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

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Matter of Grassel v Department of Educ. of City of N.Y. 2012 NY Slip Op 33054(U) December 15, 2012 Supreme Court, New York County Docket Number: 105552/2005 Judge: Anil C. Singh 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 1212612012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON,ANlL C. SINGH PRESENT: SUPREMECOURTJUS RCE PART JusUce -Index Numb& : 105552/2005 GRASSEL, RONALD k/ INDEX NO. vs. DEPARTMENT OF EDUCATION SEQUENCE NUMBER : 007 MOTION DATE MOTION SEQ. NO. VACATE The following papen, numbered I to -, Notice of MotionlOrder to Show Cause Answering Affldrvits - Exhlblts were read on this motion toffor -Amdavits - Exhibits IWr). IW 5 ) . INo(N. Replying Affidavits Upon the foregoing papers, it is ordered that this motion Is W,b* Dated: wm r d bb & - b A* f f 1. CHECK ONE: I...................................11.1.....,....................... A ~ H S DISPOSED E @c/&W -4 J.S.C. 0NON-FINAL DISPOSITION aDENIED GRANTEDINPART U O ~ E R .............,,.,...,..,,,. MOTION IS: nGRANTED c SUBMIT ORDER ] 3. CHECK IF APPROPRIATE: ........,.....................,.~~~~~,,,,,~,,,~, uSETTLE ORDER uDO NOT POST 0FIDUCIARY APPOINTMENT 5REFERENCE 2. CHECK AS APPROPRIATE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 X In the Matter of the Application of 1______1__""_________-------------I------------*---------"---------- I RONALD GRASSEL, . , DECISION AND ORDER Index No. 1OS552/2005 Petitioner, againstDEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE UNIVERSITY OF THE STATE OF NEW YORK, THE STATE EDUCATION DEPT., SCHOOL DISTRICT EMPLOYER-EMPLOYEE RELATIONS UNIT, . Respondent. I t ' Petitioner moves to vacate the Opinion and Award in a disciplinary proceeding by the Department of Education (Respondent) against Ronald Grassel (Petiti0ner)Grassel is seeking to return to active status as a teacher retroactive to 1997. He is pro se in this proceeding. Petitioner was represented by counsel in the underlying administrative hearing. brought charges that Ronald Grassel was The Department of Education (DOE) insubordinate, neglected his duty, and engaged in conduct unbecoming a teacher for failure to report for scheduled medical examinations pursuant to New York State Education Law $ 2568 on three separate occasions: February 9,201 1 (Specification l), February 18,201 1 >I (Specification 2), and March 18,201 1 (Specification 3). The DOE alleged that this constituted just cause for disciplinary action under Education Law 5 3020-a, Mr. Grassel asserted that he did not receive the letters ordering him to attend the medical examinations Page 1 of 6 \ [* 3] I I, I until February 22,20 1 1, because he was in Florida at the time they arrived. Mr, Grassel did not provide any evidence to suggest that he attempted to follow the DOE S instructions as detailed in the March 9, 201 1 letter or attempt to reschedule the March 18,201 1 examination. On or about March 8,201 1, prior to the scheduled March 18,201 1 medical examination, Mr. Grassel moved for an order of contempt, claiming that the DOE failed to comply with the Supreme Court ofNew Y.ork sDecember 2,20 10 Order. The court denied the petition and determined that the DOE complied with Education Law 6 2568 by sending an effective letter dated 1/10/2011 directing Mr. Grassel to appear for a medical examination, The Hearing Officer determined that: 4 I. t . 1. The DOE Srequest for termination was denied; , . 2. Mr. Grassel was suspended without pay and such suspension would be fully satisfied upon Mr. Grassel s ordered date of reinstatement; I 3. DOE was ordered to reinstate Mr. Grassel within 30 days f o the date of the rm 1 I Opinion and Award; and 4. Mr. Grassel s request for back pay was denied, Mr. Grassel was found guilty of Specifications 1,2, and 3. Petitioner s arguments include: !! 1. That the hearing officer was not legally assigned to the case until February 2 1, 2012 and that, therefore, he was not sworn before the arbitration.was held. 2. Petitioner was not an employee of the Department of Education at the time the hearing was begun and that the hearing officer did not have jurisdiction because the hearing Page 2 of 6 7 * I [* 4] II was therefore a post-termination hearing and not authorized under the Education Law 6 / 3020-a. I 3. The charges date from 1997 and therefore the three years the DOE had in.which to I: bring the charges had pFssed, and the disciplinary hearing was barred. 4. Eyesight is not a necessary requirement of working for the DOE;therefore, it I I 1 cannot be a part of a medical examination. 5 . The DOE never ascertained whether the petitioner could function in any capacity 1 for the DOE and that the only justiication for requiring an examination came from statements Petitioner made during a psychiatric evaluation, Petitioner asserts that these 1 statements have no value and cannot be used as a basis to require him to submit to further 1 medical examination. 6. Petitioner claims that the decisions of the hearing officer were not based upon fact I 'I and were irrational; therefore, the award should be vacated. Respondents filed a cross-motion to dismiss the petition with prejudice pursuant to CPLR $6 32 1 1(a)(2), 321 1(a)(5), 32 1 1(a)@), 304, 306-a, 404(a) and § 3020-a of the Education Law, on thk grounds that (1) there is no valid proceeding before this Court and no valid proceeding was commenced because petitioner did not file a notice of petition andor petition with the New York County Clerk or pay the requisite filing fee as required by CPLR §§ 304 and 306-a, and the time to commence a proceeding under Education Law § 3020-a has expired; and (2) that even if the Court were to conclude that a proceeding had been I commenced, such proceeding is barred by the applicable statute :oflimitations set forth in I I Page 3 of 6 , . / I [* 5] Education Law 9 3020-a. Thiscourt finds that Petitioner s arguments are without merit. Petitioner s argument that the Hearing OMicer was not sworn prior to beginning the hearing is not supported by evidence. Petitioner relies upon a letter from the State Education Department which+confirms John Woods agreement to serve as Hearing Officer. This does not, as Petitioner contends, indicate that the date of the letter is the date that Mr. Woods was legally assigned the case. The argument that the Hearing Officer lacked jurisdiction because Petitioner was not an employee of DOE from January to October 201 1 must also fail, Petitioner has provided contradictory documentation. Some, such as the letter from the Teacher s retirement system indicates that he was inactive, not terminated. Other evidence consists of work or service histories with no explanation of the abbreviations and notations thereon. Furthermore, one of the penalties sought by the DOE was Petitioner s termination. This is strong evidence that Petitioner had not been terminated previously. The background contained in the Order and Award of the Hearing Officer (Petitioner s Exhibit A) shows that the Petitioner was suspended, not terminated. The one time a Hearing Officer ordered Grassel to be terminated, should he fail to schedule and attend a medical examination, the Court vacated the termination. In total, the evidence indicates that Petitioner was suspended, not terminated. Therefore, the Hearing Officer had jurisdiction. I Petitioner s argument that the charges date from 1997 and are therefore time barred from being brought is clearly erroneous. The charges are for failure to report for scheduled medical examinations in 20 1 1. Therefore, the charges were brought within the period of time I Page 4 of 6 [* 6] I i specified by the statute of limitations. Petitioner s argument that eyesight is not required to work at the DOE, and is therefore not a permissible part of a § 2568 medical examination must fail. New York Education Law 5 2568 allows the superintendent of schools to require that any person 1 employed by the board of education submit to a medical examination in order to determine the mental or physical capacity of such person to perform his duties. It is possible that lack of eyesight, or diminished vision could impact the ability to perform certain duties as a teacher. Therefore, it is justifiable to require an employee to submit to a medical examination to determine their fitness for duty. J Petitioner s argument that the DOE never ascertained whether he could hnction in any capacity for the DOE and therefore the award must be vacat,ed is also meritless. The a disciplinary action w s for failure to report to medical examinations, which would presumably determine if Petitioner is fit to perform any duties working for the DOE. The s DOE has been unable to dctermine what, if any, position the Petitioner is fit for because the Petitioner has repeatedly refused to submit to a medical examination. The Petitioner has failed to show that the Hearing OGcer s opinion was irrational and not based upon fact. M n of the statements Petitioner relies upon are misquoted or taken ay 1 out of context. 4; i The Petitioner has failed to show that the Hearing Officer s Opinion and Award should be vacated, Therefore, there is no need to analyze Respdndent s motion to dismiss. # L 1 Page 5 of 6 [* 7] I Accordingly it i . i ORDERED that Petitioner s Motion to Vacate the Hearing Officer s Opinion and Award is denied in its entirety; it is further Y I ORDERED the Respondent s rnotian to dismiss is denied as moot. The foregoing constitutes the decision and Date: I LrrL l\ New York, New York I , Page 6 of 6 I i !

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