Filing a notice of claim

Filing a notice of claim
Sangermano v BOCES of Nassau County, 290 AD2nd 498

Section 3813(1) of the Education Law requires that an individual who plans to sue a school district or a BOCES file a timely notice of claim with the entity he or she seeks to sue prior to initiating his or her lawsuit. Does this requirement apply to complaints alleging a violation of a human rights law?

Former Nassau County BOCES employee Michael Sangermano learned that sometimes the answer is yes, sometimes it is no, depending on the nature of the claim.

Sangermano sued the BOCES in an effort to recover damages for what he alleged constituted employment discrimination in violation of Executive Law Section 296, and violations of his right to due process pursuant to 42 USC 1983.

The Appellate Division said that the Supreme Court correctly granted BOCES' motion to dismiss Sangermano's claims alleging that the BOCES violated the Executive Law because he failed to file a timely Section 3813(1) notice of claim.

These claims alleged that Sangermano suffered constructive termination as a result of racial discrimination by the BOCES in violation of Section 296 of the Executive Law.

Citing Mills v County of Monroe, 59 NY2d 307, the Appellate Division deposed of this aspect of Sangermano's lawsuit when it held that:

Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of the Executive Law, the filing of a timely notice of claim is a condition precedent to [his or her filing] suit.

Sangermano's second claim alleging that he was forced to resign from his employment without having been afforded the "procedural safeguards and a right to be heard prior to termination" as guaranteed by a federal civil rights law, 42 USC1983, survived notwithstanding the fact that he had not filed a Section 3813(1) claim with the BOCES.

The court said that such a notice of claim requirement is inapplicable to claims filed pursuant to 42 USC 1983.

Historic documents concerning the Civil Service Employees Association, Inc. on file at SUNY at Albany

Historic documents concerning the Civil Service Employees Association, Inc. on file at SUNY at Albany

Source: Archives of Public Affairs and Policy – SUNY at Albany

For those involved in researching the history of public sector labor relations in New York State, the M. E. Grenander Department of Special Collections at State University at Albany offers a collection of materials concerning the Civil Service Employees Association, Inc., American Federation of State, County, and Municipal Employees Local 1000, on microfilm dating back to 1918.

All microfilm items in the manuscript group (with the exception of the Meeting Transcripts which were microfilmed by CSEA) were lent to the University Libraries, M.E. Grenander Department Special Collections and Archives, by the Civil Service Employees Association, Inc. (CSEA), AFSCME Local 1000, and subsequently microfilmed as a part of the Harry Van Arsdale, Jr., Labor History Project.

The original documents supplied by CSEA were returned to it after they were microfilmed. All other records were donated to the University Libraries between 2005 and 2010. 

Click here March for a sample publication from the collection.

The records were compiled by La Nina M. Clayton and revised by Sarah Cross, Devin Lander and Melissa McMullen. An index of the materials available is posted on the Internet at http://library.albany.edu/speccoll/findaids/apap015.htm

The library is located at 1400 Washington Avenue, Albany, New York 12222. For information concerning the collection, call the library staff at 518 - 437-3935

Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education

Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education

Appeal of Nayana Vyas from action of the New York City Department of Education, Superintendent Elena Papaliberios, and Principal Iris Blige regarding an unsatisfactory rating and other personnel matters. Decisions of the Commissioner of Education #16,306

Nayana Vyas served as a probationary mathematics teacher at Fordham High School for the Arts (“FHSA”) in the New York City School District. 

Although she was rated Satisfactory on her professional performance review and on the report of her probationary service during academic 2007-2008, the School District said that Vyas “had demonstrated difficulty in a number of areas.”

Although the School District said that Vyas “needed improvement in six areas.” She was rated satisfactory on her annual professional performance review and report on probationary service for academic 2008-2009.

During the 2008-2009 school year, petitioner also exclusively taught mathematics courses and was provided with professional development support.  On or about June 22, 2009, although petitioner received an S-rating on her annual review, she was also informed that she needed improvement in six areas. 

In September 2009, Vyas was assigned to teach remedial math, health and forensics and subsequently assigned to assist in an anatomy review course due to the unexpected resignation of the teacher assigned to that course. 

In April 2010, Vyas was offered the opportunity to enter into an extension of probation agreement because her performance had not improved, which put her at risk of being discontinued on probation. Vyas agreed to an extension of her probationary period through September 1, 2011.

In June 2010 Vyas was given “an overall U-rating on her annual review which included U-ratings in seven categories and ‘needs improvement’ ratings in four other categories.”

Asserting that her U-rating was the result of gross error, bad faith and malice by her supervisors, Vyas filed an appeal with the Commissioner of Education seeking a reversal of her U-rating and its removal from her personnel file; replacing the U-rating with an S-rating and that she be granted tenure retroactive to September 2010. She simultaneously filed an administrative appeal with the New York City Department of Education.

The Commissioner dismissed all of Vyas’ appeals except her challenge to her June 28, 2010 U-rating as either as untimely, moot or both, noting that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.

Thus Vyas’ only surviving claim was her challenge to her June 28, 2010 U-rating. 

Rather than being untimely, the Commissioner, in effect, ruled that this claim was premature as Vyas had not yet exhausted her administrative remedies at the time she had filed her appeal to the Commissioner. The Commissioner noted that Vyas had appealed her U-rating through an administrative process for appealing unsatisfactory annual performance ratings “and the record does not indicate that the administrative review process has concluded.”

Accordingly, said the Commissioner, her appeal must be dismissed. 

The text of the Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16306.html

Appealing a final administrative decision

Appealing a final administrative decision
Diamond v Gallagher, 291 A.D.2d 404

The Diamond decision by the Appellate Division, Second Department, demonstrates the importance of filing a timely appeal challenging an administrative determination if the individual is unhappy with the ruling.

Suffolk County sent a letter to one of its police officers, Michael Diamond, notifying him of an administrative decision to terminate him from his position. About two years later Diamond filed a petition pursuant to Article 78 of the Civil Practice law and Rules [CPLR] challenging his dismissal from the Department.

Supreme Court rejected Diamond's petition as untimely and he appealed the court's ruling to the Appellate Division. Affirming the lower court's determination, the Appellate Division succinctly set out the basic rule for filing a timely appeal of an administrative decision as follows:

1. Section 217(1) of the CPLR provides that a proceeding pursuant to CPLR Article 78 against a body or an officer must to be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner".

2. An administrative determination is final and binding when it has an impact upon the individual and when the individual knows he or she is aggrieved.

Finding that the challenged determination became final on the effective date of Diamond termination, and that he was informed of his termination and that he acknowledged it on that date, the Appellate Division said that "the Supreme Court correctly dismissed the proceeding commenced over two years later as untimely."

Qualifying for promotion examination

Qualifying for promotion examination
Liebe v Nassau County CSC, 291 A.D.2d 451

Richard Liebe asked the Nassau County Civil Service Commission to add his name to the list of eligible candidates for the position of Sanitary Engineer IV. The Commission said no, it would not do so and Liebe sued.

The Appellate Division said that the Commission's refusal to add Liebe's name to the promotion list of individuals qualified for the promotion to the position of Sanitary Engineer IV was neither arbitrary nor capricious.

The court noted that Section 52.1 of the Civil Service Law provides that vacancies in the competitive class shall be filled, as far as practicable, by promotion of persons holding lower grade positions in the direct line of promotion. According to the decision, Liebe simply "did not hold a position in the direct line of promotion."

Who determines if a position is in the "direct line of promotion or not?" Section 52.1 states that the State Department of Civil Service or the Civil Service Commission having jurisdiction makes that determination.

The decision also notes that Liebe made no showing that it was impracticable or that it was against public interest for the Nassau County Civil Service Commission to limit eligibility for the promotion examination for Sanitary Engineer IV to employees in positions in the direct line of promotion.

However, there are a number of exceptions to the general rule concerning promotion from within via the direct line of promotion.

CSL Section 51.1 permits the State Department of Civil Service or a municipal commission to conduct an open competitive examination to fill a vacancy normally filled by promotion examination.

In such cases, however, any employee who believes that a promotion examination should be held to fill the vacancy may submit his or her request to the Department or appropriate municipal commission, stating the reasons why he or she believes it to be practicable and in the public interest to fill the vacancy by promotion examination.

Further, where there are less than three persons eligible for promotion in the promotion unit or department where the vacancy exists, the department or municipal commission may conduct an open competitive examination or an employee may be nominated for a noncompetitive promotion examination in accordance with the provisions of CSL Section 52.7.

Under certain circumstances the Department of Civil Service may authorize a "noncompetitive open-competitive examination" to fill the vacancy in `State Departments and Agencies' consistent with the requirements set out in the Rules for the Classified Service, 4 NYCRR 4.2(b).

A relatively rarely used type of noncompetitive examination is authorized by CSL Section 70.4. A Section 70.4 examination may be authorized in situations involving the transfer of an employee to a position in a similar grade where there is a title change. In such cases, a permanent employee in the competitive class who meets all of the requirements for a competitive examination and who is found otherwise qualified by the State Civil Service Commission or the responsible municipal civil service commission may be given a non-competitive examination to the "different position classification."