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December 20, 2011

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely

Former employee's alleged constructive discharge and continuing violation claims rejected as untimely
Thomas v City of Oneonta, 2011 NY Slip Op 08711, Appellate Division, Third Department

Andrew Thomas, while serving as a City of Oneonta police officer, reported various acts of alleged on-duty misconduct allegedly committed by certain of his fellow officers to his supervisor and then repeated these allegations to the Chief of Police. As a result of an investigation of the officer’s allegations three officers were placed on suspension.

Shortly after Thomas had reported the alleged misconduct he was assigned “to the 4:00 P.M. to midnight shift (instead of his usual day shift), his days off would switch from weekends to midweek and he would be assigned certain additional duties previously performed by one of the suspended officers”

Thomas subsequently told his superior officers that he was being harassed by the suspended officers, contended that he was being punished for reporting the alleged misconduct.

Thomas then resigned from this position with the City of Oneonta Police Department and some time later served a notice of claim on the City [see General Municipal Law §50-e] and then commenced a lawsuit against City pursuant to Civil Service Law §75-b alleging, among other things, that he was the victim of retaliatory personnel actions. The City’s answer contended that Thomas’ action was filed after the Statute of Limitations had expired.

The Appellate Division said that in order to maintain such an action as this, a plaintiff is required to serve a notice of claim upon defendant within 90 days after his or her underlying claims arose and, further, must commence his or her action "within one year after the alleged retaliatory personnel action[s]" took place.

Here, said the court, Thomas’ claim arose when his work schedule and the assignment of additional duties became effective on or about October 6, 2009, but he had not served his notice of claim until February 5, 2010 — well beyond the 90-day statute of limitations period. In addition, the Appellate Division noted that the action was not commenced until November 3, 2010, clearly beyond the controlling one-year statute of limitations.

As to Thomas’ “constructive discharge claim,” the Appellate Division, citing Clark v State of New York, 302 AD2d 942, ruled that that claim “is equally untimely, as such claim arose when he tendered his resignation on November 2, 2009  — the date upon which Thomas "severed his relationship with his former employer" rather that not the date upon which he deemed his resignation to be effective.”

Addressing Thomas’ claim of a “continuous violation,” the court held that the continuing violation doctrine does not operate to toll either of these statute of limitations periods. The Appellate Division explained that, the doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08711.htm

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