Barrera v. Frontier Central School District

249 A.D.2d 927, 672 N.Y.S.2d 218, 1998 N.Y. App. Div. LEXIS 5010

Opinion

—Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Respondent appeals from a judgment that granted the CPLR article 78 petition alleging that respondent impermissibly terminated petitioner’s employment without a hearing in violation of Civil Service Law § 75. Supreme Court thereby annulled respondent’s determination to accept the “resignation” of petitioner from her position as a school bus driver, reinstated her to that position, and granted her back pay and benefits. Respondent contends that petitioner was not entitled to a hearing before respondent accepted her “resignation” pursuant to a provision of the collective bargaining agreement that deems an absence without leave in excess of 10 consecutive work days to constitute a resignation from employment.

An employer’s acceptance of an employee’s constructive resignation, as provided by a collective bargaining agreement, is not a disciplinary action that entitles the employee to prior notice or a hearing (see, Matter of Plummer v Klepak, 48 NY2d 486, 489-490, cert denied 445 US 952). An agreement between the employer and the union constitutes a waiver of the employee’s protections under Civil Service Law § 75. Further, due process is satisfied by the inclusion of a grievance procedure in the collective bargaining agreement, irrespective of whether petitioner availed herself of that grievance procedure (see, Matter of Plummer v Klepak, supra, at 489-490; see also, Antinore v State of New York, 49 AD2d 6, 10-12, affd 40 NY2d 921; Guilford v City of Buffalo, 177 AD2d 971, 971-972, appeal dismissed and lv denied 79 NY2d 912; Matter of Flemming v Cagliostro, 53 AD2d 187, 189, lv denied 40 NY2d 806; see generally, Civil Service Law § 76 [4]). (Appeal from Judgment of Supreme Court, Erie County, Doyle, J. — CPLR art IS.) Present — Denman, P. J., Lawton, Pigott, Jr., Balio and Boehm, JJ.