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May 19, 2017

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court


An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court
Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2017 NY Slip Op 03850, Appellate Division, First Department

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014."

The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but, citing Tucker  v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

The court explained that Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR Article 78 and thus Supreme Court "erred in relieving [Petitioner] of her obligation to exhaust her administrative remedies."*

In any event, said the court, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason." Upon such termination "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden."

In this instance the Appellate Division found that the record indicated that Petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records.

As to Petitioner's claim of the investigator's delay in publishing the written report concerning the matter, the court said that such delay "amounted to a mere technical violation of the collective bargaining agreement," as Petitioner had received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report. The Appellate Division then opined that Supreme Court's "conclusion of bad faith stemming from the lateness of the report was purely speculative."

* However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of his or her administrative remedies is not required where his or her so doing would constitute an exercise in futility.

The decision is posted on the Internet at:

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