BARRERA v. FRONTIER CENTRAL SCHOOL DISTRICT (1998)

 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 N.Y.2d 486, 489-490, 423 N.Y.S.2d 866, 399 N.E.2d 897, cert. denied 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787).   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, 423 N.Y.S.2d 866, 399 N.E.2d 897;  see also, Antinore v. State of New York, 49 A.D.2d 6, 10-12, 371 N.Y.S.2d 213, affd. 40 N.Y.2d 921, 389 N.Y.S.2d 576, 358 N.E.2d 268;  Guilford v. City of Buffalo, 177 A.D.2d 971, 971-972, 577 N.Y.S.2d 1017, appeal dismissed and lv. denied 79 N.Y.2d 912, 581 N.Y.S.2d 662, 590 N.E.2d 247;  Matter of Flemming v. Cagliostro, 53 A.D.2d 187, 189, 386 N.Y.S.2d 106, lv. denied 40 N.Y.2d 806, 390 N.Y.S.2d 1025, 359 N.E.2d 438;  see generally, Civil Service Law § 76[4] ).

Judgment unanimously reversed on the law without costs and petition dismissed.

MEMORANDUM: