Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Termination following discipline hearing conducted in absentia upheld

Termination following discipline hearing conducted in absentia upheld
Chawki v New York City Department of Education, Manhattan High Schools, District 71, 39 AD3d 321

The New York City Department of Education (DOE) served disciplinary charges and specifications on Houda Chawki, a tenured high school teacher. The Department alleged that Chawki was guilty of excessive absences and lateness, inappropriate behavior and unsatisfactory teaching. DOE urged that Chawki be dismissed from her position.

The relevant law and provisions set out in the Collective Bargaining Agreement between the DOE and the United Federation of Teachers (UFT) provide that a tenured teacher in receipt of notice of charges involving pedagogical incompetence has 10 days to submit a written request that he or she wanted a hearing on the charges and, in addition, was required to indicate whether the teacher wished a single arbitrator or a panel of three arbitrators to conduct the hearing.

On October 18, Chawki requested a hearing but the form she submitted did not provide any space for her to indicate her preference as to the composition of the panel. Sometime later Chawki asked that the matter be heard by a panel of three arbitrators and stating that she would represent herself in the proceedings.

After a number of postponements requested by Chawki, the arbitrator advised her that ?additional postponements would not be approved without ?proof of the most compelling circumstances,? and that failure to appear would result in the proceedings being conducted in her absence.?

On November 30, 2002, Chawki wrote indicating that she would not be able to attend the December 2, 2002 pre-hearing conference as scheduled because the attorney provided to her by the United Federation of Teachers [UFT] to represent her in a federal action against the Board of Education would be filing a motion in Eastern District Court for a temporary restraining order staying arbitration.

Notwithstanding this representation, Chawki did appear at the pre-hearing conference, but without counsel. She told the arbitrator that she was present solely for the purpose of delivering her November 30, 2002 letter and not to attend the scheduled hearing. Her presence and purpose were noted on the record, and the arbitration hearing proceeded in her absence on December 2 and 3. The arbitrator found Chawki guilty of ?virtually all charges? preferred against her and she was subsequently terminated from her position.

Chawki sued, petitioning the court to vacate the award claiming that the arbitrator failed to follow the procedure of CPLR article 75 and engaged in misconduct.*

In rebuttal, DOE argued, among other things, that Chawki?s request for a three-member arbitration panel was untimely.**

Supreme Court vacated the arbitration award, holding, among other things, that the arbitrator was not properly sworn in accordance with CPLR 7506(a). The Appellate Division overturned the lower court's decision.

As to the arbitrator?s decision to proceed with the hearing in absentia, the Appellate Division said that CPLR 7506(c) provides, ?Notwithstanding the failure of a party duly notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced.? As there was no question that Chawki received adequate notice of the proceedings and actually appeared on the hearing date, the only question regarding the alleged ?arbitral misconduct,?*** said the Appellate Division, concerns the denial of an adjournment.

In the words of the Appellate Division:

Resolving issues involving any adjournment of the arbitration is ?a matter that lies in the sound exercise of the arbitrator?s discretion, which will only be disturbed if abused (Matter of Bevona [Superior Maintenance Co.]), 204 AD2d 136.

The Appellate Division ruled that Chawki had been advised that the matter would be heard as scheduled and warned that adjournment would require compelling circumstances.

The court also noted that ?The six weeks between the time [Chawki] received notice of the charges against her and the date proceedings commenced afforded ample time to prepare for the hearing and consult counsel.? Accordingly, said the court, Chawki?s request for an adjournment was appropriately rejected.

In the words of the court: A party?s unjustified refusal to participate in an arbitration hearing does not afford a basis for attack upon an award rendered on default (CPLR 7506[c]) and may not be utilized to frustrate this State?s ?strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system, where equity should be done.?

The court also ruled that because Chawki?s request for the matter to be heard by a three-member panel was untimely, the matter was properly heard by a single arbitrator.

Finally, as to Chawki?s claim that the fact that the Hearing Officer was not sworn in accordance with CPLR 7506(a) requires that the award be vacated, the Appellate Division ruled that regardless of the accuracy of Chawki?s representation in this regard, the Rule in the First Circuit is that ?the failure of an arbitrator to take an oath is a technical irregularity not warranting judicial intervention,? citing Matter of Institute of Intl. Educ. [Permanent Mission of Spain to United Nations], 118 AD2d 433, leave to appeal denied 68 NY2d 608.****

The order and judgment of the Supreme Court, New York County was unanimously reversed by the Appellate Division and the arbitration award was confirmed.

============================================
If you are interested in learning more about disciplinary actions please click here: http://thedisciplinebook.blogspot.com/2009/03/discipline-book.html ============================================

* Chawki alleged that the minutes fail to reflect that the arbitrator was ever sworn in (CPLR 7506[a]), that she was deprived of her right to a hearing before a panel of three arbitrators and that the arbitrator failed to adjourn the proceedings in order to give her sufficient time to confer with counsel and to review evidentiary materials.

** DOE also argued that even if an oath were required, it was waived by the failure to interpose any objection to the manner in which the proceedings were conducted.

*** See CPLR 7511[b]*[I])

**** In contrast, the critical importance of designating a hearing officer or the members of a hearing panel in writing is demonstrated by the Appellate Division?s decision in Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority ?lacked jurisdiction? to maintain the initial disciplinary proceeding against Perez. Accordingly, the Appellate Division ?voided? the appointing authority?s determination finding Perez guilty of the charges and vacated the penalty.

Full post as published by New York Public Personnel Law on March 24, 2010 (boomark / email).