Hogue v. The Bd. of Educ.

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2024 NY Slip Op 30774(U)

JAMES HOGUE, Petitioner, v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, COMMUNITY SCHOOL DISTRICT 28 OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK Respondents.

Index No. 159968/2021, Motion Seq. Nos. 001, 002

Supreme Court, New York County

March 11, 2024

Unpublished Opinion

MOTION DATE 03/04/2024 ^[1]

DECISION+ ORDER ON MOTION

HON ARLENE P. BLUTH Justice The following e-filed documents, listed by NYSCEF document number (Motion 001) 1- 18, 20, 21,22, 23, 24, 25, 26, 27, 28, 29 30, 31,32, 33, 34, 35, 36, 37, 38 were read on this motion to/for ARTICLE 78.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 were read on this motion to/for AMEND CAPTION/PLEADINGS_.

Motion Sequence Numbers 001 and 002 are consolidated for disposition. The crossmotion by respondents to dismiss the petition (MS001) is granted. Petitioner's motion (MS002) to amend is denied.

Background

This proceeding arises out of an arbitration decision issued after an impasse between the City of New York's the Department of Education ("DOE") and the United Federation of Teachers ("UFT") concerning the COVID-19 vaccine mandate. Petitioner is a tenured teacher for respondents and refused to comply with the vaccine mandate or a binding arbitration award's process for seeking an exemption. He contends he was placed on leave without pay in October 2021 after failing to meet the deadline to show proof that he received at least one vaccination dose or that he received an accommodation. Petitioner commenced this proceeding to inter cilia challenge the arbitration award and to demand that he receive the disciplinary process afforded to tenured teachers under the Education Law.

Respondents contend that the petition should be dismissed because petitioner failed to name a necessary party, he lacks standing to challenge the arbitral award at issue here and he fails to state a cause of action. They explain that the award resolved an impasse between DOE and petitioner's union (UFT) and therefore petitioner cannot independently challenge that determination. Respondents observe that petitioner failed to name UFT as a party to this proceeding. Respondents also assert that the vaccination requirement is a condition of employment and so petitioner's claims about the ordinary disciplinary process are inapplicable.

In opposition to the cross-motion, petitioner admits he was not a party to the arbitration award but claims that he has standing to challenge it. He claims he is entitled to the disciplinary process provided to tenured teachers. Petitioner argues that UFT is not a necessary party because it will not be affected by any decision concerning the arbitral award. He insists that Education Law § 3020-a (which sets forth procedures about disciplinary hearings for teachers) is applicable and he is entitled to that process.

Petitioner contends that he never waived any of his legal rights and that his placement in a "leave without pay" status was arbitrary and capricious. He adds that the arbitrator exceeded his authority and that the entire arbitration award must therefore be vacated. In reply, respondents contend that petitioner did not show that he has standing, that he failed to join UFT as a party and that he failed to exhaust his administrative remedies. They argue that Education Law § 3020-a does not apply because petitioner was not subject to discipline and that he was provided the required process under the relevant collective bargaining agreement.

Discussion

The Court observes that Appellate Division, First Department has decided the very issues raised here in O'Reilly v Bd of Educ. of City School Di st. of City of New York (213 A.D.3d 560, 561, 185 N.Y.S.3d 14 [1st Dept 2023]). In that case, the First Department observed that:

"We are asked on this appeal to decide whether tenured public school teachers are bound by the results of an arbitration initiated by their union, the United Federation of Teachers (UFT), pursuant to Civil Service Law § 209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate. The September 10, 2021 Impact Award, which petitioners challenge in this hybrid article 75/ article 78 proceeding, established a procedure for handling requests for religious and medical exemptions. The article 75 claims were properly dismissed, as petitioners lack standing to challenge the Impact Award and failed to join UFT as a necessary party. The article 75 claims also fail on the merits. As to the article 78 claims, petitioners are unable to show that DOE made an error of law or acted irrationally" (id. at 561).

The vaccination requirement for DOE employees was considered a condition of employment and the arbitral award provided for religious and medical exemptions (id. at 562- 63). The First Department concluded that the DOE petitioners in the combined appeal lacked standing (id. at 565). "When a union represents employees during arbitration, only that union -not individual employees - may seek to vacate the resulting award" (id.).

Moreover just as here, the petitioners in O Reilly failed to name the UFT, which was a necessary part...