The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies

The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to 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 the determination.

Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.

Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.

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.

Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.

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

Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.

The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm

Retirement incentives

Retirement incentives
Bellanca v Grand Island CSD, 275 AD2d 944

Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.

Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.

According to the teachers, the district induced them to accept early retirement by promising them special incentives.

Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.

Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.

One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.

According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.

The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.

Section 207-c administrative hearings

Section 207-c administrative hearings
Doolittle v Broome County, 276 AD2d 863

The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.

Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.

According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.

The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.

A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.

Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.

Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**

Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.

In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.

Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.

Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.

After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:

In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.

In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.

Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.

Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.

Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.

* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/

** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.

Union animus

Union animus
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704

Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).

PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.

Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.

PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.

The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.

The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.

Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”

Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.

As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.

The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department

Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.

After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.

The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.

The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*

As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.

* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm