Summary
rejecting plaintiff's argument that her claim for unlawful termination did not accrue until she received a final determination of her grievance filed pursuant to the terms of the collective bargaining agreement between the defendant and her union
Summary of this case from Cinelli v. Oppenheim-Ephratah Central School DistrictOpinion
No. 2979.
March 4, 2008.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 26, 2007, which, in this action to recover damages for violations of due process pursuant to 42 USC § 1983 and for employment discrimination in violation of Executive Law § 296, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Richard M. Krinsky, Brooklyn, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for respondents.
Before: Nardelli, J.P., Williams, Sweeny and Catterson, JJ.
Plaintiff's cause of action pursuant to 42 USC § 1983 is not viable inasmuch as plaintiff, a nontenured paraprofessional, has no property rights in her position ( see Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 629-630, cert denied 519 US 1150). Nor is there is a "stigma-plus" due process claim since there is no evidence that the reasons for plaintiff's discharge were published by defendants or provided to prospective employers ( id. at 631; see McPherson v New York City Dept. of Educ., 457 F3d 211, 216-217). We also take note that the record demonstrates that plaintiff availed herself of the grievance procedures contained in the collective bargaining agreement, and the availability of a CPLR article 78 proceeding, which plaintiff did not pursue, satisfies due process hearing requirements ( see Matter of Tully Constr. Co. v Hevesi, 214 AD2d 465, 466).
Dismissal of the Executive Law § 296 claim was also proper because plaintiff did not file a notice of claim within three months of her termination ( see Education Law § 3813; Sangermano v Board of Coop. Educ. Servs. of Nassau County, 290 AD2d 498, lv dismissed 99 NY2d 531). Contrary to plaintiff's argument that her claim did not accrue until she had exhausted all administrative remedies, an employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to plaintiff, and the possibility that the determination may be reversed is insufficient to toll the limitations period ( see Cordone v Wilens Baker, 286 AD2d 597, 598).
We have considered plaintiff's remaining arguments and find them unavailing.