Matter of Mendez v New York City Dept. of Educ.

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[*1] Matter of Mendez v New York City Dept. of Educ. 2011 NY Slip Op 50067(U) [30 Misc 3d 1214(A)] Decided on January 19, 2011 Supreme Court, New York County Solomon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2011
Supreme Court, New York County

In the Matter of Mildred Mendez, Petitioner,

against

New York City Department of Education, Respondent.



103995/09



Petitioner was represented by Edward H. Wolf, Esq., of Wolf & Wolf, LLP, 910 Grand Concourse, 1F, Bronx, NY 10451, tel. no. 718-410-0653.

Respondent was represented by Michael A. Cardozo, Esq., New York City Corporation Counsel, 100 Church Street, 4th Floor, New York, NY 10007, tel. no. 212-788-

Jane S. Solomon, J.



Pursuant to Article 78 of the Civil Practice Law and Rules, petitioner Mildred Mendez challenges the respondent New York City Department of Education's ("DOE") denial of her application to withdraw a letter of resignation. Mendez seeks an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.

When the petition was first made, the DOE cross-moved to dismiss it on the grounds that it was barred under the four month statute of limitations applicable to Article 78 proceedings (CPLR 217[a]). The cross-motion was denied in a decision and order dated April 9, 2010 (April Order), and DOE was granted leave to file an answer. Now that the DOE's answer has been filed, the matter is ripe for decision.

Mendez was employed by the DOE as a tenured teacher.[FN1] She received "unsatisfactory" reviews in two consecutive years, and [*2]upon learning that she was likely to receive a third "unsatisfactory" review, she decided to tender her resignation to her school's principal in April 2008, to be effective on June 26, 2008. The principal rejected Mendez's resignation because it did not state that her resignation was "irrevocable". On May 30, 2008, Mendez filed an application to withdrew her resignation with the DOE (Withdrawal Application, Petition, Ex. D, and see, Answer, Ex. 10 [what the DOE offers as the proper form for withdrawing a resignation, showing that it is the same form used by Mendez]). The DOE did not respond to her application. On June 2, 2008, the principal caused disciplinary charges to be filed against Mendez, who was removed from her classroom and reassigned to a different school.

The DOE sent a letter to Mendez, dated August 26, 2008, informing her that she would be removed from the payroll on August 28, 2008 (Petitioner's Ex. F), which it did. The record does not disclose what became of the disciplinary charges against Mendez, but it appears they became moot and where not pursued when the DOE terminated her employment. On October 9, December 10, and December 24, 2008, Mendez sent letters to the DOE requesting that she be put back on the payroll. The DOE did not respond to any of her letters.

In her October 9, 2008 letter to Lawrence Becker, of the DOE's Division of Human Resources (Petitioner's Ex. G), Mendez refers to the Withdrawal Application (she calls it a "retraction letter"). In the October 9 letter, she states that the Withdrawal Application was sent by certified mail, return receipt requested, although the proof of mailing is not annexed to the petition.

In affidavits accompanying its answer, the DOE gives seemingly contradictory explanations for why it terminated Mendez by reason of her resignation despite her alleged withdrawal of same. In the affidavit of Florence Chapin, Director of the Teacher Performance Unit in the DOE Office of Legal Services, it is alleged that the principal of Mendez's school notified Chapin and others that Mendez had sought to rescind her resignation (Chapin Aff., paragraph 8). Chapin alleges that "after discussions" with the Office of Legal Services and Human Resources, it was determined that Mendez should not be permitted to resign. It is undisputed that (1) no determination was made by the Chancellor or in his name; and (2) that the "determination" made by Office of Legal Services, Human Resources and the principal was not communicated to Mendez.

In the affidavit of Charles Peeples, the DOE's Director of the Office of Field Services, it is alleged that the Office of [*3]Field Services receives and processes applications for withdrawal of resignations. His review of the files in his office showed no record of Mendez's application to withdraw her resignation. He makes no mention of any determination by the Chancellor to grant or reject her withdrawal.

Mendez commenced this Article 78 proceeding on March 23, 2009. She seeks mandamus relief compelling the DOE to honor her withdrawal of the resignation and to return her to a teaching position, with back pay from August 2008. In its answer, DOE argues that this proceeding is barred by the four month statute of limitations, that it acted reasonably, and that Mendez failed to exhaust her contractual remedies (Verified Answer, 11-12). The argument that this proceeding is barred by the four month statute of limitations was decided in Mendez's favor in the April Order, and will not be discussed further herein.

In arguing that Mendez failed to exhaust administrative remedies, the DOE relies upon Article 22 of its collective bargaining agreement with the United Federation of Teachers (UFT), titled "Grievance Procedure" (Answer, Ex. 9). Article 22 describes a two-step grievance procedure. A Step I grievance is made to the school principal; if the grievance is not resolved by Step I, Step II allows the UFT to appeal to the DOE Chancellor from the Step I decision.

Mendez contends that she exhausted her administrative remedy in contesting her termination, and relies upon a letter from the chair of the UFT grievance committee stating that a Step II grievance cannot be successfully pursued (Petition, Ex. J). Mendez did not further pursue a grievance regarding her termination, and the UFT, the only party under the collective bargaining agreement empowered to pursue a Step II grievance, refused to do so. Mendez argues that it would be futile for her to pursue a Step II grievance on her own. This argument has merit.

More significantly to this proceeding, however, is the fact that no grievance or Step I determination concerning her termination is part of the record herein. Presumably, a Step I grievance was made at some point after the August 26 letter from DOE, but the exact nature of the grievance is not revealed. As explained below, the purported grievance is not before the court, and its relevance is tangential.

The issue presented is whether the DOE, in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law § 2590-g), was authorized to treat with Mendez as a resigned teacher under the circumstances presented. If the DOE never accepted a resignation from Mendez, or if she [*4]validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.

The August 26 letter states in its entirety: "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee. Please be advised that you were taken off payroll effective August 28, 2008 and you should no longer report to 25 Chapel Street." No administrative determination is referred to in this letter, nor is there notice of any right to appeal the result.

Tellingly, the DOE's Answer and its accompanying memorandum of law make no reference to any DOE determination that triggered Mendez's four month statute of limitations, or that it gave notice that an administrative appeal was available, failing which the DOE's determination would be implemented. The DOE argues that under the Chancellor's Regulation 205(26), the Chancellor has the discretion to determine whether or not to permit petitioner to rescind her resignation. However, the record show that the Chancellor never exercised his discretion in this regard, and both the DOE's answer and memorandum of law make no reference to any document showing that he did. The record shows that the Chancellor simply ignored Mendez, and the termination of her employment had nothing to do with any disciplinary proceeding, poor reviews or other lawful process, but solely from a failure by the Chancellor to function as required by the DOE's governing rules.

Chancellor's Regulation 205(29) states, in mandatory language, that the petitioner's withdrawal of her resignation "shall be granted" subject to the Chancellor's approval. The DOE's answer and responding papers, filed months after the April Order, do not refute that the Chancellor took no action. Whatever the opinion of Chapin or the principal may have been, it is undisputed that the Chancellor did not determine that her withdrawal should be dishonored (see Chancellor's Regulation 205[26]).

The DOE abandoned its effort to terminate Mendez's employment (based upon some alleged misconduct or inadequate performance) through the typical administrative process in accordance with Education Law § 3020-a.[FN2] Although Mendez's resignation was specifically rejected and was the subject of a pending withdrawal application, the DOE's answer and Chapin's [*5]affidavit show that the DOE viewed implementing Mendez's resignation as an easy way to short-circuit her rights under Education Law § 3020-a and the collective bargaining agreement as a tenured teacher.

The Peeples affidavit implies that Mendez did not submit the Withdrawal Application. This implication is refuted by admissions in the Chapin affidavit, which shows that the DOE and the school principal knew that Mendez withdrew her resignation and that her withdrawal was the subject of discussions between them. Moreover, Mendez made reference to the Withdrawal Application in her letters, which is proof that it is not of recent vintage.

Further, the Peeples affidavit states that his office would have rejected the Withdrawal Application had it been received because his office requires that a withdrawal be accompanied by a written request to fill a vacancy. The Withdrawal Application clearly implies that Mendez wanted to keep her job, which was not a "vacancy" because she still occupied that position. The "vacancy" she sought to fill was the opening to be created by her own departure. The suggestion that she needed separately to submit a request to fill that vacancy is nonsensical and, in any event, this alleged shortcoming could and should have been brought to Mendez's attention when she first submitted the Withdrawal Application.

Finally, the DOE does not address the fact that it refused to accept Mendez's resignation. Its determination to terminate her employment solely on the basis that she tendered a resignation (see Petitioner's Ex. F) that the DOE expressly refused to accept or acknowledge is arbitrary and capricious, and provides an independent basis for granting the petition under CPLR 7803(3). If the DOE is going to terminate a teacher's employment based upon a resignation, it should acknowledge that it is doing so.

Accordingly, for these reasons and those expressed in the April Order, it hereby is

ORDERED, DECLARED AND ADJUDGED that the petition is granted to the extent that Respondents are ordered to reinstate Petitioner Mildred Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008; and it further is

ORDERED that the issue of the amount due to petitioner from respondent, and the amount of interest at the statutory rate, is referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the [*6]Special referee, or another person designated by the parties to serve as referee, shall determine the aforesaid issue; and it further is

ORDERED that entry of a final judgment is held in abeyance pending receipt of the report and recommendations of the Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the Special Referee or the designated referee; and it further is

ORDERED that a copy of this order with notice of entry shall be served on the Clerk of the Special Referee (Room 119) to arrange a date for the reference to a Special Referee.

Dated: January 19, 2011

ENTER:

___________________

J.S.C. Footnotes

Footnote 1: Relevant facts are stated in greater detail in the April Order. Some of those facts are repeated here.

Footnote 2: Education Law § 3020-a codifies the procedure for disciplinary action against tenured public school teachers.