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CCRI worker’s appeal of firing ruled untimely

carnesjudgewilliamA community college employee could not file a late challenge to her termination despite the fact that she was not notified of her rights until after the 30-day appeal period had expired, a Superior Court judge has found.

The petitioner employee argued that the 30-day period was not triggered until she received delayed notice of her right to file an administrative appeal with the Personnel Appeal Board, or the PAB, of the Department of Administration.

Judge William E. Carnes Jr. disagreed.

“It is troubling to this Court that by the time [the petitioner] received the Termination Action form, which included notice of her right to appeal, the thirty-day appeal period that commenced upon the mailing of her termination letter had ended,” Carnes wrote. “However, there is no requirement that notice of the appeal be included with notice of termination.”

The 12-page decision is Watters v. Department of Administration, Personnel Appeal Board, et al., Lawyers Weekly No. The full text of the ruling can be found by clicking here.

Cranston attorney V. Edward Formisano represented the employee. He was opposed by Jeffrey S. Michaelson of North Kingstown, Providence lawyers George H. Rinaldi and Michael R. McElroy, and Warwick’s Ronald A. Cavallaro.

Firing and aftermath

The petitioner, Robin J. Watters, began working for the respondent Community College of Rhode Island in August 2010 as a temporary employee. In May 2013, she became a full-time senior teller at CCRI’s Providence campus.

In a letter dated Oct. 16, 2013, CCRI’s director of human resources, Sheri L. Norton, informed the petitioner in writing that her employment with CCRI was terminated effective Nov. 1, 2013. The reason given for the termination was a purported failure to properly handle and safeguard cash deposits.

The termination letter explained that the petitioner would remain on administrative leave with pay until the date of her termination. She was told to contact HR with any questions.

Additionally, the petitioner was informed that she could contact her union representative. The termination letter made no mention of her right to appeal the termination to the PAB.

On Dec. 9, 2013, the petitioner received her termination action form, also known as a “CS-5.” The form notified the petitioner of her right to appeal to the PAB within 30 days.

The petitioner filed an appeal of her termination to the PAB on Jan. 7, 2014, which fell within 30 days of the mailing of the termination action form.

The PAB determined that the petitioner’s appeal was untimely filed, finding that she received notice of her termination via the Oct. 16, 2013, termination letter and that the 30-day appeal period began running from that date.

Mandatory deference

The petitioner argued that it was the mailing of the termination action form that triggered the running of the 30-day appeal period, which would mean that her Jan. 7, 2014, appeal to the PAB was timely.

“Ms. Watters was unable, after being given an opportunity, to provide the PAB with any statutory language indicating that the notice of the right to appeal must be included with the notice of termination,” Carnes said.

The judge found not only is there no language in G.L. §36-4-42 requiring an employer such as CCRI to ensure that notice of the right to appeal is included with notice of the termination, but it is “a well-established principle that knowledge of the law is assumed.”

Norton, the HR director, explained that the termination action form is not sent out at the same time as the termination letter because it cannot be completed until balances — including for vacation leave and retirement — are calculated by payroll.

Norton testified that the termination action form “is used … for the purposes of any refunds and payroll issues,” and that such forms “are also processed subsequent to the termination letter.”

Thus, “while the inclusion of the appeal language in the Termination Action form may be confusing, CCRI successfully argued that it was the October 16, 2013 termination letter that constituted notice of Ms. Watters’ termination, and this Court cannot find that such determination was an abuse of discretion or in violation of statutory provisions on the part of the PAB,” Carnes stated.

Though the judge acknowledged that he might have decided the matter differently than the PAB, he said “deference to an agency interpreting its governing statute is mandatory when this Court reviews an agency’s decision.”

Although “Ms. Watters’ situation and the timing of the notice of appeal are concerning, our Supreme Court has held it to be reversible error when a trial justice finds that ‘the administrative agency did not err in any way,’ but then chooses to vacate the decision based upon ‘inherent equitable authority,’” he noted.

Carnes said the PAB “wrestled” with the matter of when the appeal period started running and considered all the evidence and testimony before it.

“Its decision was not an abuse of discretion and must be upheld,” he concluded.

 

CASE: Watters v. Department of Administration, Personnel Appeal Board, et al., Lawyers Weekly No. 61-073-15

COURT: Superior Court

ISSUE: Was an administrative appeal of a community college employee’s termination untimely even though she was not informed of the 30-day limit to file an appeal until more than 30 days after her termination?

DECISION: Yes

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