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August 13, 2012

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings


Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings
Katz v Board of Educ. of City School Dist. of City of N.Y., 2008 NY Slip Op 31935(U),  Supreme Court, New York County, Judge: Shirley Werner Kornreich [Not selected for publication in the Official Reports]

The New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher. The “notice” was sent by certified mail, return receipt requested and by regular mail. The certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. BOE subsequently sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail. Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentiaand the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

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