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Failure to appeal

By Harvey Randall, Esq.

Failure to appeal
Fontaine v Comm. of Labor, App. Div., Third Dept., 283 A.D.2d 825
Thomas v Stone, App. Div., Third Dept 284 A.D.2d 627

The Fontaine Case

The Fontaine case demonstrates that the failure to file a timely objection to an administrative determination bars judicial review of the decision.

Anthony Fontaine was dismissed from his position as a youth development specialist. He began to collect unemployment insurance benefits on December 21, 1997. Fontaine's former employer, however, protested, contending that it had dismissed him "under disqualifying circumstances" -- misconduct. The Unemployment Insurance Administrative Law Judge [ALJ] agreed and on February 20, 1998 disqualified Fontaine because he was terminated for misconduct.

On February 26, 1998 the Department of Labor charged Fontaine with a "recoverable overpayment" of $1,288. Fontaine subsequently requested a hearing. The Unemployment Insurance Appeal Board considered and sustained the decision to charge him with "an overpayment of benefits."

Apparently Fontaine had not objected to the ALJ's determination disqualifying him for unemployment insurance benefits. This proved to be a fatal omission on his part.

The Appellate Division dismissed Fontaine's appeal of the determination that his employment was terminated due to disqualifying misconduct, because he never appealed the ALJ's February 20, 1998 finding and decision concerning this issue. Accordingly, said the court, it had no authority to consider his appeal from this finding.

Note: The Appellate Division also ruled that "the record provides substantial evidence to support the Board's conclusion that claimant was properly charged with a recoverable overpayment of benefits."

The Thomas case

Clearly failing to file an appeal within the Statute of Limitations prevents courts from considering challenges to an administrative determination. As the Thomas case demonstrates, laches -- an unexcused delay -- may also bar an individual from appealing an administrative action.

Jacob S. Thomas, the former Deputy Director of a facility operated by the State Office of Mental Health [OMH], was reassigned to another facility. Unhappy with OMH's action, he filed a law suit in Federal court alleging that his reassignment was discriminatory in violation of the Civil Rights Act of 1964 [Title VII].

While his Title VII action was pending, OMH terminated his employment effective March 17, 1999. Thomas amended his Federal complaint to include allegations that his termination was retaliatory. The relief he demanded: reinstatement to his former position. The federal district court dismissed Thomas' petition on the grounds that his "claims lacked merit."

In February 2000 Thomas asked OMH for a "pretermination hearing in accordance with Civil Service Law Section 75(1)(b). OMH said it would not give Thomas such a hearing. Thomas then filed an Article 78 petition seeking a court order compelling OMH to reinstate him to the position of Deputy Director of Psychiatric Center 2.

A State Supreme Court justice dismissed Thomas' petition. The Appellate Division affirmed the lower court's ruling, stating that because Thomas failed to timely commence his Article 78 proceeding, "Supreme Court quite properly considered whether [he] was guilty of laches."

The Appellate Division explained that this Article 78 action was a "proceeding in the nature of mandamus to compel" and was the appropriate remedy for a discharged employee who claims entitlement to, but did not receive, a pretermination hearing. However, the Statute of Limitations for a discharged employee who has been denied a mandated hearing runs from the date that his or her demand for reinstatement was refused.

Noting that a four-month period is the measure of permissible delay in the making of a demand as was held in Amsterdam City Hospital v Hoffman, 278 AD 292, the court decided that Thomas "had until July 17, 1999 to timely demand a pretermination hearing." Since he failed to make such a demand until February 2000, the Appellate Division concluded that the Supreme Court justice correctly determined that Thomas was guilty of laches -- he delayed too long in demanding a pretermination hearing -- and that his commencement of this Article 78 proceeding was thus untimely. Further, said the court, the four-month Statute of Limitations for the review of such an administrative determination cannot be frustrated by the simple expedient of delaying the demand for a hearing so as to toll the statute, citing Austin v Board of Higher Education, 5 NY2d 430, 442.

Another reason given by the Appellate Division for its decision was that "even assuming that Supreme Court erroneously relied upon laches to dismiss the petition as untimely, the petition nevertheless was properly dismissed as barred by the applicable four-month Statute of Limitations."The court explained that it has been frequently recognized "that the very service of a petition will be deemed a demand and an answer thereto a refusal." Consequently, Thomas' "filing of the second amended complaint in his Federal action on June 1, 1999, which demanded reinstatement, constituted his demand." OMH's answer to the amended complaint constituted a refusal. Accordingly, Thomas' commencing his Article 78 action about 11 months later "was patently untimely."

Full post as published by New York Public Personnel Law on March 07, 2008 (boomark / email).