Exhausting the administrative remedy

Exhausting the administrative remedy
Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78

Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.

If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.

What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.

As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.

New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.

The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.

The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.

Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”

The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.

Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.

In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”

The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
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