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October 26, 2010

Challenging an administrative determination while a related grievance is pending

Challenging an administrative determination while a related grievance is pending
Sokol v Granville CSD, 260 AD2d 692

The fact that a contract grievance is pending will not always bar an individual from suing. Nor must a complaint by a teacher necessarily be considered by the Commissioner of Education before it is ripe for adjudication by the courts. These points are illustrated in the Sokol case.

The Granville Central School District appointed David Sokol as a “noninstructional substitute teaching assistant/monitor” effective October 6, 1997. In January 1998, the district discontinued Sokol’s employment. The district viewed him as a temporary employee hired as a true substitute, while Sokol claimed he had been appointed to a vacant tenured position, and that his dismissal violated his due process rights.

Sokol served a “notice of claim” on the district and initiated an Article 78 action seeking a court order annulling his termination and directing the district to appoint him as a probationary teaching assistant retroactive to October 6, 1997.

The district did not file an answer to Sokol’s petition. It instead moved to dismiss Sokol’s Article 78 action on the grounds that:

1. A grievance was pending when Sokol filed his Article 78 action. This was a step three grievance [of a four step grievance procedure] challenging the district’s appointment of substitute teaching assistants filed by the Granville Central School Support Staff Association; and

2. Sokol had failed to exhaust his administrative remedy because he had not appealed his claims to the Commissioner of Education pursuant to Education Law Section 310.

Although these arguments proved persuasive to a state Supreme Court judge, the Appellate Division reversed the lower court’s action, holding that the existence of a grievance alleging violations of the collective bargaining agreement did not constitute an absolute bar to Sokol’s filing an Article 78 action. Nor was Sokol required to file an appeal with the Commissioner of Education before proceeding with his action at law.

The key element to this conclusion was that there was nothing in the record to indicate that Sokol was participating in the grievance brought by the Association.

The court cited the grievance itself, which said that Sokol was not a member of the Teachers Association and that he had not participated in the filing of the grievance, requested that it be filed on his behalf or actively participated in its prosecution.” Nor was the Association representing his interests in filing the grievance.

The Appellate Division commented that Sokol made a persuasive argument “that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.”

Sokol was not required to exhaust his administrative remedy by appealing to the Commissioner of Education pursuant to Education Law Section 310 because he had alleged violations of his statutory rights. This, the Appellate Division ruled, allowed him a “direct resort to the courts,” citing a number of cases including Cohn v Board of Educ. of Hammondsport Central School, 58 AD2d 977.

Sokol was asserting violations of the Education Law and corresponding regulations -- not provisions of the collective bargaining agreement -- as the basis for his Article 78 petition.

The Appellate Division said that “the grounds urged for relief” and remedies sought in each forum are separate and distinct.

Reversing the lower court’s dismissal of Sokol’s complaint, the district was directed to file an answer within 20 days of the date of the decision.
NYPPL

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