“When is it too late to get recourse?”

Question: Four years ago, after 21 years of service to my school district, I was denied a transition year (some people call them sabbaticals) because of an evaluation by an Assistant Principal who was not even certified in my subject.

I was highly qualified, I have a Masters Degree plus 60 Hours of Inservice Credits and had supervised five student teachers. Instead, I chose to retire.

Is it too late for any recourse?

Colorado Springs, Colorado

Answer: Dear Patricia: Sorry to hear about what happened to you. Although your question seems rather simple, it requires a bit of explaining. Here’s my best:  

1. How long a person has to seek recourse for a wrong that happened to them depends, first, on what lawyers call the applicable “Statute of Limitations.” The phrase “Statute of Limitations” means what it sounds like: “Law of Time Limits.” Each state sets “time limits” on certain kinds of legal actions, and how long you have to seek redress depends on the kind of legal action you bring.  

(a) For example, it is most common – but not universal – that lawsuits based on intentional injuries, such as a punch in the nose, must be brought in Court within one year of the injury.

(b) As another example, it is most common – but not universal – that lawsuits based on negligent actions, such as car accidents and medical malpractice – must be brought within three years of the negligence.

(c)  As yet another example, it is most common – but not universal – that lawsuits based on a breach of promise, often called a breach of contract, must be brought within six years of the breach.

2. That said, people are free to agree in writing to either shorten or lengthen those time limits. As a general rule, people are permitted to agree to either shorten or lengthen the time period in which to raise claims and file lawsuits. While this is a right, it has limits; for example, no Court would accept an agreement that gave an employee only three minutes to file a lawsuit, because that would be outside the realm of basic fairness.

3. If you were a member of a teachers’ Union, your Union contract might have such a time-limiting or time-extending provision. I am concerned that you might have, without knowing it, agreed to a shorter period of time in which to bring lawsuits if you were a member of a Union, to which many teachers belong. Different time periods in which to bring claims are often found in Union contracts with employers. If you were a Union member, then you would be subject to any such provisions in your Union contract. If you are a member of a Union, consider speaking with your Union Representative about this possibility.

(Incidentally, if you were a Union member, your Union contract might also limit the avenues you may have to get recourse, most commonly to what is called a “Grievance Procedure.”)  

4. Lawyers often strategize on this point: if your claim is really based in, for example, negligence, which often has a 3-year limit, a lawyer might try to characterize your claim as based in a broken promise, which has a 6-year limit. As the saying goes, “Lawyers will be lawyers.” It is part of the job – and part of the art – of a lawyer to be a zealous and creative advocate. So, if he or she can characterize a claim as based in a legal theory that carries with it a longer statute of limitations, and a statute of limitations that has not run its course, then he or she will justifiably try to do just that. Of course, the “other side’s” attorney can argue back that this is wrong. That is where Judges start to do their own work to analyze the arguments and make legal decisions. This preliminary issue, “Has the statute of limitations run its course, or expired?” is a frequently litigated point of contention.

Determining appropriate legal theories is generally lawyers’ work. You might be wise to consult with a local attorney to assist you on this topic, in particular.

If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in or near your city, just [click here.] Delivered by Email – Instantly!

5. I don’t mean to confuse you, but it is possible to sue a person for “wronging” you and base that lawsuit on several different theories at the same time. Again, we go back to what some would say is the “art” of lawyering. Suppose you paid a person $100 to deliver fresh cod fish to your fish restaurant, and that he or she delivered frozen fish sticks, instead. And suppose that this resulted in losses to your restaurant of $600 in lost business. Suppose, further, that you had no written contract, which might make your proving a contract breach difficult. You might claim your loss was attributable to negligence on the fish-seller’s part, which would give you three years to sue. You might also “plead in the alternative,” that, if it was not negligence, then it was a breach of contract, giving you six years to sue. In Court you are allowed to do just that, “plead alternative theories,” because during pre-trial exchange of documents and oral depositions you may end up finding better proof for one theory than the other. Thus, a good attorney thinks about all of these things, even though he or she may not discuss them with the client. 

6. If your “right” or “expectation” of receiving a transition year was based on a promise, an assurance, a School District policy, or even a reasonably implied representation, you probably have six years in which to seek legal recourse. Failure to fulfill promises, assurances, policies and representations are generally considered kinds of breaches of contract. I am not licensed to practice law in the State of Colorado. However, I did a bit of internet research on the issue, and found that it appears Colorado follows the most common course: it permits lawsuits based on written or oral “agreements” to be filed within six years of the breach.

7. Putting aside the law for a moment, recourse can also be pursued through negotiation; in fact, that is almost always where I suggest my clients begin. Why put yourself through the ordeals of “legal surgery,” with its expense and pain, when perhaps just a “pill” or “procedure” might work just as well, or even better. Also, why not try a “pill” or a “procedure” first; if they don’t work, then you can always pursue a lawsuit – if there is time, that is.  

Might I be so humble as to suggest you consider first sending a respectful, well-written letter to the School Board members about your feelings, and your suggested “recourse.” Because something you may write might later be held against you if litigation ever ensues, you might want to consider showing your drafted letter to an attorney licensed in your locale first, just to make sure he or she sees no significant downside risk.  

Commissions, wages or other monies owed to you by former employer? Your best bet is to make a written request. We offer a Model Letter to show you “What to Say, and How to Say It.”™ To obtain your copy, just [click here.Delivered by Email – Instantly! 

I hope these thoughts are helpful. Four years is an awfully long time to feel that you have been cheated. Don’t forget that “Action is the Antidote to Despair.”    

My Best,
Al Sklover

P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly! 

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© 2013 Alan L. Sklover, All Rights Reserved.

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