Plaintiff, an assistant principal, commenced this action alleging that the New York City Department of Education [Employer] retaliated against her after she reported a violation of Social Services Law §413 by her then-principal and that she was constructively discharged from her position by Employer.
Noting that a public employee may be required to arbitrate such a claim where the employee "is subject to dismissal or other disciplinary action under a final and binding arbitration provision" or where the employee "is subject to a collectively negotiated agreement [CBA] which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement".
Pursuant to the terms of the relevant CBA between Plaintiff's union and the Employer, grievances which are not resolved after a two-step internal process must be submitted to arbitration.
The CBA defines a "grievance," and a subsequent Memorandum of Agreement (MOA) between Plaintiff's union and Employer, which "by its terms became part and parcel of the CBA", added an antiretaliation provision that provides, among other things, "The harassment, intimidation, retaliation and discrimination of any kind because an employee in good faith raises a concern or reports a violation or suspected violation of any Department policy, rule/law/regulation or contractual provision ... is prohibited."
Observing that the MOA was incorporated into the CBA, the Appellate Division opined that Plaintiff's claims of retaliation in violation of the MOA's antiretaliation provision constitutes a grievance within the meaning of the CBA.
The Appellate Division held that Plaintiff "was required to grieve her complaint before commencing this action" and that Supreme Court had properly granted the Employer's "motion to dismiss based on [Plaintiff's] failure to exhaust her administrative remedies".
The Appellate Division also noted Plaintiff's "course of conduct in demanding arbitration, citing ... the CBA's grievance procedures and the MOA's antiretaliation provision, confirms that the arbitration of the [Plaintiff's] claim was required".
Click HERE to access the Appellate Division's decision posted on the Internet.