Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Pichardo v New York City Dept. of Educ., 2012 NY Slip Op 07071, Appellate Division, First Department

Supreme Court, New York County, granted the New York City Department of Education’s motion to dismiss the complaint filed by Karien Pichardo’s against them as time-barred.

The court was not persuaded by Pichardo’s claim that the Department had “contributed to her delay in commencing the action” and that therefore should be estopped from asserting a statute of limitations defense with respect to her claims of gender and disability discrimination, sexual harassment, retaliation, and breach of contract.

The Appellate Division agreed, noting that Pichardo had failed to establish due diligence on her part in ascertaining the limitations period for commencing the action.

The court explained that Pichardo’s “non-tort claims” accrued on the date of her termination as a probationary teacher while her allegations of “negligent supervision and hiring and negligent infliction of emotional distress claims accrued on the date of the last alleged underlying act.” Further, the Appellate Division ruled that her “tort claims” were barred as well.

Once aspect of Pichardo’s argument alleged a “continuing” action that might preserve certain claims in her petition. The Appellate Division’s ruling, however, noted that “in opposition to [the Department’s] motion [to dismiss her petition], [Pichardo] failed to avail herself of the opportunity to submit an affidavit or other evidence to amplify the allegations in her complaint and establish the timeliness of her claims.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07071.htm

Being at work is an essential job function

Being at work is an essential job function
Dickinson v New York State Unified Ct. Sys, 2012 NY Slip Op 06895, Appellate Division, First Department

The Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged both misconduct and incompetency due to excessive absenteeism and lateness.

Although the court agreed with the former employee that misconduct "requir[es] a showing of willfulness or intentional misconduct," it explained that "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty."

There was, said the court, substantial evidence supporting the employer's determination and the employer was not required to warn the individual that his absences and tardiness could lead to dismissal notwithstanding the individual’s argument to the contrary.

The Appellate Division also ruled that the employer had not violated due process by relying on evidence of absences and tardiness outside the time period delineated in the specification of charges as such evidence was only considered in determining the appropriate sanction to be imposed and not to determine individual's guilt.

As to the penalty imposed, termination, the court said that it did not shock its sense of fairness as “[b]eing present at work is an essential job function” and an employee’s "disability ... may not be used to shield him from the adverse consequences of inadequate job performance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06895.htm

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

Source: Office of the Governor

On October 22, 2012 Governor Andrew M. Cuomo announced the creation of the New York State Center for Recruitment and Public Service (RPS). RPS, to be housed within the Office of General Services (OGS), replaces the Governor’s Appointments Office. 

According to the Office of the Governor, “RPS will reorganize the state government’s existing archaic appointment process” and oversee hiring and placement for approximately 5,000 unpaid positions and 2,000 staff positions.

Characterizing the “old appointments process” as “disjointed and politicized” and lacking in access to the tools used by today’s recruitment professionals, OGS will release a Request For Proposal (RFP) seeking the services of an executive search firm that will be tasked with attracting qualified candidates to state government and help the state “build its own recruiting operation so that New York state government can compete with the private sector and become an employer of choice.”

Other objectives include:

1. Better matching skills with available positions and candidates

2. Reforming the background check process for candidates

3. Establishing and tracking benchmarks for success

4. Strengthening the state’s competitive position in the “talent marketplace” by maximizing social media opportunities

5. Building a “New York State Recruitment Portal” – an online, interactive website for interested candidates to explore and apply to positions.

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

New York City  Human Resources Admin. v. Anonymous, OATH Index No. 1781/12 

An employee diagnosed with multiple psychiatric problems was found unfit to perform the duties of the position due to being frequently unable to interact with co-workers and supervisors without engaging in disruptive, angry, and sometimes “frightening behavior.”

OATH Administrative Law Judge Faye Lewis found that the employer had made efforts to modify the duties of the position but the individual’s behavior “was persistently disruptive.”

After considering the disciplinary charges filed against the individual, Judge Lewis recommended that the employee be placed on an involuntary leave of absence pursuant to §72 of the Civil Service Law. [Presumably the ALJ was referring to placing the employee on such leave pursuant to §72.5 of the Civil Service Law.*]

As the ALJ determined that the employee’s acts that caused disciplinary charges to be served were the result of a disability, she found that the charges of misconduct filed against the individual were not sustained.

* An individual placed on such leave subsequently terminated from the position pursuant to §73 of the Civil Service Law may apply for reinstatement within one year of his or her being found physically and mentally fit to resume performing the duties of  his or her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1781.pdf