Labor & Employment Law

Objection to suspension without pay for more than 30 days must be timely

By Harvey Randall, Esq.

Objection to suspension without pay for more than 30 days must be timely
Matter of Marc Dorsey v Coleman, 2007 NY Slip Op 03821, Appellate Division, Third Department, Decided on May 3, 2007

Marc Dorsey was employed as a police officer with the Village of Altamont, Albany County. When the Village learned that he had been charged with a Class B misdemeanor in the City of Albany, it suspended him without pay. However, the suspension without pay continued beyond the 30-day period authorized by Civil Service Law Section 75(3). Further, the Village did not schedule a Section 75 disciplinary hearing.

Dorsey, however, did not request reinstatement to the payroll following the 30-day period of suspension without pay authorized by law nor did he ask that a Section 75 disciplinary hearing be scheduled.

Although the criminal charge was dismissed in June 2004 it was not until November 2004, that Dorsey first requested reinstatement to his former position. His request was ultimately denied by the Village as untimely in a letter dated June 3, 2005.

Dorsey, in response to the Village?s decision, filed an Article 78 proceeding in the nature of mandamus[1] to compel the Village to reinstate him with back pay and to provide him with a disciplinary hearing.

The Appellate Division dismissed his petition. The court, citing Matter of De Milio v Borghard, 55 NY2d 216, said that ?Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee?s demand for reinstatement is refused.? The individual, however, cannot ?indefinitely extend the running of the statute of limitations by delaying the demand? and in such situations the courts have applied the doctrine of laches[2] to an employee?s failure to act to protect his or her claims to a right or benefit. In this instance the Appellate Division decided that ?a four-month period is the measure of permissible delay in the making of a demand? for reinstatement.?

According to the decision, Dorsey ?was first aggrieved? by the Village when he was neither paid nor reinstated after January 3, 2004, the ending date of the 30-day period of unpaid suspension authorized by Civil Service Law Section 75(3). By failing to take any action to demand pay or reinstatement until November 2004, he exceeded the four-month period permitted to make a demand as well as the four-month period thereafter within which to bring a proceeding.

Accordingly, the Appellate Division ruled that Dorsey?s claim for improper suspension or discharge was time barred when he commenced his Article 78 proceeding in October 2007.

[1] An ?order of mandamus? is a directive by a court to compel a public official or body, or a lower court, to perform a specified duty.

Full post as published by New York Public Personnel Law on March 04, 2008 (boomark / email).