SUPREME COURT OF THE ST NEW YORK - NEW YORK COUNTY PRESENT: d-m 5: WYfOIN PART Index Number : 106290/2008 JENKINS, ANTONIO INDEX NO. vs MOTION DATE NYS PUBLIC EMPLOYMENT MOTION SEQ. NO. Sequence Number : 001 ARTICLE 78 MOTION CAL. NO. The followlng papers, numbered 1 to were read on thls motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhlblts ... Answering Affidavits - Exhlblts Replying Affidavits Cross-Motion: 1. 1 Yes No Upon the foregoing papers, it is ordered that this /3 A LL \ A LLCC9rL C 4 C rJI Dated: /a- (fag' Check one: 1I FINAL DISPOSITION n NON-FINAL DISPOSITION Check if appropriate: 1 DO NOT POST 1 I REFERENCE
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YON; IAS PART 55 -f-l___l---------r_l__-_______ X _ ___llrl-1---------------------"------ In the Matter of the Application of ANTONIO JENKINS, Petitioner, Index No. 106290/08 -against- STATE OF NEW YORK PUBLIC EMPLOYMENT DECISION. ORDER 4 RELATIONS BOARD and UNITED OF TEACHERS, LOCAL 2, AMERIC Respondent United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO (UFT),' is the exclusive bargaining representative of a unit of employees of the Board of Education of the City of New York (BOE), which includes teachers, such as petitioner Antonio Jenkins herein. The UFT and BOE were respondents in the underlying proceeding before respondent New York State Public Employment Relations Board (PERB) commenced by Jenkins, which resulted in an administrative order on April 3,2008 (the Determination). Jenkins now seeks to annul the Determination in this Article 78 proceeding. -GROUND Jenkins was a teacher at P.S. 194, located in northern Manhattan. For the 2004- 2005 school year, Jenkins was assigned to a non-music cluster teaching position, notwithstanding the fact that he was previously assigned to a music cluster position. According to the BOE, Jenkins was not assigned to a music cluster position because he did not hold a New York State Certification in Music. The individual who was assigned this position did have such I By order of this court, dated July 23,2008, the UFT was granted permission to intervene in this proceeding and to be added as a party-respondent.
certification. In September 2004, Jenkins filed a grievance regarding the BOE’s failure to assign him to the music cluster teaching position. In September 2006, the UFT represented Jenkins at an arbitration regarding his 2004 grievance. After reviewing the arguments presented by the parties and the contractual articles cited in the grievance, the arbitrator decided against Jenkins, holding that he was not entitled to assignment as a music cluster teacher. In September 2005, Jenkins was again assigned to a non-music cluster teaching position. He filed another grievance protesting the BOE’s failure to assign him the position. Jenkins’ 2005 grievance was heard at the first and second steps of the grievance process. The UFT provided representation to Jenkins during each of these grievance steps. Jenkins was again unsuccessful at the first and second steps of thc grievance process. Respondents advise the court that, at no time during this process, did Jenkins take the necessary steps to obtain a certification in music. By letter, dated December 6,2005, the UFT notified Jenkins that the UFT would not pursue his 2005 grievance to the third step of the process because, in the UFT’s opinion, the grievance did not have sufficient substance. In the letter, the UFT also informed Jenkins of his right to appeal this decision to the UFT Grievance Department, in writing, within 10 days of receipt of the letter. Jenkins did file such an appeal. The UFT Grievance Department, by letter, dated April 26, 2006, informed Jenkins that it would not pursue his September 2005 grievance any further, and advised him of his right to appeal these findings to the UFT Administrative Committee. Jenkins requested such review, and the UFT Administrative Committee conducted a meeting on June 19,2006. Jenkins attended the meeting, and presented his arguments and 2
explained why he felt that his position was meritorious. The UFT Administrative Committee, however, did not agree with Jenkins. By letter, dated June 27, 2006, the UFT Administrative Committee ruled against Jenkins, concluding that “there is no further action that the [UFT] can take on your behalf regarding this grievance. In the interim, Jenkins filed an Improper Practice complaint with PEW in which he alleged that: (a) his employer, the BOE, retaliated against him for pursuing various contract grievances, by assigning him as a substitute for a special education teacher, and that the principal at his school acted in a hostile, abusive and threatening manner towards him; and (b) the UFT breached its duty of fair representation to him when it refused to pursue his 2005 grievance past the second step of the contractual grievance process. Hearings were conducted by an administrative law judge, who, by decision, dated August 14,2007, dismissed Jenkins’ charges against the UFT and the BOE. Jenkins filed exceptions to the decision of the ALJ, claiming that the ALJ’s ruling was erroneous. PERB reviewed thc record and, on April 3,2008, issued the Determination ruling that the UFT did not act arbitrarily, discriminatorily, or in bad faith. With respect to Jenkins’s claims against the BOE, PERB held that Jenkins had established a prima facie case of improper motivation by the BOE as part of his direct case. However, PEREI went on to accept the ALJ’s finding that the principal’s account of the relevant events was more credible than Jenkins’s account, and therefore PERB did not disturb the ALJ’s credibility determinations. In this Article 78 proceeding, Jenkins now challenges the Determination. grsCussIQrv The standard of review in an Article 78 proceeding is whether the administrative 3
determination was arbitrary and capricious. The court must confirm it if it is rationally based on the facts in the record (see Matter of Pell v Bourd of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mumaroneck, Westchester County, 34 NY2d 222,23 1 [ 19741; Matter of 31 171 Owners Corp. v New York City Dept. of Hous. Preserv. & Dev. , 190 AD2d 44 1, 445 [ 1 st Dept 19931; Matter of Montgomery v New York Cily IYous. Auth., 56 AD2d 778 [ 1’‘ Dept 19771; Matter of Figueroa v Hernundez, 194 Misc 2d 413 [Sup Ct, NY County 20023). Where an agency’s determination is founded on a rational basis, it should be affirmed (Matter of Colton v Berman, 21 NY2d 322 [ 1967]), even if the court would have come to a different conclusion (Matter of Mid-State Mpt. Corp. v New York City Conciliation and Appeals Bd., 112 AD2d 72 [lst Dept], @d 66 NY2d 1032 [1985]). The court’s function is accomplished upon finding that a rational basis supports the agency’s determination (Mutter of Howard v Wyrnan, 28 NY2d 434 [1971]). Furthermore, the court may not substitute its judgment for that of the respondent whcre its decision is rationally based in the record (Fresh Meadows Assoc. v Conciliution and Appeals Bd , 88 Misc 2d 1003 [Sup Ct, NY County], afd 55 AD2d 559 [ 1s t Dept 19761, afd 42 NY2d 925 [ 19771; Matter of Pell, supra; Mutter of Howard-Carol Tenants’ Assn. v New York City Conciliation and Appeals Bd. , 64 AD2d 546 [ 1s t Dept 19781, afld 48 NY2d 768 [ 19791). The scope of review that is applied to PERB’s interpretation of the applicable statutory law is very limited, and should not be interfered with unless such interpretation was “affected by an error of law, or was arbitrary and capricious, or an abuse of discretion” (see Mutter of Incorporated Vil. of Lynbrook v New York State Pub. Empl, Relations Bd, 48 NY2d 398, 404 [ 19791 [internal quotation marks omitted]). PERB “[als the agency charged with 4
implementing the fundamental policies of the Taylor Law . . . is presumed to have developed an expertise and judgment that requires [the courts] to accept its construction if not unreasonable” (id.).I t is not the function of the reviewing court to weigh the evidence, reject testimony or substitute its judgment on matters of credibility - that function is for the administrative agency, i.e., PERB (see e.g Matter of De Vito v Kinsella, 234 AD2d 640,642 [3d Dept 19961; Matter of New York City Tr. Auth. [New York State Pub. Ernpl. Relations Bd], 154 AD2d 680 [2d Dept 19891). PERB contends that the Determination adequately sets forth the basis upon which it was made, that it was made under express statutory authority, and that it is supported by substantial evidence, has a reasonable basis in law, and is neither arbitrary, capricious, nor an abuse of discretion. The UFT additionally argues that it did not breach any duty of fair representation to Jenkins, and that its decisions were made in conformity with all applicable contracts, laws and rules. Upon review, the court concludes that PERB’s determination that the UFT did not breach its duty of fair representation was reasonable and groundcd on precedent. The court therefore will not disturb that aspect of the Determination. Jenkins fares no better with respect to his claim that PERB erred in crediting the principal’s account of the events over his, and that the principal was not improperly motivated in assigning him to a special education class andor that the principal’s behavior during certain meetings was not intended to interfere with his right to file grievances. PERB already considered and weighed the evidence on these issues, and Jenkins presents no basis why this court should reach a different conclusion and substitute its judgment for PERB on such matters of credibility. 5
Bascd on the foregoing, the court holds that the Determination was rationally based, and was neither arbitrary nor capricious. CONCLUSION Accordingly, it is ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed. This constitutes the decision, order and judgment of this court. Dated: December/g2008 , , ..* 6
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