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Wednesday, February 15, 2012

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination
Kahn v New York City Dept. of Educ., 2012 NY Slip Op 01098, Court of Appeals [Decided with Nash, v New York City Dept. of Educ.]

In Kahn v New York City Department of Education 79 AD3d 52, the Appellate Division held that the statute of limitations for initiating a lawsuit is not tolled by the individual’s pursuing his or her opportunity to seek an administrative review of the determination.

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to an administrative review under the relevant collective bargaining agreement. Kahn filed an "administrative appeal." An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging that determination.

The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.

To avoid such a result, where there is an administrative appeal available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition. 

In this instance the
Department of Education was obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment. However, the Court of Appeals decided that such reviews "stem solely from the [CBA]" and constitute ‘an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law §2573(1)(a)’ … they are not administrative remedies that [Kahn was] required to exhaust before litigating the termination of [her] probationary employment.”

As DOE’s decisions to discontinue the employment of Kahn and Nash were "final and binding" within the meaning of CPLR §217 (1) as of the dates when Kahn's and Nash's probationary service ended, January 25, 2008 and July 15, 2005, respectively, the fact that they awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit proved fatal to their filing a timely petition challenging those decisions. As they had, respectively, filed their respective petitions more than four months after the dates when their probationary service ended, such challengers were held time-barred.

The court explained that "The law is well established that a decision to terminate the employment of a probationary [employee] is final and binding on the date the termination becomes effective, and this is true even in circumstances where administrative review is available," citing Triana v Board of Education, 47 AD3 554.

In addition, the Court of Appeals said that the Appellate Division noted although Kahn’s notice of termination was procedurally defective because she was not given the 60 days' prior notice required by Education Law §2573(1)(a), "that defect [did] not invalidate the discontinuance [of her employment] or render the statute of limitations inapplicable; at best, it would have entitled [Kahn] to additional back pay had she served a notice of claim and sought money damages."

As to Nash, the Appellate Division [see 82 AD3d 470] held that to the extent that Nash disputed the loss of her job at DOE, her claim was time-barred under CPLR §217(1) because "a petition to challenge the termination of probationary employment must be brought within four months of the effective date of termination, during which time the termination is deemed to become final and binding, and a petitioner's pursuit of administrative remedies does not toll the four-month statute of limitations."  

The Court of Appeals affirmed the Appellate Divisions’ rulings in both Kahn and Nash.

The lesson here is that should an aggrieved individual await the final “administrative determination” rather then file an otherwise timely petition seeking judicial review, he or she may find that his or her subsequent filing of such a petition is untimely.

The decision in Kahn, decided with Nash, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01098.htm

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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