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November 17, 2017

Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation


Terminated employee sues the employer challenging her dismissal and the union for its alleged breach of its duty of fair representation
Thompson v District Council 37, 2017 NY Slip Op 07964, Appellate Division, First Department

Bobbie Thompson sued District Council 37 [DC-37], her collective bargaining organization after to it informed her that it would not demand arbitration challenging the  termination of her employment. However, because Thompson failed to commence her CPLR Article 78 action against her former employer, the New York City Department of Education (DOE), within the four-month limitations period governing claims filed under Article 78 or the one-year limitations period applicable to other claims against  provided for in Education Law §3813(2-b).

As §3813(2-b) states that "Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose," the Appellate Division ruled that Thompson's causes of actions were time-barred.

Turning to Thompson's claims against DC-37 for an alleged breach of the unions duty of fair representation, the Appellate Division ruled that her actions was "likewise untimely under the applicable four-month limitations period." The court explained that Thompson's  discrimination claims against DC-37 relating to events alleged to have occurred prior to September 10, 2012are untimely under the governing three-year limitations periods.

Addressing Thompson's "facially timely claim that the union discriminated against her by refusing to arbitrate her termination," the court ruled that Thompson "fails to state a cause of action," noting that Thompson failed to allege any facts which could support an inference of bias.

Thompson's final contentions included constitutional claims and claims under Civil Service Law §75. The court said that those claims were "unpreserved and without merit."

As to Thompson's claims with respect to §75, in Antinore v Stat, 40 NY2d 6, the Court of Appeals ruled that a public employee's collective bargaining agent could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced..

Thus if DC-37 was authorized by law to negotiate an alternate disciplinary procedure with Thompson's employer providing equivalent administrative due process, in this instance apparently §75 of the Civil Service Law, on behalf of employees in the relevant negotiating unit, an employee in that negotiating unit would no longer be entitled to claim the "notice and hearing" mandated by §75 of the Civil Service Law with respect to disciplinary action taken against the individual by his or her employer.

The decision is posted on the Internet at: