The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court
Matter of Neumann v Wyandanch Union Free School Dist., 2011 NY Slip Op 03859, Appellate Division, Second Department 

Sally Neumann sued the Wyandanch Union Free School District for its alleged breach of her employment contract. Supreme Court’s dismissal of Neumann’s breach of contract action. Neumann also claimed that she had attained tenure by estoppel as “Director of Technology” with the school district

Neumann, was employed by Wyandanch as its "Director of Technology" in November 2004. She was later transferred to the position of "Assistant Superintendent for Curriculum and Technology." In September 2008 the District assigned her to the position of "Assistant Director for Curriculum and Technology."

The collective bargaining agreement between the District and the Wyandanch Administrators Association provided that "Director" positions were eligible for tenure and represented by the Association, but the "Assistant Superintendent" position was nontenured and excluded from Association membership.

In July 2008, Neumann had entered into an employment contract with the District for her third year of employment as Assistant Superintendent. The contract provided that the "terms and conditions of employment" not otherwise addressed in the contract were incorporated from the collective bargaining agreement. Under the collective bargaining agreement, claims relating to its terms were subject to a mandatory grievance process.

In September 2008, following her assignment to the "Assistant Director for Curriculum and Technology" position, the District reduced Neumann's salary to $135,706. In November 2008, the District abolished Neumann's position, and no longer paid her a salary after that date.

Neumann commenced a hybrid CPLR article 78 proceeding and plenary action seeking a judgment declaring that she had acquired tenure by estoppel as a Director based in part on her service in the Assistant Superintendent position. She also sought damages based on the District's alleged breach of contract when it reduced and finally ceased to pay her the salary provided for in the July 2008 employment agreement.

The Supreme Court, relying on the doctrine of primary jurisdiction, dismissed Neumann’s action claiming she had acquired tenure by estoppel and directed her to raise her tenure claim before the Commissioner of Education. The court also dismissed her claim alleging breach of contract.

Addressing "The doctrine of primary jurisdiction,” the court explained that the doctrine provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 355. Further, said the court, "The doctrine . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such situations “the judicial process is suspended pending referral of such issues to the administrative body for its views.'"

In contrast, where the determination does not require the special competence of an administrative agency, the doctrine does not apply.

In this instance the Appellate Division ruled that the interpretation and enforcement of Neumann's employment agreement was not within the Commissioner of Education's specialized knowledge and experience. Rather its interpretation and enforcement depends on common-law contract rules that lie within the purview of the judiciary. Accordingly, said the court, Supreme Court’s dismissal of Neumann’s cause of action alleging breach of contract under color of the doctrine of primary jurisdiction was improper and the Supreme Court should have retained jurisdiction to decide that cause of action.

As to the School District’s argument that Neumann’s dismissal was nevertheless proper because she was required to exhaust her administrative remedies by submitting the matter to the grievance procedure mandated under the collective bargaining agreement, the Appellate Division said that “the clear terms of [Neumann’s employment agreement and relevant provisions of the collective bargaining agreement” indicate that Association’s grievance remedies were not available to Neumann with respect to her cause of action alleging breach of contract.

Consequently, Neumann was entitled to seek judicial review directly, and thus her cause of action breach of contract should not have been dismissed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03859.htm

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented 

Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] 

Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* 

Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci’s “excessive absences” made him unreliable and, therefore, incompetent to perform his duties. 

The §75 Hearing Officer found there was "...substantial evidence to support the charge of incompetence based upon [Iarocci’s] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was ... asserted in conclusory fashion by the witnesses who testified."  The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time.

West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal.

Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" 

Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law.” Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is "...so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of “excessive absence” including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934.

Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. 

Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. 

Distinguishing Iarocci’s situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that “When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, [following] progressive discipline and other incidents of poor performance at work.”

Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was  “disproportionate to the offense charged …” Judge Weiner said that the Town “should have given due weight to mitigating factors when deciding the appropriate penalty to impose.”

Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board “for the imposition of a penalty other than termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50794.htm

A series of annual appointments as an educator may not result in tenure by estoppel

A series of annual appointments as an educator may not result in tenure by estoppel

Mohr v Salamanca City School District, 267 A.D.2d 983

Seniority is one of the critical elements in determining the retention of an employee in layoff situations. Such seniority, however, is a function of having tenure with the individual’s employer, as the Mohr case demonstrates. As Mohr demonstrates, tenure is attained as a result of being continued in service after completing a probationary period and not simply completing a series of annual appointments.

Brian Mohr was appointed as a teacher’s aide in Salamanca’s Bilingual Education Program in 1978. He was reappointed annually to that position until 1982 when he was appointed as a Title VII funded Bilingual Resource Teacher [BFT] for one year.

In determining seniority for the purposes of a layoff, the District found that Mohr, the least senior teacher, and he was terminated. Mohr sued, contending that because of his earlier service with the district, he was not the least senior teacher in his tenure area. Mohr argued that he had acquired tenure by estoppel as a teacher as a result of his service with the district from 1987 through and including 1992. He claimed that this entitled him to “bump” a teacher in the Seneca Language/Iroquois Culture tenure area with less seniority or, alternatively, to be placed on the preferred list for employment in “similar positions”.

The Appellate Division said “Supreme Court properly rejected those contentions.”

According to the decision, although an individual who completes his or her probationary period may attain tenure by estoppel, Mohr had not been appointed to a “tenure track” position until 1993. Each of Mohr’s pre-1993 employments by the district was dependent on the district’s receiving grant funds. As Mohr had been employed under a series of one-year contracts rather than for a “probationary term,” the court said that he could not, and did not, attain tenure by estoppel. This meant that Mohr could not “bump” a teacher with less service with the district.

In Yastion v Mills, 229 A.D.2d 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that “tenure does not apply to this position.”

Mohr was no more successful with his claim that he should be placed on a preferred list. The Appellate Division said that “it is well settled that a teacher is entitled to be placed on a preferred eligible list if he or she is certified in the same or a similar tenure area.”

Pointing out that Mohr was not certified to teach in the Elementary Education or a similar tenure area, the court said that while he held a permit that was the equivalent of certification to teach Seneca Language/Iroquois Culture, “the closest tenure area to Seneca Language/Iroquois Culture is the foreign languages tenure area, which, said the court, applies to seventh grade and above, not to the elementary grades.” Accordingly, the Appellate Division dismissed this branch of his appeal as well, holding that Mohr was not “entitled to placement on a preferred eligibility list.”