Monday, August 15, 2016

Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?


Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?
Savvis v New York City Dept. of Educ., 2016 NY Slip Op 05751, Appellate Division, Second Department

Debra Savvis sued the New York City Department of Education to recover damages for alleged unlawful discrimination on the basis of sex and a hostile work environment in violation of New York State’s Executive Law §296. Supreme Court granted Department of Education's motion for summary judgment, dismissing the complaint on the ground that the Savvis had failed to serve a timely notice of claim.

Savvis appealed but the Appellate Division, in its August 10, 2016, decision,said that her action was barred by Education Law §3813(1), which required the filing of a notice of claim within three months after the accrual of a cause of action, which admittedly was not done in this instance.*

The court also rejected Savvis’ argument that she was relieved of the notice of claim requirement on the basis that her action was brought to vindicate a public interest, holding that “Supreme Court properly granted the City Education Department’s motion for summary judgment dismissing the complaint.”

However, in Carter v Syracuse City School District, a summary order by the United States Circuit Court of Appeals, 2nd Circuit, Docket 15-2395, dated August 8, 2016, noted that a decision by New York State’s Court of Appeals, Margerum v City of Buffalo, 24 NY3d 721, addressed one of the critical issues in Carter: was a notice of claim a condition precedent to filing a human rights action against a municipality?  

The Federal District Court had dismissed Carter's petition on a finding that Carter had failed to comply with the notice-or-claim provision in New York State’s Education Law §3813, which the District Court had held were conditions precedent to bringing any action against a school district or its officers pursuant to the State’s Human Rights Law. The issue, as perceived by the Circuit Court in issuing its summary order, was whether Carter was required to serve a timely notice of claim on the Syracuse City School District in first instance in view of Margerum. The Circuit Court remanded the action to the district court to reconsider this and a number of other issues.

In Margerum New York State’s Court of Appeals held that “a notice of claim need not be filed for a Human Rights Law claim against a municipality .…” Noting that “General Municipal Law §50-i (1) precludes commencement of an action against a city ‘for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,’ unless a notice of claim has been served in compliance with §50-e,” the court explained that “human rights claims are not tort actions under §50-e and are not personal injury, wrongful death, or damage to personal property claims under §50-i,” concluding that “there is no notice of claim requirement here.”

In his concurring opinion, Justice Read noted that the Court of Appeals had held “that an employment discrimination claim brought against a county [sic] under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement,” citing Mills v County of Monroe, 89 AD2d 776, [affd. 24 NY3d 721], 59 NY2d 307. He then said that “There are certainly reasons why the legislature might nonetheless choose to treat civil rights actions differently, as this opinion suggests; however, it is hard to believe that the legislature ever intended to create a situation where an action brought against the County of Erie alleging violations of the Human Rights Law would require a notice of claim as a condition precedent to suit, while the same type of action brought against the City of Buffalo would not.”**

Justice Rivera, in a separate opinion, concurring in part and dissenting in part, said “The Court [of Appeals] has broadly interpreted the Human Rights Law consistent with the statutory mandate that ‘[t]he provisions of [the Human Rights Law] shall be construed liberally for the accomplishment of [its] purposes.’”

* There have been a number of decisions indicating that under certain circumstances a notice of claim is not required. Examples include:

1. New York State's Public Employment Relations Board, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, held that claims filed with the NY State Division of Human Rights, a State administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law §3813, concluded that such notice is not required with respect to improper practice charges filed with it.

2. The Commissioner of Education has held that §3813 does not apply to appeals brought under §310 of the Education Law, [Decisions of the Commissioner of Education, 12369].

3. In Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division ruled that a petition filed with the Commissioner of Education may constitute the functional equivalent of a §3813(1) notice of claim.

4. In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights."

** In Freudenthal v. Nassau County, 99 NY2d 285, footnote 5, the court said "... we conclude that Division proceedings are governed exclusively by the commencement procedures in Executive Law §297(5)." Thus it would appear that a timely filing with the Division controls with respect to the public entity named as a respondent in a human rights complaint submitted to it regardless of other provisions in law otherwise requiring the timely filing a notice of claim with such a public entity. 

The Carter decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/doc/15-2395p_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/hilite/

The Margerum decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_01378.htm

The Savvis decision is posted on the Internet at:

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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