September 03, 2021

Failure to exhaust administrative remedies fatal to employee's efforts for judicial review an alleged unfair practice charge filed with the Public Employment Relations Board

A school secretary [Plaintiff] formerly employed by the New York City Department of Education [DOE] told her union she had  been subjected to alleged harassment by her DOE supervisors. The union informed Plaintiff that it would not file a "special complaint" with DOE on her behalf. Plaintiff then filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the union had violated of its duty of fair representation within the meaning of Civil Service Law §209-a by failing to file the "special complaint" with DOE.

A PERB administrative law judge held a hearing and subsequently dismissed Plaintiff's improper practice charge. Plaintiff next initiated a CPLR Article 78 action naming DOE and PERB as respondents. Supreme Court granted the Respondents' separate motions to dismiss Plaintiff's petition "for failure to exhaust her administrative remedies", and dismissed Plaintiff's Article 78 petition. Plaintiff appealed the Supreme Court's rulings.

Generally, a party who objects to the determination of an administrative agency is required to exhaust all available administrative remedies before seeking judicial review. As was noted by the Appellate Division in Amorosano-LePore v Grant, 56 AD3d 663, "... there are some exceptions to the rule requiring the exhaustion of administrative remedies, such as demonstrating that efforts to avail oneself of the available administrative procedures such as those that are set out in a statute or a collective bargaining agreement would be futile and thus excuse such failure to exhaust those remedies." The Amorosano-LePore court then opined that Amorosano-LePore failed to prove that efforts to exhaust her administrative remedies would have been "an exercise in futility."

In Plaintiff's case the Appellate Division said that administrative review of the ALJ's decision dismissing the charge of improper practice by PERB was available.*  Citing Jardim v New York StatePub. Empl. Relations Bd., 265 AD2d 329, the Appellate Division sustained the Supreme Court's rulings, explaining that Plaintiff, having failed to seek a review of the ALJ's decision by PERB, had failed to exhaust her administrative remedies.

The Appellate Division held that the Supreme Court had properly granted the  separate motions submitted by DOE and PERB to dismiss Plaintiff's petition insofar as asserted against each of them for failure to exhaust her administrative remedy by failing to appeal the ALJ's ruling to PERB and dismissed Plaintiff's appeal "with one bill of costs."

* See 4 NYCRR 213.2, 213.10.

Click HEREto access the Appellate Division's decision in instant case.

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