MATTER OF BARGSTEDT v. Cornell University

• Decision Date: 17 April 2003
• Citation: 757 N.Y.S.2d 646,304 A.D.2d 1035
• Parties: In the Matter of BONNIE M. BARGSTEDT, Appellant,<BR>v.<BR>CORNELL UNIVERSITY, Respondent.
• Court: New York Supreme Court — Appellate Division

304 A.D.2d 1035

757 N.Y.S.2d 646

In the Matter of BONNIE M. BARGSTEDT, Appellant,

v.CORNELL UNIVERSITY, Respondent.

Peters, J.

Decided April 17, 2003.

Mercure, J.P., Crew III, Rose and Lahtinen, JJ., concur.

Peters, J.

Petitioner's employment with respondent required frequent business trips for which she received reimbursement. After respondent's audit department conducted an investigation regarding possible financial irregularities by petitioner in connection with her submission of duplicate travel vouchers, she met with Robert Gilbert, Associate Dean, along with two members of the audit department. Despite petitioner's protestations that the duplicate submissions were inadvertent, she was terminated effective the following day—August 21, 2001. A letter to petitioner dated September 13, 2001 confirmed her termination.

Petitioner filed a formal grievance pursuant to the "exclusive university procedure for the resolution of job-related complaints and grievances" and respondent conducted a "step I" hearing as required by the policy. After receiving evidence from petitioner, the audit department and other university officials, the Hearing Officer affirmed Gilbert's termination of petitioner. Petitioner appealed this decision and a "step II" hearing was held on November 13, 2001. At such meeting, and again in writing on November 30, 2001, the Hearing Officer requested petitioner to specifically identify the relief she sought. By letter dated December 19, 2001, the Hearing Officer advised petitioner that since she had not responded to his request to particularize the relief sought, he assumed her grievance was withdrawn. Various letters thereafter ensued from petitioner's counsel to either the Hearing Officer or respondent's counsel in an effort to determine when a decision would be rendered. By letter dated April 24, 2002, respondent's counsel reiterated that the grievance was deemed withdrawn as indicated in the letter from the Hearing Officer dated December 19, 2001.

By verified petition dated April 24, 2002, petitioner commenced this CPLR article 78 proceeding requesting, among other things, that Supreme Court compel respondent's written decision or order her reinstatement. In lieu of an answer, respondent moved to dismiss by claiming that the proceeding was untimely and that it failed to state a cause of action. Supreme Court determined, among other things, that the action was time-barred, prompting this appeal.

The statute of limitations for actions brought under CPLR article 78 is four months from the time "such determination became final and binding upon [the petitioner]" (CPLR 217 [1]; see Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000]). While it will be tolled when the grievance procedure is mandatory (see Matter of Patry [Village of Tupper Lake], 262 AD2d 757, 759 [1999], lv denied 94 NY2d 753 [1999]), it will typically not be tolled where a voluntary grievance procedure is employed (see Matter of Queensborough Community Coll. of City Univ. of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926, 926 [1977]; Roufaiel v Ithaca Coll., 241 AD2d 865, 867 [1997]; Matter of Vasbinder v Hartnett, 129 AD2d 894, 895 [1987], lv denied 70 NY2d 606 [1987]).

Focusing on the language of respondent's written policy as the "exclusive university procedure for the resolution of job-related complaints and grievances," petitioner contends that the grievance procedure was mandatory. We disagree. While the policy contains such introductory language, it further provides that any staff member "may utilize this procedure" (emphasis added) for a resolution of a dispute; there is nothing indicating that such grievance procedure was mandatory. Moreover, any...