PINDER v. CITY OF NEW YORK (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.

 Plaintiff's cause of action pursuant to 42 USC § 1983 is not viable inasmuch as plaintiff, a non-tenured paraprofessional, has no property rights in her position (see Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623, 629-630 [1996], cert. denied 519 U.S. 1150, 117 S.Ct. 1083, 137 L.Ed.2d 218 [1997] ).   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 F.3d 211, 216-217 [2006] ).   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 A.D.2d 465, 466, 625 N.Y.S.2d 531 [1995] ).

 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[1];  Sangermano v. Board of Coop. Educ. Servs. of Nassau County, 290 A.D.2d 498, 736 N.Y.S.2d 258 [2002], lv. dismissed 99 N.Y.2d 531, 752 N.Y.S.2d 590, 782 N.E.2d 568 [2002] ).   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 A.D.2d 597, 598, 730 N.Y.S.2d 89 [2001] ).

We have considered plaintiff's remaining arguments and find them unavailing.