The Commissioner of the New York City Department of Health and Mental Hygiene issued an order [The Vaccine Mandate] requiring employees of the New York City Department of Education [DOE] to be vaccinated against COVID-19 and provide proof of such vaccination.
The United Federation of Teachers [UFT], the employer organization representing a majority of teachers in New York City public schools, filed a demand for arbitration challenging the implementation of the Vaccine Mandate. The arbitrator issued an award [Impact Award] establishing a process for the implementation of the Vaccine Mandate. The Impact Award provided, among other things, that "[any] unvaccinated employee who has not requested an exemption ..., or who has requested an exemption which has been denied, may be placed by the DOE on leave without pay."
The Impact Award further provided that "[employees] who become vaccinated while on such leave without pay and provide appropriate documentation ... prior to November 30, 2021, shall have a right of return to the same school," and "beginning December 1, 2021], the DOE shall seek to unilaterally separate such employees who remained on leave without pay".
A tenured teacher [Petitioner] employed by DOE was placed on leave without pay after failing to submit proof of vaccination by the deadline. DOE subsequently terminated Petitioner's employment. Petitioner then commenced the instant "hybrid proceeding" pursuant to CPLR Article 78 seeking judicial review of the Impact Award, alleging that, among other things, it was issued in violation of Civil Service Law §209(3)(f), and asked Supreme Court to annul DOE's determination to terminate her employment as being arbitrary and capricious.
Supreme Court, however, granted DOE's cross-motion and dismissed Petitioner's "proceeding/action". Petitioner appealed the Supreme Court's ruling to the Appellate Division.
The Appellate Division said with respect to the Petitioner's seeing review of the Impact Award, it should have have been denominated a CPLR Article 75 proceeding and, citing Matter of Baksh v New York Racing Assn., Inc., 225 AD3d 689 and other decision, noted that "[Appellate] courts are empowered to convert a civil proceeding into one which is proper in form under CPLR 103(c), making whatever order is necessary" and then converted its review of the Impact Award into a proceeding pursuant to CPLR Article 75.
The Court then opined that as Petitioner was not a party to the arbitration between the DOE and the UFT, she did not have standing to seek judicial review of the Impact Award. The Appellate Division also observed that Petitioner's cause of action to recover damages for breach of contract arising from a collective bargaining agreement between the DOE and the UFT was properly dismissed by the Supreme Court as "A union member generally has no individual rights under a collective bargaining agreement which he or she can enforce against an employer".
Turning to Petitioner's argument that the Impact Award violated the disciplinary hearing procedures set out in Education Law §§3020 and 3020-a, the Appellate Division opined that such an argument was "without merit" as Petitioner "was not entitled to the hearing procedures outlined in Education Law §§3020 and 3020-a before being terminated for failure to comply with the vaccine mandate, because the mandate is a condition of employment".
Accordingly, the Appellate Division concluded that Supreme Court properly granted the DOE's cross-motion and dismissed the Petitioner's "proceeding/action".
Click HERE to access the Appellate Division's decision posted on the Internet.