Matter of Hicks v Department of Educ. of City of N. Y.

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Matter of Hicks v Department of Educ. of City of N. Y. 2012 NY Slip Op 31594(U) June 12, 2012 Supreme Court, New York County Docket Number: 100819/12 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -. SCANNED ON 611812012 [* 1] I SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 1 PART Justlce Index Number: 100819/2012 HICKS, DEBORAH INDEX NO. MOTION DATE DEPT. OF EDUCATION SEQUENCE NUMBER : 00 MOTION SEQ.NO. ARTICLE 78 ,were mad on thir motion toHor The followlng papers, numbered 1 to Notlce of MotionlOrder to Show Cause Answering Affldavltm - Aftldavltm - ExhlblG IWd. - Exhlblts I W8)I NO(#). Rsplylng Affldavh Upon the forqolng papem, It Is ordered that thls motion Is is decided in accordance with the acnexed decision. \ NEW YORK COUNTY CLERKS OFFICE Dated: I CHECK ONE: . tx 6 l,AL ..................................................................... 2. CHECK AS APPROPRLATE: 3. CHECK IF APPROPRIATE: .............. CASE DISPOSED MOTION IS: [rlOMNTED ................................................ DO NOT POST NON-FINAL DISPOSITION 0DENIED SElTLE ORDER ,J.S.C. 0GRANTED IN PART 0OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Petitioner, Index No. 100819/12 For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules and Claims Under the Executive Law and the Administrative Code of the City of New York, -againstThe Department of Education of the City of New York and the City of New York, HON. CYNTHIA KERN,J.S.C. FILED NEW YORK COUNTY CLERKS OFFICE Recitation, as required by CPLR 2 2 19(a), of the papers considered in the review of this motion for : Papers Notice of Motion and Affidavits Annexed .................................... Answering Affidavits and Cross Motion ...................................... Replying Affidavits...................................................................... Exhibits.. .................................................................................... Numbered 1 2 2 4 Petitioner brings this petition seeking a declaration that respondent the Department of EducRtion of the City of New York {the D0E ) s designation of petitioner as resigned or retired with charges pending was arbitrary and capricious and should be removed and that the charges brought should be declared null and void or, in the nlternative, if the court finds that thc disciplinary charges were timely commenced and served upon petitioner while she was still employed, a declaration that she is entitled to due process under Education Law 53020-a 8s well as the applicable collective bargaining agreement andor a name-clearing hearing, and damages [* 3] 1 4 for lost income, pain and suffering and injury to reputation. For the reasons set forth more fully below, the court finds that the charges were timely commenced and the petitioner is entitled to a hearing under Education Law $3020-a. The relevant facts are as follows. Deborah Hicks was a tenured special education teacher assigned to the Restart program, an alternative education program at St. Luke s -Roosevelt Hospital Center in New York City at the time of the relevant incidents. She had been employed by the DOE for more than 28 years. In mid-March 201 1 , petitioner allegedly engaged in a number of inappropriate actions with certain students. The Special Commissioner of Investigation for the New York City School District ( SCI ) subsequently commenced an investigation and substantiated the alleged incidents. Two more incidents were reported in April and SCI again conducted an investigation. SCI interviewed various witnesses. Petitioner refused to be interviewed about the alleged incidents. Once again, SCI substantiated the allegations and stated so in a letter dated July 8, 201 1. The letter recommended unspecified appropriate disciplinary action. On September 20, 20 1 1, petitioner met with Restart Principal Joan M. Indart-Etienne, who gave petitioner the SCI report and a letter which stated that You are hereby advised that the abovc-described conduct may lead to further disciplinary action, including an unsatisfactory rating, and disciplinary charges that could lead to the termination of your employment. There is a place on the letter for petitioner to sign and acknowledge receipt but the copy submilled by the DOE is blank. On September 27Ih,the DOE attempted to personally serve petitioi~ei. with a Notice of Charges that Principal Indart-Etienne had dccided to bring against her. Those attempts were unsuccessful so petitioner was served with the Notice nt Charges by certified mail, return receipt requested, and by regular mail on September 27,201 1 2 [* 4] Plaintiff apparently submitted her retirement application that same day but the receipt for that application indicates her retirement would not be effective until the next day, September 28, 201 1. Petitioner alleges that she had initially intended on retiring effective July 1, 20 1 1 but was advised to wait until the completion of an investigation by the SCI. Petitioner does not state who so advised her or whether such advice was given orally or in writing. As an initial matter, the petition is dismissed as against the City as it is not and was not petitioner s employer and therefore is not a proper party to this action. Petitioner s claims turn on wheii she was served with the charges and when she retired. Petitioner alleges that she retired on September 27, 201 1, that no charges were pending against her at the time and that therefore the indication on her record that she resigned or retired with charges pending is incorrect. Respondents argue that the charges against petitioner were served (although not received) while she was still employed on September 27 h, and that her retirement was not effective until the next day and that therefore, the indication on her record is accurate. The court denies the petition insofar as it seeks a declaration that the DOE S designation of petitionel- as having rtsigned or retired with charges pending was arbitrary and capricious and insofar as it seeks removal of that designation Respondent DOE served petitioner with charges on September 27, 201 1. Under CPLR $2 103(b) and ( c ) , service by mail is complete upon mailing, not receipt. As a result, the chmges were pending against petitioner as of September 27Ih. In addition, the sole piece of documentary evidence regarding petitioner s retirement date lists the effective date as Saptaimbtr 2RLh, September 27 . Thcrtforc, charges not were pending against respondent at the time of her retirement and the designation that she retired 3 [* 5] with charges pending is accurate. Since it is accurate, it cannot be arbitrary and capricious, nor should such designation be removed. Petitioner s request for a hearing pursuant to Education Law $3020-a is granted. Under §3020-a, an employee who is enjoying the benefits of tenure may have charges filed against her. That section then provides for procedures by which that employee can request a hearing and then provides for the conduct of the hearing. Petitioner alleges, and the DOE concedes, that she did request such a hearing and her request was denied. Petitioner was employed and tenured at the time charges were filed against her. Nothing in the statute requires the employee to still be employed or tenured at the time of the hearing. The statute only requires that the employee be enjoying the benefits of tenure at the time the charges are filed. Moreover, when petitioner filed her retirement application on September 27th, she did not know that charges were pending against her and might not have voluntarily retired had she known that fact. Although the DOE is correct that when a tenured teacher retires voluntarily, she relinquishes her tenure rights (see Gould v Board of Educ of Sewanhuh Cent High School Disr , 81 N Y 26 446 (1 993)), respondent does not city any authority, and the court has found none, for the prtpositioil that those rights include the right to R 93020-a hearing. Therefore, thc DOE is ordered to hold E I $3020-a hearing. Finally. the court turns to pclitioner Y request fur a Cnwwclctirlnghearing. Thlv rcquesl is moot in light of the fact thnl this coul-t hRs ordered n 43020-a hearing. Petitioner s request for damages for the allegedly arbitrary and capncious actions of the DOE IY also denied as moot 8s this court has found that the DOE did not act arbitrarily or capriciously. Accordingly, the petition is granted only to the extent that the DOE is ordered to hold B 4 [* 6] $3020-a hearing on the charges pending against petitioner. This constitutes the decision, order and judgment of the court. Dated: 6 I I 1\ 1 J.S.C. FILED NEW YORK COUNTY CLERK S OFFICE 5

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