Matter of Gregg-Mullins v Klein

[*1] Matter of Gregg-Mullins v Klein 2004 NY Slip Op 51615(U) Decided on November 19, 2004 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2004
Supreme Court, New York County

In the Matter of the Application of LINDA GREGG-MULLINS, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,

against

JOEL KLEIN, CHANCELLOR; BERNARD GASSAWAY, SENIOR SUPERINTENDENT, ALTERNATIVE SCHOOLS AND PROGRAMS; TIMOTHY LISANTE, LOCAL INSTRUCTIONAL SUPERINTENDENT, SYDNEY BLAIR, PRINCIPAL, PASSAGES ACADEMY, SCHOOL 695; NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.



106937/04

Eileen Bransten, J.

In this Article 78 proceeding, petitioner Linda Gregg-Mullins ("Ms. Mullins") seeks an order returning her to her job at Passages Academy Crossroads school ("Passages") as a Social Studies teacher and restoring her good attendance record. Chancellor of the Office of Labor Relations and Collective Bargaining for the Board of Education Joel Klein ("Chancellor Klein"), Senior Superintendent of Alternative Schools and Programs Bernard Gassaway ("Superintendent Gassaway"), Principal of Passages Sydney Blair ("Principal Blair") and the New York City Department of Education ("Department") (collectively "Respondents") cross-move to dismiss the petition as time-barred and barred by failure to exhaust administrative remedies, failure to state a cause of action, and failure to join necessary parties.[FN1] [*2]

Background On September 5, 2000, Ms. Mullins began working as a Social Studies teacher at Passages. Ms. Mullins's Verified Petition ("Pet."), at ¶ 8. In June of 2003, while still teaching at Passages, Ms. Mullins completed her final requirements for certification by the New York State Department of Education in Social Studies and fulfilled the requirements to become a tenured teacher. Pet., at ¶¶ 11,12. In August of 2003, Ms. Mullins had the highest seniority among Social Studies teachers at Passages and only the physical education teacher and one mathematics teacher had more seniority than she had. Pet., at ¶ 48.

On August 1, 2003, Ms. Mullins received a letter from Principal Blair stating that she was to be assigned to another school, Summit, for the 2003-2004 school year. Pet., at ¶ 14. Ms. Mullins found this decision to be a violation of Article 7A7 of the Agreement between The Board of Education of the City School District of the City of New York and United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO ("Agreement") because she did not request a transfer and had seniority. Pet., at ¶¶ 20,21,22,23. Thus, on August 13, 2003, Ms. Mullins began Step I of the grievance process outlined in the Agreement by requesting a conference with Principal Blair and sending him a facsimile stating her reasons for submitting the grievance. Pet., at ¶¶ 16,17. On September 4, 2003, Ms. Mullins met with Principal Blair; he stated that Ms. Mullins was needed at Summit but not at Passages. Pet., at ¶¶ 28,31.

On September 10, 2003, in compliance with Step II grievance procedures in the Agreement, Ms. Mullins submitted a letter to Superintendent Cassaway requesting a conference. Pet., at ¶¶ 32,33. Superintendent Cassaway failed to respond. Pet., at ¶ 35.

In accordance with Step III grievance procedures in the Agreement, on October 8, 2003, Ms. Mullins's union representative, Vince Gaglione ("Mr. Gaglione"), sent a letter to Chancellor Klein requesting a conference. Pet., at ¶ 39. The conference was scheduled for December 2, 2003. Pet., at ¶ 42. On January 5, 2004, Ms. Mullins's grievance was denied; Ms. Mullins received this decision on approximately January 17, 2004. Pet., at ¶ 43. During this time, Ms. Mullins reported to Crossroads each day and did not report to Summit. Pet., at ¶ 67.

On February 17, 2004, Ms. Mullins's union, the United Federation of Teachers ("UFT"), informed her that it would not take her case to arbitration pursuant to Step IV of the Agreement. Respondents' Memorandum of Law ("Memo."), at 5. It also informed her that she could appeal this decision with the UFT, which she did. Id. On May 11, 2004, the UFT informed Ms. Mullins that her appeal had been denied. [*3]Id.

On May 5, 2004, Ms. Mullins commenced this Article 78 proceeding. She seeks an order restoring her to her position as Social Studies teacher at Crossroads and restoring her attendance record.

Respondents cross-move for dismissal of the petition as time-barred and barred by her failure to exhaust administrative remedies. They also seek to dismiss the petition for failure to state a cause of action and failure to join necessary parties. Respondents' Cross-Motion to Dismiss, at 1. Respondents argue that Ms. Mullins's claim is time-barred because she commenced the proceeding more than four months after she was transferred. Memo., at 2. Respondents also urge that the claim must be dismissed because Ms. Mullins cannot sue for breach of the Agreement unless she demonstrates that the UFT unfairly represented her, which she did not prove. Id. Finally, Respondents state that the UFT is a necessary party and that failure to join the UFT is fatal to this petition.

Analysis

Statute of Limitations

An Article 78 proceeding must be commenced within four months from the date an agency's decision becomes final and binding. CPLR 217. "If an agency has created ambiguity or uncertainty as to whether a final and binding decision has been issued, the courts should resolve any ambiguity created by the public body against it in order to reach a determination on the merits and not deny a party his day in court." Matter of Carter v. State of New York, Exec. Dept., Div. of Parole, 95 NY2d 267, 270 (2000) (citing Mundy v. Nassau County Civ. Serv. Comm., 44 NY2d 352, 358 [1978]); see also, Matter of Montalvo v. Crotty, 137 AD2d 437, 437-38 (1st Dep't 1988). When an employee is subject to a collective bargaining agreement that outlines grievance procedures and the employee would be entitled to a hearing if terminated, the agency's decision becomes "final and binding" when petitioner exhausts the grievance process. Matter of Montalvo v. Crotty, 137 AD2d, at 438; see also, Heck v. Keane, 6 AD3d 95 (4th Dep't 2004).

Here, Respondents allege that the Board of Education's decision became final on August 1, 2003, the date Ms. Mullins received the letter notifying her of the reassignment to Summit. Ms. Mullins alleges that the decision became final on January 17, 2004, when she received a decision denying her Step III grievance. See [*4]Pet., at ¶ 43. Pursuant to Matter of Carter v. State of New York, Exec. Dept., Div. of Parole, 95 NY2d, at 270, this Court finds that the agency's determination became final and binding on January 17, 2004. Therefore, Ms. Mullins timely commenced this action by filing her petition on May 5, 2004, approximately twelve days before the statute of limitations expired.

Furthermore, the cases Respondents' cited, DeMilio v. Borghard, 55 NY2d 216, 222 (1982), and Matter of Schulman v. Bd. of Educ., 184 AD2d 643, 644 (2d Dep't 1992), are inapposite because those cases dealt with the termination of a probationary employee not entitled to a hearing. Ms. Mullins, by contrast, was a tenured teacher and therefore, entitled to a hearing before termination of her position. Pet., at ¶ 12.

Standing

When an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement because, as a beneficiary and not a party to the agreement, the employee does not have standing to sue. Matter of Bd. of Educ. v. Ambach, 70 NY2d 501, 508 (1987), cert. denied 485 U.S. 1034; Matter of Ray v. New York City Dept. of Correction, 212 AD2d 387 (1st Dep't 1995), lv. denied 85 NY2d 810. An employee covered by such an agreement may only sue his employer directly upon showing that the union breached its duty of fair representation unless the collective bargaining agreement provides otherwise. Matter of Bd. of Educ. v. Ambach, 70 NY2d, at 508; Parisi v. New York City Hous. Auth., 269 AD2d 210 (1st Dep't 2000). The duty of fair representation is breached when the conduct involved is "deliberately invidious, arbitrary and founded in bad faith." Matter of Sapadin v. Bd. of Educ., 246 AD2d 359, 360 (1st Dep't 1998); see also, Gordon v. Bd. of Educ., 167 AD2d 509 (2d Dep't 1990). Irresponsibility or negligence on the part the union is insufficient to show unfair representation. Matter of Civ. Serv. Empl. Assoc. Inc. v. Pub. Empl. Rel. Bd., 132 AD2d 430, 432 (3d Dep't 1987), aff. 73 NY2d 796 (1988). A union's refusal to proceed to arbitration, moreover, is not sufficient to establish unfair representation. Matter of Bd. of Educ. v. Ambach, 70 NY2d, at 508; Matter of Sapadin v. Bd. of Educ., 246 AD2d, at 360; see e.g., Ponticello v. County of Suffolk, 225 AD2d 751 (2d Dep't 1996); Matter of Hoffman v. Bd. of Educ., 84 AD2d 840, 841 (2d Dep't 1981).

Here, Ms. Mullins's union, the UFT, and her employer have a collective bargaining agreement that outlines specific grievance procedures. Pet., at ¶ 16. Therefore, Ms. Mullins cannot commence an Article 78 proceeding unless she demonstrates that the UFT breached its duty to fairly represent her. Ms. Mullins has alleged no such breach. Furthermore, although the UFT decided not to take Ms. [*5]Mullins's case to arbitration, there is absolutely no evidence that the determination was made in bad faith. Accordingly, Ms. Mullins does not have standing to bring this petition, which must be dismissed.

Failure to Join Necessary Party

An additional, related ground for dismissal is that Ms. Mullins failed to join the UFT as a respondent and assert that it breached its duty of fair representation. Failure to join a necessary party is grounds to dismiss a petition. CPLR 1003. Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." City of New York v. Long Island Airports Limousine Serv. Corp., 48 NY2d 469, 475 (1979).

Here, Respondents allege that the UFT is a necessary party because Ms. Mullins must allege that it breached its duty to fairly represent her before she can commence an Article 78 proceeding against Respondents. See, Parisi v. New York City Housing Auth., 269 AD2d 210 (1st Dep't 2000). This Court agrees. See, discussion of standing, supra, at 6. The UFT a necessary party has not been joined as a respondent in this petition and the statute of limitations has expired. Therefore, Ms. Mullins's petition also must be dismissed for failure to join the UFT.

Accordingly, it is

ORDERED that Respondents' cross-motion for an extension of time to file a reply was previously granted and the papers were considered by the Court; and it is further

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.

This constitutes the Decision, Order and Judgment of the Court.

Dated: New York, New York

November , 2004

ENTER:

_________________________

Hon. Eileen Bransten Footnotes

Footnote 1: Respondents' also cross-move for an order extending their time to submit opposition papers from June 14, 2004, until July 26, 2004. Ms. Mullins opposes this motion. As a matter of discretion, this Court extended Respondents' time to file a reply to July 26, 2004. This motion was not orally argued until September 7, 2004. The brief extension did not dely consideration of the petition.