Labor & Employment Law

Nurchett Brown asked the court to annul the decision of the New York City Department of Education (DOE) dismissing her from her position as a tenured teacher and direct that DOE reinstate her to her former position with back pay and benefits.

Brown, a citizen of Jamaica was authorized to work in the United States as a recipient of a I-129 [nonimmigrant worker] exchange visa and subsequently held an H-1B visa effective through August 3, 2006.

Brown was served with disciplinary charges. The disciplinary arbitrator found her guilty of a number of the charges and imposed a penalty of a suspension without pay for three months and directed Brown to undergo ?remedial training before returning to work.?

However, neither the disciplinary action taken against Brown nor the penalty imposed were the basis for Brown?s lawsuit.Rather it was the fallout of the disciplinary action that was the focus of Brown?s challenge.

According to the decision, the Department took the position that Brown?s ?continued employment? while she was suspended without pay would render it in violation of applicable federal regulations providing for the employment of non-immigrant workers and advised Brown that:

1. It would terminate her ?upon the completion of her suspension on November 28, 2008;

2. It would revoke her H-1B status and withdraw the petition it filed on her behalf.

DOE then advised the Department of Homeland Security (DHS) that it was revoking its 1-129 and H-1B petitions it had earlier submitted on behalf of Brown.

Brown, pointing to the fact that she held tenure with DOE, contended that her ?termination? was effected in violation of §3020-a of Education Law in that she was not provided with the required ?pre-termination hearing for tenured teachers."

DOE?s rebuttal: Brown was not entitled to a §3020-a hearing because in contrast to being terminated for alleged misconduct or incompetence, her dismissal flowed from the fact that ?she was no longer legally qualified to work in the United States due to the revocation of her visa.?*

DOE argued that in light of the arbitrator?s decision to suspend Brown for three months without pay, her ?continued employment? would result in DOE violating the controlling provisions the C.R.F. as the DOE would be retaining her in its employ despite the fact that Brown is neither performing any work, nor receiving compensation due to a decision by DOE.

Judge Rakower dismissed Brown?s petition, ruling that DOE?s withdrawal of its petitions on behalf of Brown was neither arbitrary or capricious. The only issue remaining, said the court, is whether her termination on the grounds of her inability to work in the United States was void for lack of a pre-termination hearing pursuant to Education Law §3020-a.

The court decided that ?The termination of [Brown] did not implicate the procedural protections of Education Law §3020-a because [her] termination was due to her legal ineligibility to serve as a teacher, rather than any alleged misconduct or incompetence on her part.

NYPPL Comment: One wonders what would have been the court?s and DOE?s position were Brown placed in a ?three-month sick leave without pay? [or other leave of lawful leave of absence without pay] status because she had exhausted her sick leave credits rather than placed in a ?three-month disciplinary suspension without pay? status as the result of a disciplinary action during the time period involved.

* DOE said that Brown?s three-month suspension without pay required it to notify DHS of its legal obligation to revoke her visa pursuant to 20 C.F.R. 6655.73.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2009/2009_31687.pdf

Full post as published by New York Public Personnel Law on August 05, 2009 (boomark / email).