The continuing violation exception when filing of a complaint alleging a violation of New York State's Human Rights Law is not triggered by a single event

Petitioner appealed Supreme Court's granting the New York State Office for People with Developmental Disabilities' [OPDM] pre-answer motion to dismiss the Petitioner's complaint alleging unlawful discrimination in violation of New York State's Human Rights Law based on OPDM's rejection of her application for employment as "time-barred".

The Appellate Division affirmed the lower court's ruling.

Noting that OPDM had the initial burden of establishing, prima facie, that Petitioner's cause of action was untimely filed, the Appellate Division said that OPDM had established that the last discriminatory act set forth in the Petitioner's complaint occurred on August 30, 2013. Accordingly Petitioner's cause of action accrued, and the three-year statute of limitations for the Human Rights Law began to run, on that date. However, Plaintiff did not file her complaint until March 10, 2017, more than six months after the statute of limitations period had expired.

OPDM, having made a prima facie showing that Petitioner action was untimely, shifted the burden of going forward to Petitioner to establish that some exception to the limitations period applied in her situation that would allow her lawsuit to go forward. Petitioner attempted to do so by alleging that the continuing violation exception was applicable in her situation and thus her action had been timely filed.

The Appellate Division disagreed, concluding that Petitioner had failed to meet her burden of proof. Assuming, but not conceding, that the denial of Petitioner's application for employment constituted an act of unlawful discrimination, this constituted but a "single act" rather than evidence of "an ongoing policy of discrimination." 

The court explained that a single act of unlawful discrimination does not trigger the continuing violation exception and thus the running of the statute of limitations had not been tolled and had expired "six or more months" prior to the date on which Petitioner had filed her complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01887.htm

Judicial review of student disciplinary action taken by a private college or university is limited to whether the institution substantially complied with its own rules

A New York Supreme Court denied a petition filed by a student [Student] attending a private institution of higher education [Institution]. Student had asked the court to annul the Institution's decision affirming a hearing committee's suspending the Student for one semester based on its finding that Student had engaged in academic dishonesty -- forging an examination booklet. Student appealed the Supreme Court's decision, arguing that the disciplinary action taken by the Institution violated his right to "due process."*

The Appellate Division commenced its review of Student's appeal by observing that Student's "due process" challenge was misplaced. Citing Cavanagh v Cathedral Preparatory Seminary, 284 AD2d 360, among other decisions, the court explained that a student at a private university is not afforded the "full panoply" of due process rights that might be available to a student at a public institution of higher education.

Accordingly, in the absence of any "State involvement," the only issue for review by the court is whether the institution substantially complied with [1] its own rules; [2]  was made in accordance with its written disciplinary policy; and [3] was rationally based and not arbitrary and capricious.

Turning to the Institution's procedures, the Appellate Division observed that Student "had ample opportunity at the hearing to defend his conduct and explain his actions." However, said the court, the Institution's rejection of Student's explanation as not credible was not irrational nor was the denial of Student's internal appeal irrational. The Institutions' written policy provided for limited grounds for appeal, "none of which availed Student."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division opined that there was nothing shocking or disproportionate about the one-semester suspension imposed on Student.

Addressing another issue, Student's allegation that the Institution had defamed him, the Appellate Division held that Supreme Court's dismissal of his defamation claim was correct because:

1. The subject statements were true;

2. The statements had not been published to any persons outside the university; and

3. The Institution's statements were protected by a qualified common interest privilege.

As to Student's allegations of malice, the Appellate Division said that this amounted to little more than "mere surmise and conjecture" and therefore was insufficient to overcome the Institution's qualified common interest privilege.

* Another issue addressed in this action involve Student's allegation that he had been defamed by the disciplinary action taken against him by Institution.

** The so-called "Pell Doctrine" defines a reasonable disciplinary penalty as one that is "neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01720.htm

Upon permanent appointment to a position in the classified service the officer or employee is typically required to serve a specified minimum period of probation, but not to exceed a specified maximum period of probation.

Upon permanent appointment to a position in the classified service the officer or employee is typically set in terms of his or her serving  [1] a specified minimum period of probation and [2] a specified maximum period of probation.

The appointing authorities may be given discretion to waive a limited period of a probationary officer's or employee's absence during his or her probationary period pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the officer or the employee is extended by the number of workdays of such absences are not counted as "time served" during the individual's probationary period.”* As the Court of Appeals held in Boyle v Koch, 68 NY2d 60, an employee's probationary period may be extended in the event the employee is given a “light duty” or some other alternate assignment while serving as a probationer. 

In this action the petitioner [Probationer] was permanently appointed to his position effective May 16, 2013 and his probationary period was set at not less than two-month and not more than two-years. When Probationer was subsequently terminated from his position effective March 2, 2016, he initiated an Article 78 action contending that his probationary period had ended prior to the termination of his employment and was a tenured employee entitled to notice and hearing as a condition precedent to his termination from his position. In effect, Probationer argued that he had attained tenure by estoppel.

Citing Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, the Appellate Division explained that a probationary employee may "be dismissed for almost any reason, or for no reason at all" after completing his or her minimum period of probation and before the end of his or her maximum period of probation without a hearing and without a statement of reasons for his or her termination in the absence of evidence that the termination was "in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Probationer, however, contended that he had attained tenure** in his position upon his being continued in service after he had completed the minimum two-month period of his probationary period.

The Appellate Division disagreed, noting that the two-month minimum period of probation was simply the beginning portion of the two-year probationary term during which two-month period he could be terminated only upon notice and hearing.*** Further, opined the court, the appointing authority is not required to advise a probationer that his or her probationary term of service is to be continued after the completion of his or her initial two-month period of probationary service.

The Appellate Division said it agreed with the Supreme Court's determination that the termination of Probationer's employment occurred while he was still a probationary employee in view of the fact that his probationary period had been extended due to his absences during his probationary period as a period of probationary employment is measured by the number of days a probationer is actually working at the job and "may be extended by the number of days that the probationary employee does not perform the duties of the position."

In addition, the City maintained that Probationer had not acquired tenure in the position by reason of his having been continued in service after he had completed his maximum period of probation. Rather the Probationer was terminated before having completing his maximum period of probation as his probationary term had been extended [1] by the number of days that he was required to work but was absent; and [2]  by his agreeing to extension his probationary period  based upon his attendance, punctuality, and disciplinary records.

Finding that Probationer had failed to demonstrate that the termination of his employment during his probationary period was made in bad faith or for a constitutionally impermissible or an illegal purpose or in violation of statutory or decisional law, the Appellate Division sustained the Supreme Court's ruling denying Probationer's petition and dismissing the proceeding.

* See, for example, 4 NYCRR 4.5(g), “Absence during probationary term”.

** The decision implies that a probationary appointment does not become permanent until the completion of the minimum period of probation. As a general rule, an individual is initially appointed to the position as "permanent" effective on the date of his or her appointment but does not attain tenure in the position until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

*** In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_02093.htm