Orlian v New York City Dept. of Educ.

[*1] Orlian v New York City Dept. of Educ. 2006 NY Slip Op 50184(U) [11 Misc 3d 1052(A)] Decided on January 17, 2006 Supreme Court, New York County Ling-Cohan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 17, 2006
Supreme Court, New York County

Martin Orlian, Petitioner,

against

The New York City Department of Education (formerly known as the New York City Board of Education), Respondent.



114729/03

Doris Ling-Cohan, J.

In this Article 78 proceeding, petitioner Martin Orlian ("Orlian" or "petitioner") seeks, inter alia, a declaration that respondent the New York City Department of Education ("Department" or "respondent") acted in an arbitrary and capricious manner when it terminated his employment. By order of this Court dated August 23, 2004, this Court denied respondent's cross-motion to dismiss this proceeding pursuant to CPLR 3211 (a) (7), and permitted the filing of a second amended petition.

Orlian holds a Ph.D. in Biology. Respondent admits in its answer that petitioner was, in fact, state certified in Biology and General Science for grades 7-12, effective February 1, 2003. (See ¶4, Verified Answer). It is asserted by petitioner, and not disputed by respondent, that there is a "great shortage of science teachers throughout the New York City public schools". (see ¶15, Affidavit in Support of Second Amended Petition, Exh. A).

In his second amended petition, dated September 9, 2004, Orlian alleges that, during the 2001-2002 school year, he taught at Brooklyn Technical High School (Brooklyn Tech) as a Preparatory Provisional Teacher (PPT), under a temporary license. Orlian returned to Brooklyn Tech for the 2002-2003 school year. During that year he obtained a provisional license as a Biology Teacher in the areas of General Science grades 7-12, and, thereby, according to petitioner, he became a Certified Provisional Teacher (CPT); Orlian was granted a salary increase, in accordance with his new status.

By letter dated June 12, 2003, respondent terminated Orlian's employment, effective June 26, 2003. The letter stated as follows: Contractual obligations regarding Preparatory Provisions Teachers require that we inform you and all other Preparatory Provisional Teachers that we will be terminating your services as of June 26, 2003.[*2]If organizational needs should change and no regular teachers are assigned, we would then be able to request your assignment for next term and would inform you of this request immediately.

(Letter from Lee D. McCaskill, Principal, Second Amended Petition, Exh. H.)("June 12, 2003 letter")

It is not disputed that Orlian wrote to McCaskill, stating that he was a CPT, rather than a PPT and asking that he be reinstated, but that he received no response to his letter. Orlian alleges that he was prepared to return to school on September 2, 2003, but that he was told that he was still terminated.

On September 9, 2003, Orlian was re-hired and assigned to teach at Grady Vocational Technical High School ("Grady"). He began teaching that day under his CPT license. Orlian alleges that he was not paid on September 15, 2003, nor October 1, 2003, the first and second pay days, but that on October 2, 2003, he received a check for $405.64, based upon a gross amount of $511.76, which represented the daily pay rate for per diem employees. According to Orlian, he should have been paid at a higher rate under his CPT license. Orlian was not paid on October 15, 2003, nor on October 31, 2003 (for pay periods ending on such date), and his health benefits were not restored. However, on or about November 19, 2003, respondent issued a check to petitioner for the four missing pay periods (September 15th, September 30th, October 15th and October 31st 2003), at the per diem rate for employees; not the CPT rate to which petitioner claims he was entitled.

On October 30, 2003, Orlian was "directed by the Grady administration to leave the building" (¶23, Affidavit in Support of Second Amended Petition) and was told that he would not be permitted to teach there unless he obtained an Occasional Per Diem (OPD) license. Orlian immediately filed for an OPD license as instructed, though he already held a CPT license. The form filled out by Orlian to qualify for an OPD license, however, was returned to him by respondent's personnel department with a note attached which stated "Returning this person [sic] is State Certified." (See Exh. I Second Amended Petition).

Orlian contends that the Department's decision to terminate his employment, by letter dated June 12, 2003, on the basis that he was a PPT was wrongful in that he actually held a CPT license and therefore arbitrary and capricious. In addition, Orlian maintains that the fact that he was paid at a lesser salary and then removed entirely from payroll, had his health insurance terminated and never restored, and that he failed to receive credit towards his pension and sick leave, all constitute arbitrary and capricious conduct by respondent.

Orlian further contends that the Department's failure to provide him with 30 days notice, prior to terminating his position, violated the Chancellor's Regulation C-31; this claims was resolved by [*3]this Court's decision dated August 23, 2004.[FN1] In addition, Orlian contends that, by failing to timely pay him the salary to which he was entitled for the period that he worked at Grady, the Department violated Education Law § 3011. Finally, Orlian asserts that his dismissal from Grady, and demand that he apply for an OPD license, was in retaliation for the commencement of this Article 78 proceeding, was arbitrary and capricious, and warrants his reinstatement and an award for back pay, plus applicable statutory interest and attorneys' fees.

As such, petitioner seeks an order from this Court: (1) declaring that respondent acted arbitrarily and capriciously and outside the bounds of law by terminating petitioner's employment and by failing to pay him his salary and providing him with the benefits incidental to his employment; (2) declaring that respondent acted arbitrarily and capriciously when it retaliated against him for bringing this Article 78 proceeding by terminating him a second time from his position at Grady under the guise of having to apply for a license that it failed and refused to process; (3) vacating the termination of petitioner's employment and reinstating him as a Biology teacher within a high school in the New York City Department of Education, with credit toward the completion of his probationary service at the level of seniority, salary and benefits as if he had not been terminate by respondents on June 26, 2003; (4) directing respondent to immediately restore petitioner to the payroll of the Department of Education, restoring petitioner's enrollment in the health insurance plan, crediting petitioner with all manners of leave, including sick and vacation leave, and seniority to which he is entitled but for respondent's wrongful conduct; (5) awarding petitioner all lost past and future income with statutory interest incidental to the termination of his employment, together with interest at the statutory rate; and(6) awarding petitioner reasonable attorneys' fees and costs and disbursements related to this proceeding.

In opposition, the Department argues that petitioner cannot demonstrate that his dismissal was arbitrary and capricious since petitioner never held a CPT certificate and did not apply for such a certificate until October 1, 2003, after he was terminated from Brooklyn Tech. It is the Department's position that although petitioner obtained state certification from the New York State Education Department, state certification is not the equivalent of a DOE license or certificate. According to the Department, state certification in a particular area is only one of the requirements for a CPT.[FN2]

The Department further maintains that, to the extent that petitioner's claims are based on contractual violations, his claims fail because he failed to exhaust his contractual remedies. In addition, the Department asserts that with respect to petitioner's retaliation claims, they fail because petitioner's dismissal from Grady was not in response to this proceeding, but rather [*4]mandated by DOE policy and procedures since petitioner did not have a valid license or certificate at such time. Finally, the Department argues that even if petitioner was terminated by the June 12, 2003 letter and he was in fact a CPT, petitioner would and could have been terminated because of his poor performance.[FN3]

The Department asserts the following affirmative defenses that: (1)the second amended petition fails to state a cause of action; (2) the petition is barred by the failure to exhaust contractual remedies; (3) respondent's actions were in all respects legal, proper, reasonable and in conformity with all applicable laws and regulations, and were neither arbitrary, nor capricious; (4) petitioner's discharge and unsatisfactory rating were made in good faith, were in all respects rationally based and petitioner's employment was properly discontinued; (5) petitioner failed to meet his burden of proving that his termination and unsatisfactory rating were arbitrary and capricious or made in bad faith; and (6) petitioner's claim for relief under Education Law and/or the Chancellor's Regulation are barred by this Court's August 23, 2004 decision and the law of the case doctrine.

DISCUSSION

It is well settled that judicial review of an administrative determination is limited to whether the determination was made "in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion...". CPLR 7803 [3]). The Court of Appeals explained the "arbitrary and capricious" standard in Matter of Pell v Board of Educ. (34 NY2d 222, 231 [1974]) as follows: "The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact' [1 NY Jur., Administrative Law, § 184, p. 609]. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts."

To determine whether the Department's action of terminating Orlian on June 26, 2003 was arbitrary and capricious, it is necessary to understand the differences between the various categories of teachers in the New York City public school system, which were discussed by the court in Coleman v Board of Education, (2002 WL 63555 [SD NY], affd 2002 WL 31060541 [2d Cir 2002]). [*5]

As previously discussed by this Court in its decision dated August 23, 2004 which denied respondent's motion to dismiss, a PPT is a person who holds a temporary license from the State of New York, but has not yet completed all of the requirements necessary for state certification. Id. at 1.

A CPT is a person who holds a New York State provisional or permanent certificate, a New York City regular license or a New York City substitute license issued on or before June 30, 1969, but has not yet been appointed to a permanent teaching position. Id.

Both PPTs and CPTs are provisional teachers, and are categorized under the collective bargaining agreement ("CBA") as regular substitute teachers, in contrast with teachers who hold regular teaching licenses and regular appointments. See e.g. the CBA between the Department and the United Federation of Teachers (the Union), Article 17, Retention, Excessing and Layoff. Pursuant to the CBA, regular appointments to teaching positions are made from lists of eligible persons holding regular teaching licenses. If vacancies remain after all persons holding regular licenses have been appointed, holders of CPT licenses have priority for assignment. If no holders of CPT licenses are available then holders of PPT licenses are eligible. Coleman, 2002 WL 63555, at *1. CPT's do not require annual renomination, whereas PPTs are eligible for renomination for a state temporary license for a period of three years, provided that each year of their service is satisfactory and they are making progress toward obtaining certification. See CBA, Article Five, Section C. Furthermore, where a CPT has lost a position in a school because it ceased to exist, the CPT will have priority over a PPT for a vacancy in the district. See id., Article 17, Section A (3).

An OPD certificate entitles the holder to serve as an occasional per diem substitute teacher, but that person may not fill a long-term vacancy, which may be filled by the holder of a CPT or PPT license. Coleman, at 3.

The services of probationary teachers can be terminated at any time for any reason. Tucker v Board of Educ., 82 NY2d 274, 279 (1993). Therefore, provisional teachers, whether preparatory or certified, who have even fewer protections than probationary teachers, can be terminated as well.

The question remains, however, whether a provisional teacher may be terminated for a reason which does not apply to his/her classification, as occurred here. Certainly a probationary teacher holding a regular license who was appointed, but not yet tenured, may not be terminated on the basis that the entire category of provisional teachers was being terminated. Similarly, it should not be permissible to terminate a certified provisional teacher on the basis that a decision has been made to terminate all preparatory provisional teachers. Thus, although both probationary and provisional teachers may be terminated for "any reason", that cannot rationally mean that they may be terminated for a reason which, in fact, does not apply to their classification. Here, having clearly been terminated for a reason that did not apply to him, the Court concludes that Orlian's termination was arbitrary and capricious. [*6]

The Court notes that petitioner, does not seek "permanent appointment", rather merely reinstatement to CPT employment status.

The June 12, 2003 letter specifically stated that the reason for petitioner's termination was that he was a Prepatory Provisional Teacher, rather than a Certified Provisional Teacher; this was an error without factual foundation, which respondent failed to correct even after being notified. In support of the within application, petitioner has submitted a New York State Certificate confirming his status as a Certified Provisional Teacher (CPT). (Exh B, Second Amended Petition).

Additionally, Orlian's dismissal from Grady and respondent's demand that he apply for an OPD license when he in fact maintained a valid CPT license (which did not necessitate an application for an OPD license), was also arbitrary and capricious.[FN4] It is undisputed that respondent's own personnel office refused to process Orlian's application for an OPD license because he was"state certified" at the time, is evidence of the absurdity of the Board's demand that he apply for a OPD license. Further, by the very definition supplied on the face of the "New York City Department of Education Certificate to Serve as an Occasional Per Diem Substitute", the "[h]older does not possess New York State Teaching Certification". (See Orlian's OPD Certificate, effective date 9/40/01 to 8/31/02, Exh. 2, Verified Answer). Thus, an OPD certificate would have been completely inappropriate for petitioner at such time, as it is not disputed that he possessed a valid New York State Teacher Certificate. (See Exh. B, Second Amended Petition).[FN5]

Although the Department argues that "throughout the 2002-03 academic year, petitioner never sought (and therefore never obtained) CPT status" (¶64, Verified Answer), and that, in essence, the New York City Department of Education issues CPT certificates, for which a "State certification in a particular subject area is only one of the requirements for a CPT" (¶86, Verified Answer), respondent failed to establish such in the submission papers before this Court, despite being given additional time to produce further documentation in support thereof.[FN6] (See April 8, [*7]2005 Interim Order of this Court).[FN7]

Additionally, petitioner fulfills the definition of a CPT as provided in Article 5C1 of the Collective Bargaining Agreement between the DOE and the United Federation of Teachers: "a person who has not yet been appointed, who holds a New York State provisional or permanent certificate, a New York City regular license or a New York City Substitute license issued on or before June 30, 1969...". (See Exh. 4, Affirmation of Asst. Corp Counsel Alecia Walters). It is noted that such provision does not require that the alleged CPT hold a specific certificate or license entitled "DOE CPT Certificate/License", nor that the alleged "CPT" submit an application to the DOE for a declaration that one is a DOE "approved" CPT.

Furthermore, respondent's position that, although they admit that petitioner received state certification in February 2003, state certification is not equivalent of a DOE license or certification, is contrary to Chancellor's Regulation C-200(11)(b) which specifically states that: "...in the case of any license title for which there is a comparable state certificate, the Chancellor accepts the appropriate state certificate in satisfaction of academic requirements as follows: (1) For conditional licenses: Possession of the appropriate New York State Certificate of Qualification or Provisional Certificate...". (See Exh. 2, Reply Aff. in Further Support of Second Amended Petition).

This court therefore concludes that Orlian is entitled to a judgment vacating the termination of his employment and reinstating him to a position as Biology teacher within a high school in the New York City Department of Education. Additionally, petitioner is entitled to reinstatement and back pay, which he lost as a result of his termination from Brooklyn Tech.[FN8] See United [*8]Federation of Teachers v Board of Educ. of New York City Community School District No.9, 290 AD2d 338 (1st Dept 2002).

The Court declines, however, to grant petitioner's request for attorneys' fees as petitioner has failed to refer to a specific statute or contract provision which warrants the imposition of attorneys' fees; nor has petitioners' counsel submitted proof of any fees including the submission of time records.

Accordingly, based upon the above, the petition is granted only to the following extent, and it is

ORDERED & ADJUDGED that the June 26, 2003 termination of petitioner's employment is vacated and petitioner shall be reinstated to a position as a CPT, as a Biology teacher within a high school in the New York City Department of Education with credit toward the completion of his probationary service at the level of seniority, salary and benefits as if he had not been terminated by respondent on June 26, 2003, within 20 days of service of a copy of this order with notice of entry; it is further

ORDERED that respondent shall be restored by petitioner to the payroll of the Department of Education, and that petitioner's health benefits shall be restored, with appropriate credits including sick and vacation leave, within 20 days of service of a copy of this order with notice of entry; it is further

ORDERED that petitioner is awarded all lost past wages which resulted from respondent's wrongful termination of petitioner; it is futher

ORDERED that the parties shall SETTLE JUDGMENT, providing appropriate calculations with respect to the recovery of back pay, returnable to the Order Department, Room 119A, 60 Centre Street; such Department shall refer this matter to this Part upon full submission of the parties' papers.

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

Dated: Doris Ling-Cohan, JSC

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Footnote 1: In its decision dated August 23, 2004, Chancellor's Regulation C-31 was held not to apply to petitioner's claims; thus, this is the law of the case and the Court will not address such claim.

Footnote 2: The Court notes that this argument was not asserted by the Department previously, when it argued in support of its motion to dismiss this proceeding; such motion was denied by order of this Court dated August 23, 2004.

Footnote 3: The Court notes that although respondent has supplied detailed information about petitioner's performance as a teacher while at Brooklyn Tech, as well as details regarding an alleged unsatisfactory rating, the Court fails to find such information relevant to this proceeding and therefore will not address such assertions, as there is no dispute that this was never the basis of any termination.

Footnote 4: It must be noted that petitioner was given a position at Grady for the 2003-2004 school year teaching science, where he taught the students of the City of New York, for two full months (until October 31, 2003), until supposedly it was "learned" (see ¶10, Eisengrien Affidavit, Verified Answer) that he failed to possess the necessary license; according to petitioner, the Grady administration "advised [him] that [the] direction to remove [him] came directly from the Department's Office of Legal Services. This Article 78 proceeding was commenced on or about August 2003.

Footnote 5: The Court notes that it is not disputed by respondent that after petitioner was removed from Grady, petitioner's position remained unfilled for the remainder of the 2003-2004 school year and the students of Grady failed to have a qualified biology teacher for their science classes.

Footnote 6: The Court notes that, surprisingly, this argument was not asserted by respondent in support of its prior motion to dismiss this proceeding. In fact, in its decision dated August 23, 2004, this Court stated: "[i]t is not disputed that petitioner was, in fact, a CPT at the time he was let go as a PPT". Despite such indication, respondent's did not move to renew/reargue, nor did they file an appeal of such decision; rather, they chose to assert this novel argument in the papers submitted herein.

Footnote 7: "This Court will provide respondent with an opportunity to submit and serve upon this Court and petitioner copies of the law, rule, regulation and/or reference to the collective bargaining agreement between the Department of Education and the United Federation of Teachers, which sets forth the New York City Department of Education's requirements/qualifications of a Certified Provisional Teacher ("CPT") hired by the Department of Education; such documentation may be supported by an affirmation/affidavit by respondent, on or before May 9, 2005". (April 8, 2005 Interim Order of this Court).

Footnote 8: In its decision/order dated August 23, 2004, this Court concluded that it would follow the holding of the Appellate Division, First Department in United Federation of Teachers v Board of Educ. of New York City Community School District #9, (290 AD2d 338 [1st Dept 2002], which affirmed an arbitration award of reinstatement and back pay for a preparatory provisional teacher, rather than the dicta of the Appellate Division, Second Department in Matter of Mateo v Board of Educ. of City of New York (285 AD2d 552, 553 [2d Dept 2001]), which rejected such relief, as argued by respondent.