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Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuit

Failure to exhaust administrative remedy by not filing a contract grievance results in dismissal of terminated employee?s lawsuit
Matter of Cummings v Board of Education of Sharon Springs Cent. School District, 2009 NY Slip Op 01570, 2009 NY Slip Op 01570, Appellate Division, Third Department

Ginger Cummings was terminated from her position as a school bus driver with the Sharon Springs Central School District because ?while off duty, she purportedly created and transmitted a false e-mail document? to the District. Cummings appealed, seeking a court order directing the District to reinstate her to her from position with back salary and benefits.

The District asked Supreme Court to dismiss her petition because [1] she had not served it with a timely notice of claim as required by Education Law §3813(1) and [2] Cummings had failed to exhaust her administrative remedies by not using the grievance procedures set out in the collective bargaining agreement (CBA).

Supreme Court ruled that Cummings had ?failed to timely serve a verified notice of claim and dismissed her petition. Cummings appealed.

As to the issue of whether Cummings had filed an timely notice of claim, the Appellate Division said that the letter sent by Cummings? counsel to the District ?satisfied the notice of claim condition precedent to suit set forth in Education Law § 3813.

Substantial compliance with the notice requirement of Education Law §3813,? said the court, is sufficient, even in the absence of verification as set forth in the statute, so long as the purported notice "contain[s] a sufficient degree of descriptive detail and was adequately served upon the [respondent]," citing Pope v Hempstead Union Free School Dist. Bd. of Educ., 194 AD2d 654 [leave to appeal denied 82 NY2d].

In this instance the letter sent by the attorney stated, among other things, the details of the claim, the reasons why Cummings was disputing her termination and her intent to pursue litigation in the event the matter was not resolved in her favor. This communication, said the Appellate Division, ?constituted sufficient notice to [the District] for purposes of Education Law §3813.?

Cummings, however, did not fare as well with respect to defeating the District?s argument that she had failed to exhaust her administrative remedies.

The Appellate Division agreed with the District that she had failed to avail herself of administrative recourse available to her; in this instance the contract grievance procedure set out in the collective bargaining agreement.

In the words of the court, in general, "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 but must proceed, through the union, in accordance with the contract," citing Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 NY2d 501. Although an employee may directly litigate an allegation that "the union fail[ed] in its duty of fair representation," that was not an issue in Cummings? lawsuit.

Rather, ?regardless of the phrasing employed by [Cummings] in asserting her claims, the Appellate Division ruled that the substance of her petition is that she was terminated without "just cause."

The relevant CBA specifically stated that no permanent employee "may be disciplined without just cause" and set forth a detailed, four-step grievance procedure for resolving disputes. Cummings? failure to use the grievance process without demonstrating factors justifying excusing her from the requirement that she exhaust her administrative remedies resulted in the Appellate Division dismissing her appeal.

The full text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01570.htm

Full post as published by New York Public Personnel Law on March 17, 2009 (boomark / email).