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.

Brief

N.Y.February 17, 2016

To Be Argued By: Maria Elena Gonzalez Time Requested: 10 Minutes APL-2015-00085 Appellate Division First Department Docket No. 13156 Supreme Court, New York County, Index No. 104080/2012 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of GRANT SPRINGER, Petitioner-Appellant, - 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, For a Judgment Pursuant to Article 78 of the New York Civil Practice Laws and Rules. REPLY BRIEF ON BEHALF OF PETITIONER-APPELLANT RICHARD E. CASAGRANDE Attorneyfor Petitioner-Appellant 52 Broadway, 9th Floor . New York, New York 10004 (212) 533-6300 OfCounsel: Maria Elena Gonzalez Michael J. Del Piano Brief Completed: September 28, 2015 (Printed [Reproduced] on Recycled Paper) TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT ............................................................................ 1 QUESTION PRESENTED .................................................................................... 4 STATEMENT OF FACTS .................................................................................... 5 ARGUMENT ......................................................................................................... 9 POINT I APPELLANT IS A TENURED TEACHER PURSUANT TO C 205(29) BECAUSE HE RESIGNED IN GOOD FAITH, WITHDREW HIS RESIGNATION AND WAS REINSTATED WITHIN FIVE YEARS OF RESIGNATION ............................................. 9 POINT THERE IS NO EVIDENCE IN THE RECORD THAT II RESPONDENTS APPOINTED APPELLANT TO A NEW PROBATIONARY TERM .......................................................................... 15 POINT III APPELLANT WAS NOT REQURED TO EXHAUST ADMINISTRATIVE REMEDIES BECAUSE THE INSTANT MATTER IS A QUESTION OF LAW AND THE AGENCY ACTION WAS UNCONSITUTIONAL. .................................................... 19 CONCLUSION ...................................................................................................... 21 PRINTING SPECIFICATION STATEMENT ...................................................... 22 1 TABLE OF AUTHORITIES PAGE Cases Abramovich v. Bd. ofEduc. ofCent. Sch. Dist. No.1 ofTowns ofBrookhaven and Smithtown, 46 N.Y.2d 450,414 N.Y.S.2d 109 (1979) ......................... 13,15 Apex Air Freight, Inc. v. 0 'Cleireacain, 210 A.D.2d 7, 619 N.Y.S.2d 38 (1st Dept. 1994) .............................................. 19 Coleman v. Daines, 79 A.D.3d 554, 560, 913 N.Y.S.2d 83, 89 (1st Dept. 2010) ............................... 19 DeVito v. Dep't ofEduc. ofthe City ofNew York, 112 A.D.3d 421, 975 N.Y.S.2d 672 (1 st Dept. 2013) .......................................... 11 Folta v. Sobel, 210 A.D.2d 857, 621 N.Y.S.2d 136 (3d Dept. 1994) .......................................... 10 Gilman v. New York State Div. ofHous. 8 Comty. Renewal, 99 N.Y.2d 144,151,782 N.E.2d 1137 (2002) .................................................... 19 Gould v. Bd. ofEduc. ofSewenhaka Cent. Sch. Dist., 81 N.Y.2d 446, 599 N.Y.S.2d 787 (1993) .............................................. 13, 15,20 Kahn v. New York City Dep 't ofEduc., 18 N.Y.3d 457, 940 N.Y.S.2d 540 (2012) .......................................................... 20 Matter ofLehman v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, 82 A.D.2d 832, 439 N.Y.S.2d 670 (2d Dept. 1981) ........................................... 19 Matter ofNassau BOCES Cent. Council ofTeachers v. BOCES ofNassau County, 63 N.Y.2d 100, 102, 480 N.Y.S.2d 190 (1984) .................................................. 18 Vaccaro v. Bd. ofEduc. ofthe City Sch. Dist. ofthe City ofNew York, 39 Misc.3d 1241(A), 975 N.Y.S.2d 370 (Sup. Ct. New York County 2013) .... 13 11 Statutes CPLR Article 78 ........................................................................................................ 2 Education Law § 2573 ............................................................................................ 15 Education Law § 3020-a .................................................................................. passim New York City Chancellor's Regulations C-205(1) .................................................................................................................. 12 C-205(6) .................................................................................................................. 12 C-205(24) ................................................................................................................ 12 C-205(26) ................................................................................................................ 12 C-205(28) ............................................................................................................ 2, 15 C-205(29) ......................................................................................................... passim III PRELIMINARY STATEMENT Petitioner-Appellant Grant Springer ("Appellant") submits this Reply Brief in opposition to the Brief for Respondents-Respondents Board of Education of the City School District of the City ofNew York ("Board") and Dennis M. Walcott, in his official capacity as Chancellor of the City School District of the City of New York (collectively referred to as "Respondents" and document referred to as "Respondents' Brief') and in further support of the Brief on Behalf of Petitioner Appellant ("Appellant's Brief') filed with the Court of Appeals on June 8, 2015. Appellant specifically objects to the majority of the factual assertions set forth in Respondents' Brief, which were (1) outside of the record; (2) immaterial to the limited issue before the Court; (3) do not comport with the facts in the record; and (4) inserted solely to confuse the Court and/or inflame the Court's opinion of Appellant. Tellingly, Respondents failed to mention the salient "facts" of the instant matter until page 16 of their Brief. Moreover, Respondents' Statement of the Case is almost purely argument. Appellant further objects to Respondents' gross mischaracterizations of Appellant's legal positions throughout Respondents' Brief. Appellant respectfully refers the Court to Appellant's Brief for his factual and legal assertions, as supplemented herein. 1 As discussed more fully below, there is only one legal question at issue here: was Appellant tenured when Respondents re-hired him. Consistent with the plain language of Chancellor's Regulation C-205(29)1, the Court should resolve that question in favor of Appellant. Appellant, a tenured teacher, brought this proceeding pursuant to Article 78 of the against Respondents. Appellant sought a judgment declaring that Respondents failed to perform a duty enjoined upon them by law, acted in bad faith, violated lawful procedure, were arbitrary and capricious, and abused their discretion by failing to recognize Appellant's tenure rights, in violation of New York City Chancellor's Regulations C-205(28) and (29), and by subsequently terminating Appellant's employment without due process, in violation of Education Law § 3020-a. Appellant further sought an order directing Respondents to reinstate Appellant to his former position, and to pay him all salary, benefits, and other emoluments of employment to which he would have been entitled had Respondents complied with the law. Respondents filed a cross-motion to dismiss the Article 78 petition for failure to state a claim upon which relief can be granted. After oral argument, the Honorable Eileen Rakower granted Respondents' cross-motion and denied the I All references to the Chancellor's Regulations will appear as C-205U unless otherwise stated. 2 petition on the record for "reasons stated therein" and for "failure to exhaust administrative remedies." Appellant appealed Justice Rakower's decision to the Appellate Division, First Department ("Appellate Division"). After oral argument, the Appellate Division issued a decision and order ("Decision"), which unanimously affirmed the lower court's decision holding that Appellant did not have tenure. On November 7, 2014, Appellant made a motion to the Appellate Division for re-argument or, in the alternative, for leave to appeal to the Court of Appeals. The Appellate Division granted Appellant's motion, in part, for leave to appeal to the Court of Appeals, and denied Appellant's motion, in part, by denying reargument. The Appellate Division certified the following question of law to be reviewed by the Court of Appeals: Was the order of this Court, which unanimously affirmed the order of Supreme Court, properly made?*** 3 QUESTION PRESENTED 1. Did the Appellate Division err in its application of C-205(29) and, if so, is Appellant a tenured teacher entitled to a due process hearing pursuant to Education Law § 3020-a prior to termination? The Appellate Division held that Appellant was not a tenured teacher and that Respondents did not act in an arbitrary and capricious manner when they terminated his employment without a hearing pursuant to Education Law § 3020-a. 4 STATEMENT OF FACTS Appellant will rely upon the recitation of facts set forth in Appellant's Brief, as supplemented herein. The facts of this case may be summarized as follows: (1) Appellant was a tenured teacher in the Catering tenure area employed by Respondent Board from September 2001 through January 2011, when he resigned in good standing to pursue a career as a corporate chef. Record on Appeal at 73.2 (2) Appellant applied in writing to return to his position with Respondent Board to a number of positions since at least May 2011. R.73. (3) Respondents re-hired Appellant, first as a substitute teacher in May 2011, and later to a full time position in the Catering tenure area. R.73. (4) Respondents re-hired Appellant under his prior tenure area, license and file number, and salary step as he had prior to his resignation. R.73. (5) Respondents terminated Appellant without a due process hearing required for tenured teachers. R.74-75. In their Brief, Respondents assert numerous facts that have no basis whatsoever in the Record and are immaterial to the legal question at issue in this appeal. Beginning with the Preliminary Statement, Respondents falsely assert that Appellant was re-hired subject to a one year probationary term. Respondents' 2 Citations to the Record on Appeal will appear as R._. 5 Brief at p. 1. As will be discussed more fully in Point II, infra, this assertion has no support in the Record or in the applicable laws and regulations. Plainly, there is no such thing as an automatic one year probationary period when teachers are hired in New York City, or anywhere else in the New York State for that matter. Respondents continued to make assertions of facts outside the record throughout their Brief. A. Respondents' General Assertions about Hiring Respondents' systemic procedures for hiring teachers were never brought up at any stage of the litigation below. Nor were, the number of applicants for employment; number of students, number of schools, or who makes hiring decisions (principals or Respondents' Human Resources Department). None of those "facts" now raised by Respondents are material to this appeal. The material fact is that Appellant was re-hired, regardless of who mayor may not have reviewed his written applications. B. Respondents' Assertions about Withdrawal of Resignations Respondents similarly inserted numerous allegations unsupported by the record, with respect to the withdrawal of resignations. Despite Respondents' attempts to assert that there is a complex procedure to withdraw resignations, such a procedure does not actually exist in C-205(29). 6 Respondents continue to cite to the collective bargaining agreement between the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO and Respondent Board ("CBA"), however, the CBA is not in the record. Respondents had ample opportunity to include the CBA in the Record and declined to do so. The instant matter is not to challenge a provision of the CBA. Rather, the instant matter challenges Respondents' arbitrary and capricious conduct In terminating Appellant in violation of his constitutional and statutory rights. Strangely enough, however, Respondents concede that teachers do remain tenured even with a break in service. Respondents' Brief at p.9. C. Respondents Assertions Regarding Procedural Safeguards Provided by the Chancellor's Regulation and the CBA To whatever extent there are any "procedural safeguards" in C-205(29) and the CBA, the majority of Respondents' assertions related to such "procedural safeguards" are not found in any of the documents in the record and are immaterial to the question of the instant matter. Respondents' assertions in this portion of their Statement of the Case are, again, purely argument. D. Respondents' Assertions Regarding Appellant's Prior Work History Respondents' assertions regarding Appellant's pnor work history are particularly appalling. This is the first instance that Respondents have ever raised any issue with Appellant's prior work history. Respondents never instituted 7 disciplinary charges against Appellant, for any reason. R.73. Appellant received only "Satisfactory" ratings on every Annual Professional Performance Review from 2001-2011. R.73. Respondents' thinly veiled attempt to inflame the Court's opinion about Appellant for the first time at this stage of the litigation underscores the arbitrary and capricious nature of their conduct. As will be discussed more fully In Part I, below, such assertions are immaterial to the issue in this appeal. In any event, Appellant was re-hired and, therefore, he is tenured pursuant to C-205(29) and cannot be terminated without a hearing pursuant to Education Law § 3020-a. 8 ARGUMENT POINT I APPELLANT IS A TENURED TEACHER PURSUANT TO C-205(29) BECAUSE HE RESIGNED IN GOOD STANDING, WITHDREW HIS RESIGNATION AND WAS REINSTATED WITHIN FIVE YEARS OF RESIGNATION Appellant is a tenured teacher pursuant to C-205(29), as he falls within the narrow constructs of the Chancellor's Regulation. Except for a four month break in service during 20 11, Appellant was employed by Respondent Board as a tenured teacher since 2001 until he was terminated without a due process hearing on June 18,2012. R.74, 79. It is undisputed that Appellant attained tenure in the Catering tenure area in March 2008 and provided Respondents sufficient notice prior to his brief resignation between January 18, 2011 and May 2011. R.73, 120 Therefore, Appellant falls squarely within the express provisions of C-205(29). R.96. Notwithstanding Respondents' completely unsupported allegation of verbal abuse against Appellant, which was raised for the first time in Respondents' Brief, Appellant has never been the subject of any formal disciplinary charges in his career. The record is clear that Appellant was a teacher in good standing who had attained tenure prior to his resignation and Respondents never suggested otherwise until this late stage of litigation. R.l18-121. Moreover, even if Respondents' assertion were true, it is immaterial to the Court's analysis of Appellant's tenure 9 status under C-205(29) because Respondents never brought Education Law § 3020-a charges against him for any such incident. C-205(29) unequivocally states that teachers like Appellant, who attain tenure and then resign with sufficient notice and without Education Law 3020-a charges pending, remain tenured. Such teachers, upon written request, are permitted to withdraw their resignation subject only to a medical examination and approval of the Chancellor, provided that the teacher is reinstated by September next following five years from the teacher's resignation date. (R. 96). Again, the sole requirements to remain tenured under C-205(29) is that the resignation did not occur with Education Law § 3020-a charges pending, or without the teacher providing timely notice of the resignation. Thus, whether Appellant was tenured and whether he withdrew his resignation, are completely separate inquiries. Under the plain language ofC-205(29), Appellant remained tenured. Courts have consistently held that for teachers in New York City a resignation does not foreclose a tenured teacher's rights under Education Law § 3020-a because the Chancellor's Regulations explicitly permit a teacher to revoke a resignation. See Folta v. Sobel, 210 A.D.2d 857, 621 N.Y.S.2d 136 (3d Dept. 1994). In Folta, the Appellate Division, Third Department, noting the dual purpose of Education Law § 3020-a to protect tenured teachers from official and bureaucratic caprice and as a means of assessing a teacher's fitness, held that the 10 Respondent Board could continue an Education Law § 3020-a proceeding against a teacher who resigned prior to the completion of said hearing because pursuant to the Chancellor's Regulations Mr. Folta's resignation was not irrevocable. See also DeVito v. Dep't ofEduc. of the City ofNew York, 112 A.D.3d 421, 975 N.Y.S.2d 672 (l st Dept. 2013). Because Appellant falls within the narrow constructs of C-205(29), he was permitted to withdraw his resignation, and, as long as he was reinstated within five years, he remained tenured. The manner in which teachers provide their written request to withdraw their resignation is unspecified in C-205(29), and no designation of any form is set forth in the Regulation. R.96. Moreover, C-205(29) only requires that the reinstatement occur by September following five years after the resignation, not that reinstatement is only effective if it occurs before September in any school year within five years. Appellant has never argued that Respondents were required to reinstate him. To the contrary, Respondents are within their rights to decline reinstatement, as reinstatement is subject to a medical exam and approval by the Chancellor. If Respondents fail to exercise their right to decline reinstatement, and re-hire the teacher, they have waived their rights under C-205(29). Moreover, C-205(29) does not pursuant to its terms, require actual written approval from the Chancellor reinstatement to be effectuated. 11 C-205(29) and the accompanymg Chancellor's Regulations regarding resignations, and their subsequent withdrawal, specifically consider when and in what circumstances express written approval from the Chancellor for withdrawal is required. See C-205(24) (teachers who resign or retire while Education Law § 3020-a charges are pending) and (26)(b) (teachers who are absent without notice for twenty or more consecutive days). Appellant is not a teacher within the categories described in C-205 (24) and (26)(b). Express written approval from the Chancellor was, therefore, not a pre-requisite to Appellant's reinstatement as inaccurately implied in Respondents' Brief. Furthermore, Respondents actually re hired Appellant and the Chancellor approved Appellant's license. See C-205(l) and (6). R.83, 85. See also Appellant's Brief at p. 13. Any argument that Appellant's re-hiring was not approved by the Chancellor does not comport with the facts of this matter and/or must be considered waived. In this case, in May 2011, Respondents reinstated Appellant as a substitute teacher in the identical tenure area (Catering) from which he had resigned four months earlier on January 18, 2011. Thereafter, Appellant submitted numerous applications in writing for full time permanent positions in the Catering tenure area using the same file number, license area, and salary he had when he resigned as a tenured teacher in January 2011. R.119-120. Respondents eventually acted on Appellant's applications and re-hired him in October 2011 to a full time teaching 12 position in the identical tenure area (Catering), file and license number, and at the same salary he had when he resigned with tenure in January 2011. R. 119. Respondents, by reinstating Appellant under the same tenure area, license and file number, and salary as he had when he resigned, accepted withdrawal of Appellant's resignation. Respondents clearly had knowledge of Appellant and his prior work history. It is improper for the Respondents to insinuate that Appellant duped them into re-hiring him, for the first time on Appeal, such insinuation is unsupported by the record and should be given no credence at all. Respondents' assertion that Appellant waived his tenure rights by failing to submit a separate request on a (non-required) form to withdraw his resignation prior to when he was re-hired should be rejected. Nothing in the Education Law or any Chancellor's Regulations provides that a tenured teacher waives tenure rights by failing to fill out a form. Because Appellant remained tenured pursuant to C 205(29), he was the only person who could relinquish his tenure rights. See Abramovich v. Bd. ofEduc. ofCent. Sch. Dist. No. 1 of Towns ofBrookhaven and Smithtown, 46 N.Y.2d 450, 414 N.Y.S.2d 109 (1979); Gould v. Bd. of Educ. of Sewanhaka Cent. High Sch. Dist., 81 N.Y.2d 446, 599 N.Y.S.2d 787 (1993). (Such a waiver must be knowing, and intentional, and unequivocal.) As Justice Mendez so aptly reasoned in Vaccaro v. Bd. ofEduc. ofthe City Sch. Dist. of the City ofNew York, 39 Misc.3d 124I(A), 975 N.Y.S.2d 370 (Sup. 13 Ct., New York County), a separate decision involving the same issue as the instant matter with another similarly situated teacher, "[r]espondent's argument that [p]etitioner had to actually apply to withdraw his resignation even though Petitioner had already been re-hired by Respondent is Kafkaesque." Id. R.34. Justice Mendez further stated "[h]owever bizarre [r]espondent's argument regarding [p]etitioner's withdrawal of resignation may be, it is inconsequential to the issue of [p]etitioner's status as a tenured teacher as [C-205(29)] clearly states that tenured status is retained after resignation." Id. R.34. Respondents' argument in the instant matter is similarly Kafkaesque, and without merit. 14 POINT II THERE IS NO EVIDENCE IN THE RECORD THAT RESPONDENTS APPOINTED APPELLANT TO A NEW PROBATIONARY TERM Respondents' assertion in their Brief that Appellant was re-hired subject to a one year probationary position is baseless. First, there is no such thing as an automatic one year probationary period under the Education Law or the Chancellor's Regulations. During the relevant time period, the probationary period for teachers hired in New York City who previously attained tenure in a different school district was two years. See Education Law § 2573. For teachers who previously attained tenure in New York City that were reinstated more than five years after their resignation, the probationary period was two years. See C-205(29). R.96. For teachers who never attained tenure anywhere, the minimum probationary period was three years. See Education Law § 2573. See also C-205(28). R.96. Second, the record is void of any evidence that Respondent appointed Appellant to, and that Appellant accepted, a probationary appointment in the Catering tenure area. Appellant would have had to provide a knowing and voluntary relinquishment of his tenure rights. See Abramovich, 46 N.Y.2d at 450; Gould, 81 N.Y.2d at 446. Respondents had ample opportunity to include proof of such waiver of tenure rights by Appellant and failed to do so. See Reply 15 Affirmation in Further Support of Respondents' Cross-Motion to Dismiss. R.126 132. If such a document existed, which is does not, it certainly would have been included in Respondents' motion papers below, since it would have been dispositive of the instant matter. Plainly, Respondents fashioned the one year probationary appointment out ofwhole cloth. In case there was any doubt that Respondents' assertion of a one year probationary appointment is of recent vintage, their own prior sworn statements refute any such doubt. See Reply Affirmation in Further Support of Respondents' Cross-Motion to Dismiss, at ~ 14, Thus petitioner was appointed on October 24, 2011 subject to a two year probationary period. See Exhibit B, Chancellor's Regulation C-205(29) ("If reinstatement is made after this date [i.e., on or before the opening of school in September'] a two year probationary period will be required. R.I29 . (emphasis in original). Respondents have not set forth any evidence to indicate that Appellant was re-hired subject to a one year probationary position. Respondents never produced an appointment letter, or any official record of Respondent's appointment designation. Respondent never presented an affidavit from Principal Herma Hall, who hired Appellant in October 2011, as evidence that she re-hired Appellant as a probationary instead of tenured employee and that Appellant accepted such a probationary appointment. R.l26-132. 16 In the proceedings below, Respondents argued in their Affinnation in Further Support of Respondents' Cross-Motion to Dismiss that a resigned teacher remains tenured only if he is reinstated "before the opening of school in September." R. 129. Because Appellant was not re-hired to a penn anent position prior to September, Respondents argued that Appellant was apparently subject to a two year probationary period. R.126-132. In Respondents' Brief, however, their argument seems to have changed to now assert that C-205(29) can only be triggered by utilizing a fonn purportedly required by the Regulation, and that the failure to utilize the fonn results in an automatic one year probationary period. Both of Respondents arguments regarding whether Appellant was re-hired to a probationary appointment are without merit and underscore the arbitrary and capricious nature of their conduct. Respondents' purported alleged administrative woes in hiring employees notwithstanding, Appellant's tenure rights do not depend on Respondent's ability, or lack thereof, to manage their agency. The facts of the instant matter remain that Appellant falls within the narrow constructs of C-205(29): he withdrew his resignation when he re-applied for teaching positions with Respondents and Respondents re-hired him in the same tenure area, license, and salary step. If any facts to the contrary existed, Respondents would have included them in their cross-motion to dismiss as they would have been dispositive of the case. 17 F or the same reasons, the Court should determine that this matter was fully submitted to the Court and not permit Respondents to interpose an answer. See Matter ofNassau BOCES Cent. Council ofTeachers v. BOCES ofNassau County, 63 N.Y.2d 100, 102 (1984). The material facts and positions of the parties are clearly set forth in the record. The Court may determine the instant matter on the merits. Under these circumstances, Appellant must be deemed to have tenure when he was re-hired by Respondents in October 2011. Therefore, Appellant could not be terminated without a proceeding pursuant to Education Law § 3020-a. 18 POINT III APPELLANT WAS NOT REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES BECAUSE THE INSTANT MATTER IS A QUESTION OF LAW AND THE AGENCY ACTION WAS UNCONSTITUTIONAL As stated in Appellant's Brief, Appellant was not required to exhaust administrative remedies to challenge Respondents arbitrary and capricious conduct. It is settled law that a party need not exhaust administrative remedies exhaustion is not required when the matter involved is a question of law. See Coleman v. Daines, 79 A.D.3d 554, 560, 913 N.Y.S.2d 83, 89 (1 st Dept. 2010); Apex Air Freight, Inc. v. O'Cleireacain, 210 A.D.2d 7, 619 N.Y.S.2d 38 (1St Dept. 1994). Also, agencies are required to abide by their own regulations as "(t)he rules of an administrative agency, duly promulgated, are binding upon the agency as well as any person who might be affected." Gilman v. New York State Div. of Hous. 8 Comty. Renewal, 99 N.Y.2d 144, 151, 782 N.E.2d 1137, 1140-1141 (2002). Chancellor's Regulations have the full force and effect of law and are binding on Respondents. See Matter of Lehman v. Ed. ofEduc. of the City Sch. Dist. of the City of New York, 82 A.D.2d 832, 833, 439 N.Y.S.2d 670, 672 (2d Dept. 1981). Whether Appellant is tenured pursuant to C-205(29), and therefore entitled to a due process hearing, is a question of law. Moreover, Appellant's action is to enforce constitutional due process rights guaranteed to him under 19 Education Law § 3020-a. See Gould, 81 N.Y.2d at 451. Indeed, the Appellate Division, First Department agreed with Appellant that this matter is a question of law by its certified question to this Court. Therefore, Appellant was not required to exhaust administrative remedies in this matter. Respondents' arguments to the contrary are unavailing. For one thing, Appellant has not sought to enforce a provision of the collective bargaining agreement. Appellant does not challenge Respondents' decision to reject his submission of the withdrawal of resignation on Respondents' purported form. In fact, Appellant has always maintained that such a form is not required by C 205(29). Rather, Appellant is challenging his discontinuance without a due process hearing. As this Court stated in Kahn, a teacher must challenge his discontinuance within four months of Respondents' decision becoming final. See Kahn v. New York City Dep't of Educ., 18 N.Y.3d 457, 462, 940 N.Y.S.2d 540, 541 (2012). Thus, there was no requirement that Appellant exhaust any administrative remedy prior to commencement of the instant matter. 20 CONCLUSION F or the reasons stated in this reply brief, and for the reasons stated in Appellant's Brief, Appellant respectfully requests that the Court answer the certified question in the negative, reverse the Decision, grant the petition, and order Respondents to reinstate Appellant to his tenured teaching position, together with such other, further and different relief as the Court deems necessary and proper. Dated: New York, New York September 29,2015 Respectfully submitted, RICHARD E. CASAGRANDE Attorney for Petitioner-Appellant 52 Broadway, 9th Floor New York, New York 10004 (212) 533-6300 mgonzale@nysutmail.org By: Of Counsel NYC-Legal: 176613 21 PRINTING SPECIFICATIONS STATEMENT This brief was prepared using Word, Times New Roman typeface, size 14 point. The word count as calculated by the Word processing system is 4382. 22