Pepin v New York City Dept. of Educ.

[*1] Pepin v New York City Dept. of Educ. 2015 NY Slip Op 51989(U) Decided on November 20, 2015 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2015
Supreme Court, New York County

Milciades Pepin, Petitioner, For an Order and Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York City Department of Education, Respondent



100727/2014
Lucy Billings, J.

Petitioner seeks an injunction against respondent New York City Department of Education to annul the internal "problem code" assigned to him and to grant his application for a Certificate of Eligibility, which will facilitate a meaningful opportunity for him to obtain employment with respondent. Respondent cross-moves to dismiss the petition, because it is barred by res judicata and the applicable statute of limitations, and it fails to state a claim for relief. C.P.L.R. § 3211(a)(5) and (7).

I. PETITIONER'S TWO PROCEEDINGS

In a prior proceeding, petitioner challenged (1) respondent's discontinuance of his probationary employment as an assistant principal due to his misconduct, (2) its unsatisfactory rating of his performance in that position for the 2009-2010 school year, and (3) its placement of petitioner on a list of persons ineligible for future employment with respondent. The court granted that petition to the extent of annulling the unsatisfactory rating and prohibiting respondent's assignment of a problem code to petitioner only insofar as it was based on the annulled rating, unsubstantiated misconduct recited in a report by the Special Commissioner of Investigation, or misconduct not documented in petitioner's employment file. Pepin v. New York City Dept. of Educ., 45 Misc 3d 1221 (Sup. Ct. NY Co. 2014). The court upheld respondent's discontinuance of petiioner's probationary employment based on his own admission of misconduct in sending a prank email to his supervisors through respondent's email system, falsely alleging a love triangle. Pepin v. New York City Dept. of Educ., 39 Misc 3d 1214 (Sup. Ct. NY Co. 2012).

In this proceeding, petitioner now claims that respondent's refusal to determine his applications for a Certificate of Eligibility based on his problem code has constructively terminated his school administrator and supervisor license in violation of due process and the specific procedure required by respondent's Regulation of the Chancellor § C-31(3.1). C.P.L.R. § 7803(3). Regulation of the Chancellor § C-30(III) requires that an applicant for supervisory positions be on qualifying supervisory eligible lists, which in turn requires the applicant to possess a Certificate of Eligibility for Supervisory Placement issued by respondent's Division of Human Resources and Talent. Petitioner's repeated attempts to apply for that Certificate of [*2]Eligibility have resulted only in notices from respondent that his application was under investigation due to a problem code based on the discontinuance of his probationary employment. Petitioner insists that respondent's failure to issue a Certificate of Eligibility, despite his applications showing his academic and professional qualifications for supervisory positions, bars him from future employment with respondent, which he equates to a termination of his administrator and supervisor license in violation of the procedure for license terminations.

II. RESPONDENT'S GROUNDS FOR DISMISSAL OF THIS PETITION'S CLAIMS

Assessing petitioner's claims in the most favorable light, as the court must in determining a motion to dismiss the claims, JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 (2015); Miglino v. Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 (2013); Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Siegmund Strauss, Inc. v. E. 149th Realty Corp., 104 AD3d 401, 403 (1st Dep't 2013), the petition fails to allege any ground on which to annul the problem code based on the discontinuance of petitioner's probationary employment or to order respondent to grant any of petitioner's applications for the Certificate of Eligibility.

A. Annulment of the Problem Code

Contrary to petitioner's insistence, the court once again reiterates that its decision in petitioner's prior proceeding does not prohibit respondent from assigning petitioner a problem code altogether. The prior order prohibits respondent only from basing such a code on the annulled unsatisfactory rating for the 2009-2010 school year or on the charges of misconduct unsubstantiated in the Special Commissioner of Investigation's report or undocumented in petitioner's employment file. Pepin v. New York City Dept. of Educ., 45 Misc 3d 1221, 2014 WL 6673882, at *3. As the court already determined, respondent may rationally assign the problem code and deny petitioner's application for future employment based on respondent's prior discontinuance of his probationary employment, which in turn was permissibly based on the substantiated misconduct in sending a prank email to which petitioner himself admitted. Id.

Thus, insofar as the current petition seeks removal of the problem code, the court already adjudicated this claim. Here, petitioner neither alleges nor shows that respondent's use of the code is based on grounds other than the discontinuance of his probationary employment, let alone on impermissible grounds that present a new claim not barred by res judicata. C.P.L.R. 3211(a)(5); Matter of Hunter, 4 NY3d 260, 269 (2005); Bevilacqua v. CPR/Extell Parcel I, L.P., 126 AD3d 429, 429 (1st Dep't 2015); Andrade v. New York City Police Dept., 106 AD3d 520, 521 (1st Dep't 2013); Pitcock v. Kasowitz, Benson, Torres & Friedman, LLP, 80 AD3d 453, 454 (1st Dep't 2011). See Landau, P.C. v. LaRossa, Mitchell & Ross, 11 NY3d 8, 13 (2008).

B. Petitioner's Application for a Certificate of Eligibility

Although respondent has not substantiated its claim that it has eliminated the requirement for a Certificate of Eligibility, petitioner's claim that respondent's inaction on his applications for the Certificate of Eligibility has constructively terminated his school administrator and supervisor license fails in any event. C.P.L.R. § 3211(a)(7). Respondent has neither denied nor made any other final determination of any of petitioner's applications for the certificate. Therefore the only relief the court may order is that respondent (1) determine his application or (2) notify him that Regulation of the Chancellor § C-30(III) has been repealed or amended to eliminate a requirement of (a) placement on qualifying supervisory eligible lists for supervisory positions or (b) a Certificate of Eligibility for placement on such lists. C.P.L.R. § 7803(1).

Contrary to petitioner's assumption, however, nothing in the statutes or regulations governing respondent entitles petitioner to a Certificate of Eligibility based merely on his [*3]academic and professional qualifications. Regulation of the Chancellor § C-205(1)(a)(3) requires that a certificate be granted only when an applicant has satisfied the requirements governing "review of record, citizenship and verification of employment eligibility" and any applicable requirements imposed by other regulations and statutes. Petitioner has not shown that he has satisfied all the requirements encompassed by the broad scope of Regulation § C-205(1)(a)(3). Nor does it prohibit respondent from considering petitioner's prior discontinuance due to misconduct in assessing his eligibility for employment and his satisfaction of the requirements for a certificate.

Finally, respondent's refusal to grant petitioner a Certificate of Eligibility does not equate to a termination of his administrator and supervisor license. While respondent may have limited petitioner's prospects of employment with respondent, the license qualifies him for any school administrative or supervisory positions that do not require a certificate from respondent: positions with other employers in New York City and with any other employers in New York State, which issues the statewide license. NY Educ. Law § 3001(2); Aff. of Milciades Pepin in Opp'n Ex. 3 (Sept. 15, 2014). No evidence supports his claim that he has been prohibited from ever obtaining any school administrative or supervisory position, including with respondent in the future, even though respondent or any other employer retains the discretion to refuse to hire petitioner as long as the refusal is not for a discriminatory or other unlawful reason. Pierson v. New York City Dept. of Educ., 106 AD3d 579, 579 (1st Dep't 2013); Bedny v. New York Sate Div. of Human Rights, 84 AD3d 586, 586 (1st Dep't 2011). The discontinuance of petitioner's probationary employment based on substantiated misconduct provides a legitimate non-discriminatory reason for respondent's rejection of his employment applications.

III. MANDAMUS

Although respondent's witness attests that respondent has not approved petitioner's applications for a Certificate of Eligibility due also to the discontinuance of his probationary employment based on substantiated misconduct, at the same time this witness attests that petitioner's applications remain "under review," implying that any disapproval is subject to revision. Aff. of Kathrina Atkinson ¶ 6 (Nov. 3, 2014). Consistent with this ambiguity, respondent has never notified petitioner in writing of any such disappproval of his application. Nor has respondent given any reason for respondent's months, even years, of inaction on his applications. Therefore, to assure that the failure to grant the Certificate of Eligibility is for a legitimate non-discriminatory reason, petitioner is entitled to an unambiguous written determination of his applications for the certificate.

While petitioner cites no statute or regulation requiring respondent to approve or disapprove an application for a Certificate of Eligibility within a specified period, the requirements of Regulations §§ C-30(III) and C-205(1)(a)(3) for such a certificate imply a procedure for obtaining the certificate. Such a procedure in turn requires at least a response to a request for the certificate. Gonkjur Assoc. v. Abrams, 57 NY2d 853, 855 (1982); Utica Cheese v. Barber, 49 NY2d 1028, 1030 (1980); Flosar Realty LLC v. New York City Hous. Auth., 127 AD3d 147, 153-54 (1st Dep't 2015). See Cortlandt Nursing Home v. Axelrod, 66 NY2d 169, 180, 183 (1985); Clark v. Schriro, 91 AD3d 483, 483 (1st Dep't 2012). Respondent does not attribute its lack of response to its lack of resources, the complexity of the issues to be resolved, the implementation of a time consuming remedy, or petitioner's own actions. Cortlandt Nursing Home v. Axelrod, 66 NY2d at 181-82. Respondent's only explanation is that petitioner's application for a Certificate of Eligibility remains "under review." Atkinson Aff. ¶ 6 (Nov. 3, 2014).

Particularly when petitioner seeks a determination of his application for the Certificate of Eligibility to complete his applications for positions with respondent, however, it bears emphasis that the requirements to be satisfied under Regulation § C-205(1)(a)(3) are so broad and undefined that they do not mandate approval of his application for the certificate. Maron v. Silver, 14 NY3d 230, 249 (2010); Flosar Realty LLC v. New York City Hous. Auth., 127 AD3d [*4]at 152-53; Williamsburg Ind. People, Inc. v. Tierney, 91 AD3d 538, 538 (1st Dep't 2012); Hazen v. Board of Educ. of City School Dist. of City of NY, 75 AD3d 471, 471 (1st Dep't 2010). Therefore respondent's determination of his application for the certificate may not necessarily assist him in completing his applications for positions with respondent. Nothing mandates a response of any specific substance, as long as it does not suggest that a denial, disapproval, or other negative action is for an unlawful reason. It bears emphasis once again that petitioner's discontinuance is not an unlawful reason.

Whether respondent's determination of petitioner's application for a Certificate of Eligibility is positive or negative, the determination will be impervious to further challenge, unless the reason for any negative action is unlawful. Since nothing suggests that respondent's reason for inaction on petitioner's applications is unlawful, requiring a determination of his application may be an academic exercise. Nevertheless, under these unique circumstances, even a result that gives petitioner nothing to challenge further will serve a purpose. A determination also may inform him whether to continue to apply for a Certificate of Eligibility or not.

Insofar as petitioner states a claim for this limited relief, respondent is entitled to answer this claim and is required to file respondent's administrative record pertaining to the claim. C.P.L.R. §§ 3211(f), 7804(e). Given the extremely limited scope of this relief, however, it is unlikely that respondent's answer will articulate a stronger defense or produce a more complete record than already presented to address this limited claim. Nevertheless, if either party maintains that granting the petition to the limited extent of ordering respondents to determine petitioner's applications for a Certificate of Eligibility at this juncture is premature and perceives a purpose in awaiting respondent's answer on that claim, that party may move, by an order to show cause, to restore this proceeding. C.P.L.R. §§ 409(b), 7804(f), 7806; Applewhite v. Board of Educ. of the City Sch. Dist. of the City of NY, 115 AD3d 427, 428 (1st Dep't 2014). See Kickertz v. New York Univ., 25 NY3d 942, 944 (2015); Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educational Servs. of Nassau County, 63 NY2d 100, 102-103 (1984); Drug Policy Alliance v. New York City Tax Commn., 131 AD3d 815, 816-17 (1st Dep't 2015); Camacho v. Kelly, 57 AD3d 297, 299 (1st Dep't 2008).

Otherwise, within 30 days after service of this order with notice of entry, respondent shall issue to petitioner a written determination of his collective applications for a Certificate of Eligibility. Alternatively, respondent shall notify him that Regulation of the Chancellor § C-30(III) has been repealed or amended to eliminate a requirement of (a) placement on qualifying supervisory eligible lists for supervisory positions or (b) a Certificate of Eligibilty for placement on such lists. C.P.L.R. § 7803(1); Gonkjur Assoc. v. Abrams, 57 NY2d at 855; Utica Cheese v. Barber, 49 NY2d at 1030; Flosar Realty LLC v. New York City Hous. Auth., 127 AD3d at 153-54. If respondent finds that 30 days is an unreasonably short period, it may seek an extension of time. This limited relief is not an opportunity for petitioner to supplement his applications for the Certificate of Eligibility, unless respondent requests particular supplementation.

IV. DISPOSITION

For the reasons explained and on the condition set forth above, the court grants the petition to the limited extent provided and grants respondent's motion to dismiss the remainder of the petition based on res judicata and the failure to state a claim. C.P.L.R. §§ 3211(a)(5) and (7), 7803(1) and (3), 7806. Regarding the single claim for a determination of petitioner's applications for a Certificate of Eligibility that the court has not dismissed on those grounds, since respondent has never made a final and binding determination of petitioner's applications, from which no further administrative steps will follow, no statute of limitations applicable to this claim has run. C.P.L.R. § 217(1); Martin v. Ronan, 44 NY2d 374, 380-81 (1978); Burch v. New York City Health & Hosps. Corp., 118 AD3d 454, 454 (1st Dep't 2014); LaSonde v. Seabrook, 89 AD3d 132, 139-40 (1st Dep't 2011); Working Families Party v. Fisher, 109 AD3d 478, 479-80 (2d Dep't 2013).

Only in reply to petitioner's opposition to respondent's motion does respondent for the first time seek a both a monetary sanction against petitioner and an injunction against his pursuit of further litigation regarding his eligibility for employment with respondent. 22 N.Y.C.R.R. § 130-1.1. The absence of a motion for that relief constrains the court from now finding that petitioner's claims were frivolous so as to warrant sanctions, especially when not all his claims in either proceeding were completely lacking in merit. 22 N.Y.C.R.R. § 130-1.1(c) and (d); Matter of Lawrence, 79 AD3d 417, 417 (1st Dep't 2010); Landes v. Landes, 248 AD2d 268, 269 (1st Dep't 1998); Corrigan v. Orosco, 84 AD3d 955, 956 (2d Dep't 2011); Greenwood Trust Co. v. Roylance, 280 AD2d 848, 849 (3d Dep't 2001). See NYCTL 1997-1 Trust v. Seijas, 307 AD2d 876, 877 (1st Dep't 2003); Rudansky v. Giorgio Armani, S.p.A., 306 AD2d 174, 174 (1st Dep't 2003). This decision provides petitioner ample warning that he may not obtain any further relief in this proceeding, his prior proceeding, or any future related proceeding and that he will not be given another chance to pursue relief regarding his eligibility for employment with respondent and escape sanctions. 22 N.Y.C.R.R. § 130-1.1(c)(1) and (2); Bell v. State, 96 NY2d 811, 812 (2001); Cadlerock Joint Venture, L.P. v. Sol Greenberg & Sons Intl., Inc., 94 AD3d 580, 582 (1st Dep't 2012); Visual Arts Found., Inc. v. Egnasko, 91 AD3d 578, 579 (1st Dep't 2012); Pentalpha Enters., Ltd. v. Cooper & Dunham LLP, 91 AD3d 451, 452 (1st Dep't 2012). See Corsini v. Morgan, 123 AD3d 525, 527 (1st Dep't 2014); Sibersky v. Winters, 42 AD3d 402, 404 (1st Dep't 2007); Chase Bank, N.A. v. Phillips-Osuji, 120 AD3d 1194, 1195 (2d Dep't 2014).

DATED: November 20, 2015

_____________________________

LUCY BILLINGS, J.S.C.