In the Matter of Grant Springer, Appellant,v.Board of Education of the City School District of the City of New York, et al., Respondents.BriefN.Y.February 17, 2016 Reproduced on Recycled Paper To be argued by: DEVIN SLACK 10 minutes requested APL-2015-00085 Appellate Division, First Department, Appeal No. 13156 New York County Clerk’s Index No. 104080/2012 Court of Appeals State of New York In the Matter of the Application of GRANT SPRINGER, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules, against BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; and DENNIS M. WALCOTT, in his official capacity as Chancellor of the City School District of the City of New York, Respondents-Respondents. BRIEF FOR RESPONDENTS RICHARD DEARING CECELIA CHANG DEVIN SLACK of Counsel August 6, 2015 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents 100 Church Street New York, New York 10007 212-356-0817 dslack@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ...................................................................... iii PRELIMINARY STATEMENT .................................................................. 1 QUESTION PRESENTED ......................................................................... 4 STATEMENT OF THE CASE ................................................................... 5 A. Hiring Teachers in the New York City Public School System ...................................................................................... 5 B. The Procedure Governing Tenured Teachers Who Resign and Later Seek a New Position ................................... 7 C. The Procedural Safeguards Provided by the Chancellor’s Regulation and the CBA ................................... 11 1. Notice of a Teacher’s Future Status ............................. 12 2. Notice of and an Opportunity to Review a Teacher’s Prior Record .................................................. 14 D. Springer’s Failure to Withdraw His Resignation in Accordance with the Chancellor’s Regulation and the CBA ......................................................................................... 16 ARGUMENT ............................................................................................. 20 A. Springer’s Theory of “Constructive” Notice and Approval Nullifies the Procedural Safeguards Provided by the Chancellor’s Regulation and the CBA. ...................... 22 TABLE OF CONTENTS (cont’d) Page ii B. Springer’s New Argument Based on His April 2012 Request Is Unpreserved and Unexhausted. ......................... 33 CONCLUSION ......................................................................................... 39 TABLE OF AUTHORITIES Page(s) iii New York State Cases Andy Assocs., Inc. v. Bankers Trust Co., 49 N.Y.2d 13 (1979) .............................................................................. 25 Bd. of Educ. v. Ambach, 70 N.Y.2d 501 (1987) ...................................................................... 35, 36 Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003) ............................................................................ 5 Frasier v. Bd. of Educ., 71 N.Y.2d 763 (1988) .............................................................................. 7 Girard v. Bd. of Educ., 168 A.D.2d 183 (4th Dep’t 1991) ......................................................... 21 Gould v. Bd. of Educ., 81 N.Y.2d 446 (1993) ............................................................................ 21 Kahn v. N.Y.C. Dep’t of Educ., 18 N.Y.3d 457 (2012) ...................................................................... 37, 38 McGovern v. Mount Pleasant Cent. Sch. Dist., 25 N.Y.3d 1051 (2015) .......................................................................... 34 Plummer v. Klepak, 48 N.Y.2d 486 (1979) ............................................................................ 35 Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52 (1978) .............................................................................. 36 iv Other Cases Coollick v. Hughes, 699 F.3d 211 (2d Cir. 2012) ................................................................. 37 Krafchuk v. Planning Bd. of Ipswich, 903 N.E.2d 576 (Mass. 2009) ............................................................... 26 Statutes CIV. SERV. LAW § 200(c) ............................................................................ 35 C.P.L.R. § 7502(c) ..................................................................................... 37 C.P.L.R. § 7804(f) ...................................................................................... 17 EDUC. LAW § 2590-h .................................................................................... 5 EDUC. LAW § 3020-a .......................................................................... 2, 7, 19 Other Authorities BLACK’S LAW DICTIONARY 1090 (8th ed. 2004) ......................................... 25 1 PRELIMINARY STATEMENT Petitioner Grant Springer voluntarily resigned from a tenured teaching position with the New York City school district to work as a corporate chef. Within a few months, he had a change of heart and sought to return to teaching. After applying like any other applicant, Springer was hired to fill an open teaching position, subject to a one- year probationary term. Springer’s performance in his new position proved to be unsatisfactory, and his probationary service was discontinued at the end of the school year. By regulation, the Chancellor of the city school district has created a mechanism for tenured teachers like Springer to withdraw their prior resignations and thereby obtain full tenure rights in their new positions immediately—without having to serve a probationary term. However, to gain the benefit of the Chancellor’s regulation, a teacher seeking a new position with the city school district must: first, submit a written request to the Board of Education (the “BOE”) clearly expressing his intent to withdraw his prior resignation; and, second, receive the Chancellor’s approval to withdraw his resignation. 2 The regulation’s written-notice and central-approval requirements, which are also a negotiated term of the collective bargaining agreement between the city school district and the teachers’ union (the “CBA”), serve a vital role in the administration of the country’s largest school district. When a former teacher applies for a new position, the prescribed procedure helps ensure that hiring principals are fully informed about the applicant’s future status—most notably, whether the applicant, if hired, would be immediately entitled to full tenure rights in his new position or would instead be subject to a probationary term like any other new hire. The procedure also helps protect against the possibility of abuse that arises when a teacher seeks employment at one school after having resigned from a different school with performance problems or other issues that might potentially be unknown to a hiring principal. In particularly troubling cases, the regulation affords the Chancellor the opportunity to deny requests by teachers seeking to withdraw their resignations. In this article 78 proceeding, Springer claims that his service was improperly discontinued without an administrative hearing under Education Law § 3020-a—a contention that rises and falls on his belief 3 that he was entitled to full tenure rights in his new position by virtue of the Chancellor’s regulation. But Springer impermissibly seeks the benefit of the Chancellor’s regulation without having complied with its terms. When Springer sought a new position with the city school district, he failed to submit a written request to withdraw his prior resignation and, thus, he never received the Chancellor’s approval to withdraw his resignation. The Appellate Division, First Department, therefore unanimously affirmed the dismissal of Springer’s petition. This Court should affirm. The Appellate Division properly rejected Springer’s contention that he provided “constructive” notice of his desire to withdraw his resignation simply by applying to open teaching positions like any other applicant, and received “constructive” approval to withdraw his resignation merely by being rehired. By requiring actual notice and actual approval, the Chancellor’s regulation ensures that the future status of a returning teacher is clear to everyone at the outset, and that a teacher is not hired to a new position with full tenure rights unless and until his prior record can be examined. A hiring decision made 4 without this information is no substitute for the pre-hiring procedural safeguards that Springer would have this Court ignore. Springer also attempts to rely on an April 2012 request that he submitted to the BOE in a belated attempt to withdraw his resignation (the “April 2012 request”). The April 2012 request was made six months after Springer had already been hired to a new position, and it was rejected as untimely. Springer did not challenge the rejection decision through the CBA’s mandatory grievance procedure. Nor did he raise any argument concerning his April 2012 request below. As a result, Springer’s newly presented argument about his April 2012 request is both unexhausted and unpreserved. QUESTION PRESENTED Was Springer’s probationary service as a teacher properly discontinued without an administrative hearing, where he failed to comply with the procedure prescribed by the Chancellor’s regulation and the CBA for withdrawing his prior resignation and obtaining full tenure rights in his new position upon his hiring? 5 STATEMENT OF THE CASE A. Hiring Teachers in the New York City Public School System The New York City school district is the largest public school system in the country, with more than 1.1 million students taught by more than 70,000 teachers in approximately 1,800 schools. See generally Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893, 903-04 (2003). Counting teachers alone, the city school district is one of the largest employers in New York City. To best serve the city’s schoolchildren, responsibility for personnel matters is divided between the BOE’s central administration and the principals who manage individual schools. The Chancellor, as the chief executive officer of the city school district, see EDUC. LAW § 2590-h, has the authority to promulgate regulations to administer the public school system, including regulations concerning the employment of teachers, see id. § 2590-h(16).1 School principals, however, retain control over 1 The Chancellor’s regulations form the backbone of the district’s day-to-day administration. They concern a wide range of topics, including everything from the reporting of child abuse to the use of school property for flea markets. 6 hiring teachers for the schools they manage, within the parameters set by the Chancellor’s regulations. Approximately 7,000 to 8,000 teachers are hired each year in the city school district. To serve the diverse needs of the city’s 1,800 schools, hiring occurs within a decentralized, free-market system, subject to the regulations set by the BOE’s central administration. Teachers who want to apply for a job (or to transfer to another position) apply for open positions to individual school principals, not to the BOE’s central administration. This structure empowers a school principal to select teachers who are not only generally qualified, but who are also a good fit for the particular school’s students and needs. While teacher hiring decisions are similar to hiring decisions in other fields, the due process rights that are afforded to tenured public school teachers may affect the BOE’s ability to remove and replace a teacher, even one with serious performance and disciplinary problems. A teacher who has full tenured status can generally only be removed 7 subject to an administrative hearing under Education Law § 3020-a.2 By contrast, when a teacher is serving a probationary term, the teacher does not have a right to an administrative hearing, and, where appropriate, the BOE may discontinue the teacher’s service. See generally Frasier v. Bd. of Educ., 71 N.Y.2d 763, 765 (1988). A probationary teacher’s unsatisfactory rating in a single school year can provide sufficient cause for discontinuing the teacher’s service, allowing the principal to find a more qualified replacement to best serve the school’s needs. B. The Procedure Governing Tenured Teachers Who Resign and Later Seek a New Position This case concerns the rules that apply when a tenured teacher voluntarily resigns his employment and later seeks a new position within the city school district. The rules governing resignations and the “withdrawal of resignations” are found in Chancellor’s regulation C-205. (Record on Appeal [“R.”] 94-96.) 2 Exceptions to this general rule have been established through collective bargaining and regulation. For example, a teacher whose license lapses may be terminated without an administrative hearing. 8 Each year, a number of the 70,000 teachers in the city school district voluntarily resign their employment. The reasons for their resignations are varied. Some teachers simply leave the profession or relocate elsewhere. Others, as in any employment setting, resign due to performance issues or other problems. Whatever the reason, a resignation is a formal step: a resignation, “once submitted” by a teacher, is “final” and terminates the teacher’s service. (R. 95.) A teacher who voluntarily resigns his employment has no right to future employment. Former teachers may, however, apply for new positions. If a school principal is willing to hire a former teacher, the Chancellor’s regulation sets forth the procedure for the “withdrawal” of the teacher’s prior resignation. The withdrawal procedure is essentially a mechanism that allows teachers to retain some of the benefits of their prior service when seeking new positions within the city school district. By withdrawing a resignation, for example, a teacher who was probationary at the time of his resignation can receive credit for prior years of service for purposes of calculating his seniority and eligibility for tenure. 9 Similarly, tenured teachers “remain tenured” even with a break in service. (R. 96.) By withdrawing a prior resignation, a tenured teacher can be hired to a new position with full tenure rights, thus avoiding a probationary term in the new position. Chancellor’s regulation C-205(29) outlines the procedure that a tenured teacher must follow to withdraw a prior resignation and obtain full tenure rights in a new position. (Id.) Timely Written Notice. At the first stage, the teacher must provide clear notice to the BOE that he intends to withdraw his resignation by submitting a “written request” to do so.3 (Id.) The teacher must submit the written request “on or before the opening of school in September” within a five-year 3 To facilitate the written-notice requirement, the BOE created a form that teachers can complete to request the withdrawal of a prior resignation. The four-page form, readily available on the BOE’s website at http://tinyurl.com/ov7yvob, includes a handful of questions relevant to the processing and approval of such requests. A hyperlink to the form is also available on the website for the teachers’ union at http://tinyurl.com/ohtfh8j, where the union advises teachers that the form “must be filled out fully” and “submitted to the [BOE] on or before the first day of school for the reinstatement with tenure to be processed.” 10 window, measured from the effective date of the teacher’s resignation.4 (Id.) Chancellor Approval. At the second stage, the teacher must also obtain “the approval of the Chancellor” and pass a medical examination. (Id.) These written-notice and central-approval requirements are restated in article 5(E)(1) of the CBA between the city school district and the teachers’ union.5 (R. 75.) Like the Chancellor’s regulation, the CBA provides that a teacher must provide the BOE with clear written notice of his desire to withdraw his resignation by submitting an “application for such withdrawal,” the application must be “made on or before the opening of school in September” within a five-year window, and the application is “subject” to “the approval of the Chancellor” and a medical examination. (Id.) 4 A tenured teacher who returns to service beyond the five-year window is required to serve “a two year probationary period.” (R. 96.) 5 The CBA, available in its entirety on the union’s website at http://tinyurl.com/lmp8sq2, was quoted by Springer in his petition and discussed in the briefing and at argument below. (See R. 62, 66, 75; Mem. of Law in Supp. of Resp’ts’ Cross-Mot. to Dismiss the Pet. at 13-14, No. 104080/2012 (N.Y. Sup. Ct. Jan. 15, 2013); Br. for Resp’ts-Resp’ts at 15-16, No. 13156 (1st Dep’t Apr. 14, 2014).) 11 When a tenured teacher who resigned his employment seeks a new position in the city school district, he has the option of either (a) seeking to withdraw his resignation in accordance with the procedure described above and, if successful, securing a new position with full tenure rights upon hiring, or (b) not complying with the prescribed procedure and serving a probationary term in the new position. In other words, for tenured teachers, the practical effect of failing to complete the prescribed procedure for withdrawing a prior resignation is serving a probationary term in the new position. C. The Procedural Safeguards Provided by the Chancellor’s Regulation and the CBA The written-notice and central-approval requirements mandated by the Chancellor’s regulation and the CBA are important to the administration of the city school district. By requiring tenured teachers to submit written requests to withdraw their resignations “on or before the opening” of the school year within a five-year window, the Chancellor’s regulation and the CBA ensure that written requests are made before a teacher is hired into a new teaching position. When a teacher submits a written request to withdraw a resignation, the BOE’s central administration alerts hiring principals 12 that the teacher would have full tenure rights in a new position, and thus would not be subject to a probationary term, if the teacher’s request is approved. The BOE also conveys relevant personnel information that hiring principals may not have access to or be aware of, such as details about the teacher’s prior employment and disciplinary record. Both forms of notification are critical to ensuring that hiring principals can, with the assistance of the BOE, make fully informed and considered hiring decisions. 1. Notice of a Teacher’s Future Status In light of the special tenure rules that apply to public school teachers, it is important for a hiring principal to know an applicant’s future status clearly and upfront. On the one hand, when a principal hires a teacher who will immediately have full tenure rights in a new position, the teacher will generally be subject to removal only upon holding an administrative hearing. On the other hand, when a teacher is hired to a new position subject to a probationary term, the teacher does not have a right to an administrative hearing, and, where appropriate, the BOE may discontinue the teacher’s service. 13 It is critical for a school principal, like any other hiring manager, to know what an employee’s future status will be. While tenured teachers often bring a wealth of experience and knowledge to the table, a principal should know whether a teacher will be hired subject to a probationary term or will instead immediately have full tenure rights in a new position—even if the teacher proves to be an underperformer or a poor fit for the school’s students and needs. The written-notice requirement ensures that the BOE can provide information about a teacher’s status to hiring principals, a function not accomplished by a teacher’s mere application for employment. Not every tenured teacher will seek to withdraw a prior resignation and claim full tenure rights in a new position. Some choose to seek probationary positions in a new license area. (R. 64.) Others may be ineligible to withdraw their resignations due to the lapse of time or other factors. (R. 96.) Still others may be willing to serve a probationary term to make their application for employment more attractive, just like job applicants in any other field. In short, the future status of a teacher is a significant piece of information. But it is the teacher himself who is best situated to inform 14 the BOE whether he intends to withdraw his resignation and claim full tenure rights in a new position. By mandating that the teacher give clear written notice of his intention at the time he seeks a new position, the regulation helps ensure that hiring principals understand the consequences of a hiring decision at the time the decision is made, and before a teacher starts in a new position. 2. Notice of and an Opportunity to Review a Teacher’s Prior Record The regulation’s written-notice requirement also provides a safety net by providing an additional pathway—aside from an applicant’s self- reports—to alert the BOE and hiring principals to potential issues in an applicant’s prior employment and disciplinary record. The regulation guards against the most obvious cases of abuse by creating an absolute bar to the withdrawal of resignations in two categories of cases: when a teacher resigned while formal disciplinary charges were pending and when a teacher resigned due to prolonged absences without notice. (R. 96.) But the regulation sensibly does not attempt to specify all the sundry circumstances in which a teacher’s resignation may have occurred under questionable circumstances, and instead fills that gap by requiring teachers to submit written requests to withdraw their 15 resignations to the BOE and giving the Chancellor the authority to approve, or disapprove, specific requests. Written notice to the BOE is essential because the BOE’s central administration has access to a wide array of personnel information, including the employment and disciplinary history of former teachers, which is not readily at the hands of hiring principals. Frequently, a teacher seeks a new position at one school after having resigned from one of the other 1,800 schools in the city school district. Because individual schools (or networks of schools) maintain their own employment records, a hiring principal often will not know whether a teacher’s resignation from a different school occurred under suspicious or troubling circumstances. For example, a teacher may have several letters to file concerning inappropriate behavior or performance problems, but the relevant employment records would be kept only by the teacher’s former school. When a tenured teacher submits a written request to withdraw his resignation, the BOE’s central administration has the opportunity to review the teacher’s employment and disciplinary history and convey relevant information to a hiring principal. At times, this may be as 16 simple as alerting the principal to the teacher’s prior record and advising the principal to contact the school or schools that previously employed the teacher to secure further information before making a hiring decision. In particularly troubling cases, however, the regulation affords the Chancellor the authority to reject a tenured teacher’s request to withdraw a prior resignation. (R. 96.) The written-notice and central-approval requirements operate together to protect the interests of the BOE, hiring principals, and, most importantly, the over one million children educated in the city school district. Tenured teachers can be hired to new positions with full tenure rights, but only if hiring principals have the opportunity to make fully informed and considered hiring decisions and only if the Chancellor first has an opportunity to monitor for abuse, advancing the best interests of students. D. Springer’s Failure to Withdraw His Resignation in Accordance with the Chancellor’s Regulation and the CBA Springer was a teacher tenured in the catering license area. (R. 72.) In January 2011, however, he voluntarily resigned from his 17 tenured position to “pursue a career opportunity as a private chef.”6 (R. 73.) Several months later, Springer decided to return to teaching. (Id.) In the summer of 2011, he began applying for open teaching positions in the city school district. (Id.) Despite his prior tenure, Springer applied for new positions in the same manner as any other applicant, and he made no attempt to submit a written request to the BOE indicating that he wanted to withdraw his resignation and be hired to a new position with full tenure rights. In October 2011, after the school year had already started, Springer was hired to teach catering at a different high school from where he taught before. (Id.) Although Springer alleges that he informed the school principal that hired him that he had resigned from a tenured position (R. 73-74), he does not allege that he informed the 6 For the purpose of this appeal, respondents credit the non-conclusory factual allegations set forth in Springer’s petition. Had this case proceeded beyond the motion to dismiss stage below, respondents would have exercised their right to file an answer controverting some of Springer’s allegations. See C.P.L.R. § 7804(f) (“If [a] motion [to dismiss] is denied, the court shall permit the respondent to answer.”). In such an answer, respondents also would have raised additional facts, including, for example, the fact that Springer resigned from his tenured position shortly after he was issued a disciplinary letter (one of several he received during his employment) for verbally abusing a student by telling the student to “fuck off.” 18 principal that he would be seeking to withdraw his resignation and be immediately restored to full tenured status. Likewise, Springer does not allege that he was ever told by anyone that he could withdraw his prior resignation or that his new position would not be subject to a probationary term. During the 2011-2012 school year, the principal that hired Springer was replaced by a new principal. (R. 74.) In April 2012, the new principal advised Springer that he did not have tenure.7 (Id.) After seeking the advice of his union, Springer submitted his April 2012 request to the BOE, seeking to withdraw his resignation. (Id.) Springer acknowledges that the April 2012 request was rejected as untimely. (Id.) Though he admits that he was informed that his request “was too late” and “would not be processed” (id.), Springer did not challenge the rejection of his withdrawal request through the mandatory grievance procedure provided by the CBA. (R. 65.) Instead, Springer took no action at all. 7 This alleged communication was made either contemporaneously or close in time with the principal informing Springer that his classroom performance was unsatisfactory and, absent improvement, his probationary service would be discontinued at the end of the school year. 19 In May 2012, Springer received an unsatisfactory performance rating for the 2011-2012 school year. (R. 74.) Springer did not challenge his unsatisfactory rating. The following month, he was informed that his probationary service would be discontinued. (R. 74, 79.) In October 2012, Springer commenced this article 78 proceeding, claiming that he “was a tenured teacher upon his reappointment” despite his failure to submit a timely written request to withdraw his resignation before the start of the 2011-2012 school year. (R. 76.) Springer asserted that the BOE should have treated him as if he had full tenure rights upon being hired to his new position, and thus afforded him an administrative hearing under Education Law § 3020-a before his service was discontinued. (Id.) Supreme Court, New York County (Rakower, J.), granted respondents’ motion to dismiss the petition. (R. 19.) The Appellate Division, First Department, unanimously affirmed. (R. 47-48.) The Appellate Division found that Springer had failed to comply with the procedure prescribed by the Chancellor’s regulation for withdrawing a prior resignation. (R. 47.) The court also concluded that Springer’s “tenure was not ipso facto” restored when he was hired to a new 20 position by a school principal, and rejected Springer’s argument that he was somehow “constructively” restored to full tenured status by virtue of his being hired to a new position. (R. 47-48.) The Appellate Division later granted Springer leave to appeal to this Court, indicating that its decision was made “as a matter of law.” (R. 14.) ARGUMENT On appeal, Springer does not challenge the validity of Chancellor’s regulation C-205(29)—or CBA article 5(E)(1), which he does not mention. To the contrary, Springer presumes the validity of the Chancellor’s regulation, contends that the BOE was compelled to follow it, and claims he is entitled to its benefit in this case. (See App. Br. at 10.) However, as the Appellate Division found, Springer’s own petition allows only one conclusion: “[t]here is no question that [Springer] failed to comply” with the regulation’s requirements of timely written notice and Chancellor approval for the withdrawal of his prior resignation. (R. 47.) Springer nonetheless argues that his noncompliance should be excused for two reasons: (1) his application for employment should be deemed “constructive” notice of his intention to withdraw his prior 21 resignation and be hired to a new position with full tenure rights, and his hiring to that position should be deemed “constructive” approval for the withdrawal; and (2) in the alternative, his post-hiring April 2012 request should be deemed to satisfy the withdrawal procedure’s pre- hiring procedural safeguards. As explained below, neither argument has merit. Springer’s arguments get the Chancellor’s regulation and parallel CBA provision precisely backwards. To be sure, Springer once held a tenured position, with all its attendant rights, but it is well established that a teacher “relinquish[es]” tenure rights in a position by “resigning.” Gould v. Bd. of Educ., 81 N.Y.2d 446, 451 (1993) (citing Girard v. Bd. of Educ., 168 A.D.2d 183, 186 (4th Dep’t 1991)). Springer had no right to be reemployed by the city school district. See Girard, 168 A.D.2d at 184. His after-the-fact theories provide no substitute for the pre-hiring written-notice and central-approval requirements mandated by the Chancellor’s regulation and the CBA. 22 A. Springer’s Theory of “Constructive” Notice and Approval Nullifies the Procedural Safeguards Provided by the Chancellor’s Regulation and the CBA. Springer’s primary argument in this case has always been that his application for a new position and his subsequent hiring to that position somehow served as a surrogate for complying with the pre-hiring written-notice and central-approval requirements mandated by Chancellor regulation C-205(29) and CBA article 5(E)(1). In essence, Springer contends that he provided the BOE with “constructive” notice that he wanted to withdraw his resignation by applying for new teaching positions like any other applicant, and received “constructive” approval to withdraw his resignation by virtue of being hired to fill an open teaching position by an individual school principal. (See Br. on Behalf of Pet’r-App. at 18, No. 13156 (1st Dep’t Feb. 19, 2014).) In his brief to this Court, Springer abandons the “constructive” notice-and- approval terminology, but the thrust of his argument is unchanged. (See App. Br. at 12-13.) Springer’s theory of “constructive” notice and approval does not withstand scrutiny, and fails on both legal and practical grounds. As an initial matter, the theory is fundamentally inconsistent with the terms 23 of the regulation and the CBA. The Chancellor’s regulation and the CBA require a “written request” or “application” if a tenured teacher seeks to withdraw a prior resignation and immediately obtain the benefit of full tenure rights in a new position—language that unambiguously requires a teacher like Springer to provide actual, not constructive, notice to the BOE that he seeks to withdraw his resignation. (R. 75, 96.) Likewise, the Chancellor’s regulation and the CBA both clearly require a teacher to receive actual, not constructive, “approval” from the Chancellor to withdraw his resignation. (Id.) Springer seizes on the language in the Chancellor’s regulation that states that a teacher who holds a tenured teaching position before his resignation shall “remain tenured and . . . be permitted to withdraw such resignation.” (R. 96.) But this language cannot be read to guarantee teachers full tenure rights immediately upon being hired to a new position and the right to avoid any probationary term, no matter what the circumstances. The regulation elsewhere provides, for example, that tenured teachers must serve “a two year probationary period” if withdrawal is sought after the five-year window specified in the regulation and the CBA (id.), a restriction that Springer does not 24 contest. More to the point, Springer cannot focus on the “remain tenured” phrase to the exclusion of the rest of the regulation, which clearly requires teachers to submit a “written request” informing the BOE of their intent to withdraw a prior resignation, and which make all written requests “subject” to “the approval of the Chancellor.” (Id.) Springer’s contention that applying for open positions and being hired to fill a new position is sufficient to satisfy the requirements for withdrawal renders a broad swath (if not all) of the Chancellor’s regulation and the CBA meaningless by excising their core written- notice and central-approval framework and substituting in its place scattered application and hiring decisions. The regulation and the CBA place the burden on individual teachers to be aware of their employment status and to provide actual, written notice to the BOE if they intend to seek the benefit of full tenure rights in the event they secure a new position. This is a rational allocation of responsibilities, and hardly surprisingly given the sheer number of teachers in the city school district hired every year and the complexities involved in each individual teacher’s personnel history. 25 As Springer’s own petition confirms, applicants and hiring principals may be mistaken or disagree about a teacher’s future status. And as Springer conceded below, not every previously tenured teacher will seek to be immediately restored to full tenured status in a new position. (R. 64.) By placing the burden on teachers to provide affirmative, written notice of their intention, the process prescribed by the regulation and the CBA ensures that all parties understand what the teacher is seeking. True, in some narrow legal contexts, constructive notice may arise “by presumption of law from the existence of facts that a party had a duty to take notice of.” BLACK’S LAW DICTIONARY 1090 (8th ed. 2004) (emphasis added). But such a presumption rests on the premise that a party has a legal duty to investigate and take notice of particular facts, as for example, a person taking title to real property is presumed to know about any interest recorded in the chain of title because he has a legal duty to investigate the chain of title. See Andy Assocs., Inc. v. Bankers Trust Co., 49 N.Y.2d 13, 23-24 (1979). Likewise, constructive approval may arise by presumption of law based on a party’s failure to act in the face of a legal duty to do so, as for example, when a planning 26 board is deemed to have constructively approved a land-use application when it fails to discharge its statutorily prescribed duty to resolve the application within a designated period. See Krafchuk v. Planning Bd. of Ipswich, 903 N.E.2d 576, 585 (Mass. 2009). But where both the Chancellor’s regulation and the CBA expressly provide that a teacher must provide written notice of his request to withdraw his resignation, and obtain the Chancellor’s approval of that request, Springer’s theory of constructive notice, however framed, cannot excuse his own unexplained failure to follow the procedure that is so clearly prescribed. And, in any event, the foundational premise for constructive notice and approval—an unequivocal legal duty to act—is completely absent when it comes to the withdrawal of teacher resignations. Springer does not claim that the BOE has a duty to investigate a teacher’s subjective desire to withdraw a prior resignation and thus be hired to a new position with full tenure rights (to the extent such an investigation would even be possible). To the contrary, under the Chancellor’s regulation and the CBA, it was Springer who had the duty to submit a written request and affirmatively inform the BOE of his desire to withdraw his resignation. And in the absence of such 27 written notice, there was nothing for the BOE to approve, or disapprove, at the time Springer was hired. Springer’s “constructive” notice-and-approval theory also ignores the function of the written-notice and central-approval requirements, which are designed to ensure that hiring principals and the BOE can make informed judgments about the practical result that a teacher in Springer’s position seeks. By failing to follow the required procedure, Springer failed to make clear from the outset that he was seeking to be hired to a new position with full tenure rights, without serving a probationary term. Springer thus deprived the hiring principal from making, with the assistance of the BOE, a fully informed and considered hiring decision. It makes no sense to treat a hiring decision—made without full information because of Springer’s failure to comply with the prescribed process—as a legal excuse for his noncompliance with the plain terms of the regulation and the CBA. When a former teacher submits a written request to withdraw his resignation, the BOE has the opportunity to convey relevant personnel information to school principals considering hiring the teacher. This communication benefits both the teacher and the school: the school has 28 the opportunity to make an informed and considered decision before hiring a teacher who will have full tenure rights upon hiring; and the teacher receives the assurance that, if he is hired to a new position, he will obtain the benefit of the Chancellor’s regulation and be treated accordingly. The process promotes clarity about a teacher’s status and avoids the very type of litigation, like this one, arising from disputes over a teacher’s rights. The regulation and the CBA do not govern tenure in the abstract. Rather, they provide a practical solution to a specific situation: when a previously tenured teacher voluntarily resigns his employment and later seeks to be hired to a new position with full tenure rights. In this context, the relevant question for the city school district and the city’s schoolchildren is not some abstract question about a teacher’s tenure, but instead whether the teacher is in fact the best candidate for the jobs he applies for. The Chancellor’s withdrawal regulation, in addition to benefitting teachers, is also intended to preserve the integrity of that threshold hiring decision, both by ensuring that a school principal is made aware of the teacher’s record and whether the teacher is seeking to be hired with full tenure rights, and by ensuring that the Chancellor 29 is afforded the opportunity to consider whether the teacher should be permitted to withdraw the earlier resignation, after full consideration of the question. Here, Springer is concerned only about retaining his teaching position. His “constructive” notice-and-approval argument ignores how he got to that position in the first place. Springer’s petition does not mention the circumstances of his resignation, nor does he claim that his prior disciplinary and performance record were fully disclosed to the principal who hired him to a new position. Had Springer submitted a request to withdraw his resignation, the BOE would have had an opportunity to inform the hiring principal that Springer received multiple disciplinary letters during his employment, including one shortly before his resignation, when he was issued a warning for verbally abusing a student. Whatever information Springer individually conveyed or failed to convey to the hiring principal, the BOE would have had the ability to independently verify that the hiring principal was aware of potentially relevant information, and to make sure that the principal understood that Springer was seeking to be hired without any probationary term. 30 Springer’s invocation of constructive notice-and-approval concepts in this context is deeply flawed. His own failure to submit a written withdrawal request deprived the hiring principal and the BOE of the opportunity to consider key information material to his rehiring, the event that makes the consideration of his tenure status relevant in the first place. Springer should not be allowed to pick and choose— disclaiming the burdens of complying with the Chancellor’s regulation and the CBA while claiming their benefit. Constructive notice-and-approval rules are efforts to recognize what should have occurred had clear legal duties been satisfied, but that simple retrospective analysis is impossible in the hiring context. School principals are entrusted to make discretionary hiring judgments and select the best candidates for their schools and students. Without actual notice of a teacher’s status and the opportunity to evaluate the teacher’s prior record—safeguards the Chancellor’s regulation and the CBA ensure—principals cannot fulfill that function. Likewise, the Chancellor’s regulation and the CBA give the BOE meaningful discretion—discretion that a constructive notice-and- approval theory would nullify. The BOE has no legal obligation to 31 approve requests to withdraw resignations, the type of bright-line legal duty that might arguably support a constructive approval legal theory. As Springer conceded below, the Chancellor’s regulation and the CBA instead afford the BOE’s central administration the “discretion” and “opportunity” to review, and in some instances deny, requests by teachers seeking to withdraw their resignations. (R. 63.) Springer’s proffered theory—which assumes that a teacher can withdraw a resignation and be hired to a new position with full tenured status without the Chancellor’s approval—would deny the BOE’s central administration the opportunity to exercise its discretion before a teacher is hired to a new position with full tenure rights, defeating one of the principal reasons for the regulation’s existence. Accepting Springer’s invitation to effectively rewrite the Chancellor’s regulation and the CBA by excising their written-notice and central-approval requirements is also particularly troubling for two additional reasons. These requirements are a negotiated term of the CBA. Like the Chancellor’s regulation, the CBA does not provide that a teacher will automatically be restored to full tenured status upon being hired to a new position. (R. 75.) If teachers desire such an automatic 32 mechanism, they are of course free to bargain for it, but they cannot obtain in litigation what they have not secured in negotiations. Constructive notice-and-approval concepts also conflict with the orderly administration of large and complicated public schemes, like the successful operation of the city school district. The written-notice and central-approval requirements constitute two parts of a rule of general application, and they govern not just this single case, but rather apply across the board to the tens of thousands of teachers working in the city school district. These requirements do not impose an onerous obstacle to teachers who resign from their positions and later seek to be hired to new positions with full tenured status, and Springer’s isolated case does not suggest there is a need for a judicially crafted doctrine allowing teachers to skirt this process. As explained above, the ultimate beneficiaries of adherence to the Chancellor’s regulation and the CBA are the children educated in the district’s schools. Mandating timely written notice and Chancellor approval ensures that hiring decisions are made on an informed basis and that the best candidates are selected to teach in our public schools. 33 B. Springer’s New Argument Based on His April 2012 Request Is Unpreserved and Unexhausted. Springer also argues that his April 2012 request qualifies as written notice of his intention to withdraw his resignation. (See App. Br. at 13, 15.) But Springer’s alternative argument suffers from the same conceptual flaw as his constructive notice-and-approval theory: because his April 2012 request was made six months after he had already been hired, that belated request also failed to provide meaningful notice to inform the process surrounding his hiring. Springer’s argument about his April 2012 request also fails for two additional reasons: it is both unpreserved and unexhausted. First, Springer failed to preserve any argument concerning the April 2012 request for this Court’s review. He disclaimed any such argument before Supreme Court, telling the court that “[r]espondents incorrectly assert[ed] that the basis for [his] claim is the fact that [the BOE] did not accept an April 2012 application to withdraw his resignation.” (Mem. of Law in Opp’n to Resp’ts’ Cross-Mot. to Dismiss the Pet. at 2, No. 104080/2012 (N.Y. Sup. Ct. Jan. 25, 2013); see also R. 57-58.) Springer also failed to raise any argument based on the April 2012 request in his merits brief to the Appellate Division. (See Br. on 34 Behalf of Pet’r-App. at 13-23, No. 13156 (1st Dep’t Feb. 19, 2014).) Springer cannot now raise an argument that he did not present, and indeed affirmatively disclaimed, in the courts below. See McGovern v. Mount Pleasant Cent. Sch. Dist., 25 N.Y.3d 1051, 1053 (2015). Second, Springer failed to avail himself of the CBA’s mandatory grievance procedure in connection with his April 2012 request. Springer concedes that he was informed that his request had been rejected. (R. 74.) If he disagreed with that decision, he was obligated to pursue his disagreement through the agreed-upon grievance procedure set forth in the CBA, a process that culminates in binding arbitration by a neutral decision-maker subject only to limited judicial review under C.P.L.R. article 75. Springer does not dispute that his newly stated disagreement with the rejection of his April 2012 request falls within the grievance procedure set forth in the CBA.8 Springer also does not dispute that he 8 CBA article 22(A) requires an employee to file a grievance concerning an alleged violation or misapplication of (1) “any of the [CBA’s] provisions,” such as CBA article 5(E)(1), or (2) a “policy or practice governing or affecting employees,” such as Chancellor’s regulation C-205(29). Indeed, complaints similar to the one raised by Springer in this case have been resolved through the CBA’s grievance procedure, as evidenced by an arbitration decision annexed to Springer’s petition. (R. 99-115.) 35 elected not to pursue a grievance with respect to his April 2012 request (R. 65), and instead took no action at all until he commenced this proceeding under C.P.L.R. article 78. An employee who fails to participate in and exhaust a mandatory grievance procedure is ordinarily precluded from seeking relief in court. Plummer v. Klepak, 48 N.Y.2d 486, 489 (1979). This is because public policy strongly favors internal grievance procedures, which allow for the efficient protection of employee rights, enable unions to participate in the resolution of disputes, and aid employers by channeling grievances into a single forum. Bd. of Educ. v. Ambach, 70 N.Y.2d 501, 509 (1987); see also CIV. SERV. LAW § 200(c). Permitting an individual employee to circumvent an agreed-upon grievance procedure, even if well- intentioned, impairs these systemic interests, undermines the grievance procedure as the exclusive means for settling disputes, disrupts the negotiation and administration of collective bargaining agreements, and, in the end, weakens the protections the grievance procedure affords employees. See Ambach, 70 N.Y.2d at 509. In an attempt to avoid the CBA, Springer invokes various exceptions to the doctrine requiring the exhaustion of administrative 36 remedies (see App. Br. at 17-19), but none excuse him from exhausting the CBA’s grievance procedure. True, a party need not exhaust its administrative remedies when resort to those remedies would be futile or result in irreparable harm, or when the agency’s action was unconstitutional or wholly beyond its power. Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 (1978). Although Springer assumes that these same exceptions apply to exhaustion of mandatory grievance procedures, he cites to no authority supporting that assumption, nor does he explain why extension of the same principles to the exhaustion of grievance procedures makes sense. Likewise, Springer does not claim that his union denied him fair representation, see Ambach, 70 N.Y.2d at 508, making that recognized exception to the exhaustion of mandatory grievance procedures irrelevant. Springer also posits that he was not required to exhaust the CBA’s grievance procedure because he was tenured and thus had a “due process” right to a hearing before his service could be discontinued. (See App. Br. at 17-18.) But Springer conflates two separate events: the rejection of his April 2012 request and the discontinuance of his service without a hearing. A teacher who has full tenure rights generally has a 37 constitutional right to a hearing prior to the discontinuance of service, but a teacher does not have a constitutional right to withdraw a resignation. The source of a teacher’s entitlement to withdraw a resignation, if any, has its origins in the Chancellor’s regulation and the CBA, not the requirements of due process. And in any case, to the extent Springer wanted to contest the rejection of his April 2012 request, the grievance procedure would have afforded him all the process he was due. See Coollick v. Hughes, 699 F.3d 211, 220 (2d Cir. 2012) (observing that a bargained-for grievance procedure may satisfy the requirements of due process).9 Springer is also misguided in arguing that, if respondents are correct that his status was probationary, then his use of the CBA’s grievance procedure was optional under this Court’s decision in Kahn v. New York City Department of Education, 18 N.Y.3d 457 (2012). (See App. Br. at 18-19.) If Springer’s status was probationary at the time his 9 Springer’s unexplained assertion that he would have suffered “irreparable harm” had he satisfied the CBA’s grievance procedure rests on the same faulty understanding about the requirements of due process. (See App. Br. at 18.) In addition, Springer fails to acknowledge that, if he believed himself at risk of suffering irreparable harm, he could have applied to Supreme Court for interim relief in aid of a pending or anticipated arbitration conducted at the final step of the grievance process. See C.P.L.R. § 7502(c). 38 service was discontinued, then his entire petition in this case—which rests on the opposite premise—is without merit. Regardless, whereas the CBA that applied in Kahn offered probationary employees an “optional” internal review process to challenge the discontinuance of their service, 18 N.Y.3d at 472, if Springer wanted to challenge the rejection of his April 2012 request, as opposed to the discontinuance of his service, the CBA’s grievance procedure was mandatory, not optional. 39 CONCLUSION For the reasons stated above, the order of the Appellate Division, First Department, should be affirmed. Dated: New York, New York August 6, 2015 RICHARD DEARING CECELIA CHANG DEVIN SLACK of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondents By: __________________________ DEVIN SLACK Assistant Corporation Counsel 100 Church Street New York, New York 10007 212-356-0817 dslack@law.nyc.gov