Applying the statute of limitations

Applying the statute of limitations

Dolce v Bayport-Blue Point UFSD and others, 286 AD2d 316

Sometimes an individual will claim that his or her union had violated its duty of fair representation. The Dolce cases explores a number of issues, including a claim involving an alleged breach of the union's duty of fair representation that were intertwined with Statute of Limitation problems.

According to the Appellate Division, this lawsuit was brought by members Bayport-Blue Point Teachers Association against the Association and the School District. Dolce's compliant alleged a “breach of contract.” In reality, said the court, Dolce's complaint appeared to a violation of the union's “duty of fair representation” claim.

Sustaining State Supreme Court Justice Emerson dismissal of the complaint for a number of technical reasons, including being time-barred, the Appellate Division, said that while the plaintiffs describe their action as involving a breach of contract, “the gravamen [material part] of the complaint is that the defendant Bayport - Blue Point Teachers' Association, Inc., unfairly favored one group of teachers over the Dolce plaintiffs in negotiations with the [school district] over the terms of two successive retirement incentives, thereby causing the Dolce plaintiffs to lose salary and pension benefits.”

According to the Appellate Division, Dolce's claims against the Teachers' Association are, in essence, for breach of duty of fair representation. This means, said the court, the commencement of their action is governed by a four-month Statute of Limitations.

Its conclusion: the Supreme Court correctly determined that the Dolce's claims against the Teachers' Association were time-barred since their petition was filed after the four-month period had passed.

The court also said that “[a]s the claims against the [School District] are inextricably intertwined with the claims against the Teachers' Association for breach of its duty of fair representation, they are governed by the four-month Statute of Limitations ... and thus, are also time-barred.”

Another element in this case: the Dolce plaintiff’s failure to serve a timely notice of claim on the school district. Filing such a notice, said the court, was a condition precedent to the commencement of the action against the school district. Further, the Supreme Court did not have any authority to grant the Dolce plaintiffs permission to serve a late notice of claim.

Why didn't the court has such authority? Because, explained the Appellate Division, citing Sainato v Western Suffolk BOCES, 242 AD2d 301, Dolce ask the lower court for such permission after the Statute of Limitations for bring their law suit had already expired 

COBRA notifications must be sent to eligible individuals by employer

COBRA notifications must be sent to eligible individuals by employer

Phillips v Saratoga Harness Racing Inc., USDC, NDNY, 240 F.3d 174

U.S. District Judge Lawrence E. Kahn ruled that the employer did not satisfy the Consolidated Omnibus Budget Reconciliation Act of 1985's [COBRA] notification requirements when it relied on its employee, Frank Studenroth, to give his former spouse information concerning her rights under COBRA to continue her health insurance.

In 1994 Studenroth, without his wife's knowledge, obtained an ex parte divorce in the Dominican Republic. He told Saratoga to discontinue his group health insurance plan coverage for his former spouse as a covered dependent and to substitute his newly married spouse as his dependent.

Saratoga Harness gave Studenroth the necessary information advising his former spouse of her right to maintain her health coverage under COBRA. According to Judge Kahn, although Studenroth promised Saratoga that he would have the documents delivered to his former spouse, she did not get these materials. She first learned that she no longer had health insurance coverage when her claims for health insurance benefits were rejected for “lack of coverage.”

Judge Kahn said Saratoga was incorrect when it relied on an employee to transmit COBRA information to an estranged spouse. It is the employer's duty to supply such information and it cannot escape this responsibility by relying on its employee's agreement to give the necessary information to a former spouse.

Judge Kahn said that:

While some married couples are able to dissolve their marriages amicably, it is well known that separations and divorces often turn once-loving spouses into bitter enemies. As such, it is unreasonable to depend on a health care plan beneficiary's former spouse to deliver a COBRA notice to the beneficiary. The very nature of divorce itself forecloses this avenue as a reasonable attempt to comply with the notification requirements.

Judge Kahn held Saratoga liable for the medical expenses incurred by the former Mrs. Studenroth.

The lesson here is that an employer must assure itself that the party who is to be advised of his or her COBRA rights must actually receive such information in a timely manner. The best way to do this is for the employer to provide the information directly rather than to rely on a third party to deliver the information on its behalf. In addition, it would be prudent to obtain proof that the individual actually received the information and the date on which that event took place in order to be able to demonstrate it compliance with COBRA's requirements.

A petition seeking the removal a school official requires specific wording

A petition seeking the removal a school official requires specific wording

Decisions of the Commissioner of Education #14,608

Michelle Knapp filed an appeal with the Commissioner of Education seeking to have the Commissioner remove Freeport Union Free School District Board Member Sunday F. Coward. Her appeal was rejected because she failed to comply with the procedural requirements set out in the Commissioner's Regulations.

Knapp charged that Coward had “violated board policies” and had “threatened her and made racist remarks to her following a board meeting on March 28, 2001.” The Commissioner said that he was compelled to dismiss Knapp's appeal because she had failed to serve Coward with a copy of her petition. The decision notes that with respect to "an application to remove a school officer pursuant to Education Law Section 306, Commissioner's Regulation Section 277.1(b) requires that the notice of petition must specifically advise the [school official] that the application is being made for [his or her] removal from office."

It appears that Knapp used the notice prescribed by Section 275.11(a) for appeals brought pursuant to Education Law Section 310. The Commissioner said that “[a] notice of petition which fails to contain the language required by the Commissioner's Regulations is fatally defective and does not secure jurisdiction over the intended respondent,” citing Appeal of Khalid, Commissioner's decision 14,570).

The reason for this, explained the Commissioner, is that it is “the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with Section 277.1(b) necessarily results in a jurisdictional failure and requires dismissal” of the appeal.

Employee terminated for failure to “call-in” and physical confrontations with co-workers

Employee terminated for failure to “call-in” and physical confrontations with co-workers

Kampel v Westchester County Health Care, Corp., 286 AD2d 390

Robert Kampel, was served with disciplinary charges alleging excessive absences, failure to comply with the established call-in procedure to report his absences, and two incidents in which he pushed co-workers. Found guilty, Kampel was terminated from his position.

Finding that the disciplinary determination was supported by substantial evidence, the Appellate Division, citing the Pell standard, Pell v Board of Education, 34 NY2d 222, sustained the penalty imposed. The court said that dismissal was not so disproportionate to the offenses for which Kampel had been found guilty as to be “shocking to one's sense of fairness.”

Independent contractors and Title VII

Independent contractors and Title VII

Holtzman v The World Book Company Inc., USDC, EDPa.- 2001 WL 936492

It is not uncommon for a public employer to engage the services of an “independent contractor” to perform certain tasks.

In deciding the Title VII complaint filed Arlene Holtzman, a former employee of the World Book Company, Senior U.S. District Court Judge Lowell A. Reed Jr. ruled that Title VII protects workers who are “employees,” but does not apply to independent contractors.

According to the decision, Holtzman's position was “outsourced” by World Book and she became an “independent contractor” although she performed essentially the same duties she had performed as a World Book employee. This change in status, said Judge Reed, meant that Title VII no longer was applicable as Title VII only covers applicants for employment and employees.*

The court noted that in 1995 World Book reorganize its sales operations. As a result, it negotiated contracts with individuals designated “regional directors.” When Holtzman was told of the new arrangement, she approached Rosemarie Lee, a former World Book branch manager. Lee had formed her own corporation, Leer Services. Leer's sales force included a number of former World Book sales representatives. Holtzman signed a contract with Leer Services.

Was Holtzman an employee, and if so, whose employee? Judge Reed said that the U.S. Supreme Court set out a number of factors to be considered in determining whether or not an individual is an employee or an independent contractor in Nationwide Mutual Insurance Company v Darden, 503 US 318.

The Supreme Court's “common law test” for determining who qualifies as an “employee” in Darden lists the following factors to be considered in making the determination:

1. The hiring party's right to control the manner and means by which the work is accomplished.

2. The skill required;

3. The source of the supplies and tools used by the individual;

4. The location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional duties or projects to the hired party;

7. The extent of the hired party's discretion over when and how long to work;

8. The method of payment;

9. The hired party's role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hired party is in business;

12. Whether the hiring party provides employee benefits; and

13. The tax treatment of the hired party.”

Applying the Darden factors to Arlene Holtzman's position selling World Book's educational products, Reed found that her status had clearly changed in 1995 from employee to independent contractor and thus she was not able to maintain her Title VII action.

* Title VII defines the term “employee” as “an individual employed by an employer ....”