the Employer's "motion to dismiss based on [Plaintiff's] failure to exhaust her administrative remedies".

The Appellate Division also noted Plaintiff's "course of conduct in demanding arbitration, citing ... the CBA's grievance procedures and the MOA's antiretaliation provision,  confirms that the arbitration of the [Plaintiff's] claim was required".

Click HERE to access the Appellate Division's decision posted on the Internet.

New York Data and AI Summit to be held in Albany, New York May 14, 2026

As data and AI continue to reshape how governments operate, this summit brings together public-sector leaders and technology partners to explore how better data and smarter tools can improve decision-making, collaboration and services for New York’s communities. 

Registration is closed

Registration for this event is now closed as capacity has been reached. Onsite registration is available beginning at 1:35 pm May 14, 2026. To be added to a waiting list for full-day, please fill out the form, or if you have any questions, please contact Lee Vang at lvang@govtech.com.

View the full agenda and join the New York Data & AI Summit on May 14, 2026, at the Albany New York Marriott Hotel for a day of practical insights and peer-driven discussions focused on:

    Advancing AI initiatives across government 

    Using data to strengthen citizen services

    Building governance frameworks for responsible AI adoption

    Real-world case studies from local leaders

Register now to make certain you secure your spot!

N.B. Open to Public Sector only. No charge to participate.

This announcement has been posted on the Internet by NYPPL pro bono.

In an administrative appeal to the New York State Commissioner of Education the petitioner had the burden of proof

New York State Commissioner of Education Betty A. Rosa dismissed an appeal concerning the election of a district’s school board [Board] election and budget vote in which the Petitioner [Appellant] was a candidate for a position on the board.  

After the polls closed, Appellant requested to view the original voting machine receipts and inspect the absentee ballots.  Appellant was advised to submit a Freedom of Information Law (“FOIL”) to obtain these documents. The Appellant submitted such a request on May 21, to which the Board responded on June 2. 

Appellant, contending that he was denied the opportunity to inspect the voting machine receipt and absentee ballots on the night of the election, and asserted the that the absentee ballots were counted “behind closed doors, out of view of the candidates and the public” and asked the Commissioner to find that the Board had violated Education Law §§2035 and 2610 to issue

1. An order compelling the release and verification of the original machine receipts; and 

2. An order invalidating the election results. 

The Board contended that Appellant's petition should be dismissed for, among other reasons, the Appellant's failure to comply with the regulations governing appeals to the Commissioner and contended that Appellant failed to establish a clear legal right to his requested relief.

The Commissioner observed that to invalidate the results of a school district election, the petitioner must either: 

(1) establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or

(2) demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Citing a number of earlier Decisions of Commissioners of Education, Commissioner Rosa opined that implicit in those decisions is a recognition that "it is a rare case where errors in the conduct of an election are so pervasive as to vitiate the fundamental fairness of the election" and, citing 8 NYCRR 275.10, observed that in an appeal to the Commissioner, "a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief'.

Finding that Appellant had not "met his burden of proof" as there was no evidence that Appellant submitted a request to inspect the voting machine tallies and absentee ballots on the night of the election, and the Board subsequently responded to such a request in a timely manner.

Observing that the Appellant "provides no other evidence to suggest that [the Board] violated the Education Law or that any irregularities occurred that affected the outcome of the election", the Commissioner ruled that "the appeal must be dismissed", noting the ruling in Appeal of Crenshaw, 63 Ed Dept Rep, Decision No. 18,353 and other decisions of Commissioners of Education.

Click HERE to access the decision of Commissioner of Education in the instant matter posted on the Internet.

Selected items posted on the Internet during the week ending April 10, 2026

Navigating Dash Cams: A Guide for Union Engagement Navigating union concerns around dash cams? This guide shows public sector leaders how to build trust, address privacy head-on, and create fair policies that support both safety and morale. DOWNLOAD

Fueling Transportation: Safety, Security and Savings with Data Explore how transportation agencies can harness data to improve safety, strengthen security and drive measurable cost savings. This case study highlights how Caltrans modernized its operations by unifying maintenance, permitting and asset management systems.   DOWNLOAD

AI Compliance 2026: Policy Was the Easy Part Explore why compliance is more than rules and how governments can implement AI responsibly. READ NOW

Modernizing and Funding Cybersecurity in the Age of AI This paper explores how state and local governments can modernize cybersecurity strategies to keep pace with rapidly evolving, AI-driven threats. DOWNLOAD

The H.R. 1 Mandate: Modernizing Medicaid and SNAP H.R. 1 adds substantial administrative obligations to Medicaid and food assistance programs. Learn why automation is essential to handle growing workloads and complexity. DOWNLOAD

The 2026 State of Online Payments This sixth annual report delivers essential insights into how, when, and why Americans are paying their bills digitally.  DOWNLOAD

Securing the Reset: How Idaho Strengthened Security and Governance This case study explores how transitioning to a FedRAMP-authorized environment enabled greater accountability, streamlined operations and enhanced protection of sensitive data, while reducing the burden of legacy systems. DOWNLOAD 

From Buzz to Benefit: Making AI Mission-Relevant Public sector leaders are under pressure to turn AI from a promising concept into measurable impact, but many initiatives stall at the pilot stage. This paper explores how agencies can move beyond experimentation by aligning AI investments with mission-driven priorities and address common barriers like cost and governance. DOWNLOAD

Why Identity Is Now Core HHS Infrastructure For HHS agencies, identity verification is no longer a support support function. This paper explains how modern identity platforms give agencies a consistent, risk-based way to verify new applicants and returning beneficiaries. DOWNLOAD

To access Justia's list of its Most Popular Employment Law Blogs Click HERE

Administrative Law Judge finds that there was an insufficient nexus between the employee’s off-duty conduct and his public employment to establish misconduct

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Michael D. Turilli recommended dismissal of charges against the Respondent, an emergency medical technician [EMT] employed by the New York City Fire Department [FDNY] in its Bureau of Emergency Medical Services [EMS] after the FDNY failed to prove the EMT's alleged misconduct.

FDNY had alleged that four posts EMT had displayed on his personal Facebook account contained offensive gender-based content in violation of FDNY's Social Media Policy, EEO Policy, and Code of Conduct.

Noting that EMT had not identified himself as an EMT nor as a FDNY employee on his personal Facebook account, the posted content Facebook did not directly relate to EMT’s employment and that there was no evidence that any of EMT’s co-workers viewed or were likely to view the Facebook posts at issue, the ALJ held that there was an insufficient  nexus between EMT’s off-duty conduct and his employment as an EMT by NYFD to establish misconduct.

The ALJ also found that "the First Amendment" protected EMT’s online speech from discipline and opined that EMT’s posts related to matters of public concern in that they touched upon issues of gender identity, public education, and diversity but there was insufficient evidence to establish the potential for a hostile work environment at FDNY or disruption to the public perception of EMS.

Accordingly, the ALJ recommended the dismissal of the disciplinary charges served on EMT.

Click HERE to access Judge Turilli's findings and ALJ's recommended disposition of the matter posted on the Internet.