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

Labor & Employment Law

: New York Public Personnel Law

The employer's failure to reply to a request to withdraw a resignation otherwise permitted by its Regulations is arbitrary and an abuse of discretion

The employer's failure to reply to a request to withdraw a resignation otherwise permitted by its Regulations is arbitrary and an abuse of discretion
Matter of Mendez v New York City Dept. of Educ., 2010 NY Slip Op 30889(U), April 9, 2010, Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]

When the New York City Department of Education declined to permit Mildred Mendez, a then tenured teacher, to withdraw her letter of resignation, Mendez sued seeking a court compelling the DOE to honor her request to withdraw the resignation and to reinstate her as a teacher with back pay.

Mendez contended that she submitted her resignation because she believed, ?based on threats made by her school's principal,? that she would receive an unsatisfactory rating and risked losing her teaching license in a disciplinary proceeding under Education Law §3020-a.

According to the decision:

1. Mendez was advised by her union representative to resign her position to avoid the §3020-a proceeding.

2. After Mendez submitted a letter of resignation to her principal, the principal informed her that she had received her letter of resignation, but that it needed to be in a different format, and ?requested that Mendez sign a form resignation letter stating that she ?irrevocably resigned her position.?

3. Mendez refused to change the form of her letter and, instead, submitted an application to withdraw her resignation.

4. Mendez was then reassigned to a different school but ultimately removed from the payroll on August 28, 2008.

Although Mendez then sent DOE a number of letters asking that she be restored to the payroll, DOE did not reply to any of her correspondence.

Judge Solomon said that although [DOE] Chancellor?s Regulation 205(26) states that once a resignation is submitted, it is considered final, Chancellor?s Regulation 205(29) provides [subject to limitations not here relevant] ?that a teacher who attained tenure prior to the resignation shall remain tenured and shall, upon written request, be permitted to withdraw her resignation subject only to the medical examination and the approval of the Chancellor, provided that the reinstatement occurs within the next five years before the opening of school in September.?*

The court rejected DOE motion to dismiss Mendez?s petition as untimely, noting that:

1. Mendez had five years from September 1, 2008 to request to withdraw her resignation and be reinstated as a tenured teacher. Even if the court were to deem her Article 78 petition the first notice of this request, it would have been timely.

2. Mendez sought withdrawal before its effective date and the Chancellor has not responded to the request.

Mendez also argued that the initial resignation was ineffective ?because there was no meeting of the minds? as the principal did not accept her resignation as written, and instead proposed alternative language.

Judge Solomon ruled that ?Given the mandatory language of Chancellor's Regulation 205(29) that the withdrawal shall be granted [emphasis in the opinion] subject to approval, the Chancellor's failure to approve or disapprove the withdrawal of her resignation for nearly two years is unconscionable."**

Further, said the court, no explanation or excuse for the Chancellor's inaction was offered by DOE and even had there been a reason to refuse to approve Mendez's request to withdraw the resignation, the unreasonable delay in communicating the reason is itself arbitrary, irrational and an abuse of discretion.

As DOE had not yet serve an answer to Mendez?s petition, Judge Solomon said that a final determination of her petition would be premature and directed DOE to serve an answer to the petition Mendez had filed seeking reinstatement and back salary.

* Article 5(E) of the collective bargaining agreement between the DOE and Mendez?s union sets out substantially the same terms and conditions as set out in Chancellor?s Regulation 205(29).

** In contrast, typically civil service commission rules for the classified service [educators are in the unclassified service] provide that once a resignation has been delivered to the appointing authority, the individual's request to withdraw such resignation is subject to approval at the discretion of the appointing authority. See, for example, 4 NYCRR 5.3(c), which, in pertinent part, provides that "A resignation [which must be in writing] may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30889.pdf

Full post as published by New York Public Personnel Law on April 22, 2010 (boomark / email).