Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Filing an appeal from an administrative decision in accordance with a grievance procedure does not toll the running of the statute of limitations for bringing an Article 78 action

Matter of Matter of Hazeltine v City of New York, 2011 NY Slip Op 08625, Appellate Division, First Department.

The Appellate Division, pointing out that an Article 78 petition challenging an administrative personnel decision with which the employee is unhappy must be brought within four months of the effective date of termination dismissed Hazeltine’s complaint noting that the time to commence such an Article 78 proceeding  “is not extended by the [individual’s] pursuit of administrative remedies.

Hazeltine had appealed the personnel decision to higher authority in accordance with the procedures providing for such challenges.

In this instance, said the court, Hazeltine’s cause of action accrued on August 24, 2007 and his petition was not filed until November 2, 2009, more than two years after his cause of action accrued.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_08625.htm

Fire District’s adverse impact on another protected class defense rejected

Fire District’s adverse impact on another protected class defense rejected

Source: Justia Reports: NAACP v North Hudson Reg’l Fire and Rescue, USCA, Third Circuit, Docket 10-3695

The municipalities that make up the fire protection district had populations that were 69.6% Hispanic, 22.9% white, and 3.4% African-American. In 2008, the district employed 302 firefighters: 240 whites, 58 Hispanics, and two African-Americans.

When this litigation began, the district sought to fill 35 to 40 new firefighter positions. Six Hispanic applicants earned passing scores on the firefighter exam and satisfied a residency requirement. Based on their scores they ranked 21, 25, 26, 45, 49, and 70 on the residents-only list. They would rank much lower if non-residents were included on the same list.

The NAACP successfully sued under Title VII of the Civil Rights Act of 1964, claiming that the residency requirement was invalid as having a disparate impact on African-American applicants. The fire district and the Hispanic applicants appealed.

The Third Circuit affirmed, rejecting the district's claims of concerns about impact on Hispanic applicants.

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca3/10-3965/103965p-2011-12-12.html

Restoration to eligible list a matter of discretion

Restoration to eligible list a matter of discretion

Lee v Director of Personnel [Not selected for publication in the Official Reports]

Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list?

In Lee v Director of Personnel a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel.

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious.

The court also commented that a probationary employee may be dismissed prior to the end of the probationary term without notice and hearing.

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Albino v. the City of New York, 80 A.D.2d 261

A situation confronting public employee unions, and ultimately the employer, with increasing frequency is how far the union must go to meet its duty of providing those it represents with “fair representation.”

In Albino the Court provides a number of guidelines concerning this question.

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency.

After the arbitrator ruled against the employee, the employee wanted the Union to appeal the award to the Court. The Union refused, indicating “that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement.”

The employee then attempted to sue the employer. The Court dismissed the case indicating that there was no evidence that there was any lack of fair representation by the Union.

Removal of a reprimand in an employee’s personnel file

Removal of a reprimand in an employee’s personnel file

Opinions of the Attorney General, Informal Opinion 81-28

May a reprimand placed in an employee’s file as a result of a negotiated settlement of a disciplinary action be later removed from the employee’s personnel file?

In Informal Opinion 81-28, the Attorney General indicated that it was permissible “to clear the record of an employee who in the past misbehaved, but who since has performed well.” In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a “legislative act.” Presumably, an appointing officer has similar authority to remove the record of discipline by “executive action”.