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February 7, 2011

If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval

If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]

Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.

Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.

The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”

The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.

Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.

According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.

In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.

Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm