Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Decisions of the Commissioner of Education, Decision No. 17,137

Petitioner [M] appealed the decision of the School Board [Board] terminating her employment as the result of "the abolishment of her position."

At the time of this appeal the district employed three teachers, M held a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate. On September 1, 1998, M had been given a probationary appointment in the position of Teacher - Primary Grades and granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001. 

The other staff members at this time consisted of two teachers, C and N, and two teaching assistants.  C was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure effective September 1, 2012.  N, the then third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Effective July 1, 2004, M was designated as a Teacher on Special Assignment with a "Teacher Center." Although M served as the Director at the Teacher Center, she remained an employee of the district, was continued on its payroll and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her "district-paid compensation" by the Teacher Center.

At its April 15, 2014 meeting, the Board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” and the two teachers then in service, C and P, were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  N, the third teacher on staff, had been appointed as a probationary teacher in the Elementary Education K-6 tenure area effective September 1, 2011 and her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far with the district was credited in the new, hybrid tenure area and she was subsequently granted tenure effective September 1, 2014. M, however, was retained in the K-6 Elementary tenure area.

P resigned and by letter dated May 21, 2014, M advised the district of her intention to return to the district in the fall. M was then notified that the position she was seeking to fill upon her return required a special education certification, which certification M did not then possess.  However, M notified the district she would possess the necessary special education certificate by the beginning of the 2014 school year. On August 18, 2014, M was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, the board voted to abolish one teaching position in the Elementary Education K-6 tenure area effective June 30, 2015 and M was determined to be the least senior teacher in that tenure area. As a result M was excessed, effective June 30, 2015. 

M, asserting that she was the most senior teacher in the district, appealed her being excessed to the Commissioner of Education, seeking reinstatement with full salary and benefits, retroactive to June 30, 2015.  M contended that the Board’s actions granting retroactive tenure and seniority credit to C and N in the new “hybrid” tenure area was illegal, arguing that the board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of these two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvented her tenure and seniority rights. 

The Board, in rebuttal, [1] raised a procedural issue, contending that M's appeal must be dismissed "for failure to join necessary parties," and [2] contended that its creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.

  

In support of its claim that necessary parties had not been served, the Board argued that there were two teaching assistants in the district that work under the supervision of  C and N and should M prevail and be reinstated, “the likely result” will be the excessing of  N, and one or both of the teaching assistants for budgetary reasons.

Noting that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense, the Commissioner rejected the Board's argument that M's appeal must be dismissed for failure to join necessary parties, .

Here the Board eliminated a position in the Elementary Education K-6 tenure area as a result of which M was excessed and to which she seeks reinstatement.  Teaching assistants, explained the Commissioner, hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher and do not serve in the same tenure area as a classroom teacher such as M.  Thus, such individuals will not, as matter of law, be affected should M prevail in this matter. The Commissioner pointed out that Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 

Further, the Commissioner said that the Board's "speculation as to how the district would resolve a budgetary issue should M prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents."

Turning to the merits of M's appeal, the Commissioner acknowledged the Board's argument that the district was exempt from the tenure areas requirements set forth in Part of 30 of the Rules of the Board of Regents "because it employs fewer than eight teachers." However, said the Commissioner, the Board is still subject to Education Law §3012-a, which defines the elementary tenure area.

 

Significantly, the Commissioner observed that §3012-a provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.” The Commissioner pointed out that, as a matter of law, "all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district."

Another consideration: the Commissioner observed that a “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as the Board attempted to create in this case. 

In the words of the Commissioner, the Board "had no authority to create such hybrid tenure area" and its April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of C and N to that “hybrid” tenure area, was not permissible "and void ab initio."  This meant that C and N remained in the Elementary Education K-6 tenure area for the purposes of determining seniority in the event of a layoff.

Noting that when abolishing a position in the Elementary Education K-6 tenure area the Board, was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished,” the Commissioner said that, based on her findings, C and N never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area. Rather they remained in the authorized Elementary Education K-6 tenure area and the Board must calculate the seniority of M, C and N as of April 16, 2015, in the Elementary Education K-6 tenure area. 

Further, if the Board finds that M was not the least senior teacher in that tenure area, it must reinstate her to her position with back pay and benefits effective June 30, 2015.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17137

_______________________________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

_______________________________ 

  

An agreement to submit a dispute to arbitration will be enforced by the court

An agreement to submit a dispute to arbitration will be enforced by the court

Adams v Metropolitan Transp. Auth., 2017 NY Slip Op 05946, Appellate Division, Second Department

As a general rule, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. Further, a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate.

In a proceeding pursuant to CPLR Article 75 to compel arbitration Supreme Court granted the petition directed the parties to proceed to arbitration. The Appellate Division affirmed the lower court's ruling.

As to the genesis of this Article 75 action, since 1973, Nassau County provided bus service for the County through an operating agreement with a subsidiary of the Metropolitan Transportation Authority [MTA], the MTA-Long Island Bus [MTA-LIB]. The operating agreement set out various protections that were set forth in various agreements, known §13(c) agreements, which included arbitration provisions.

In 2011, MTA discontinued its bus service in the County and the County contracted with Veolia Transportation Services, Inc. [Veolia] to provide bus services. Veolia agreed that the §13(c) agreements that had been entered into by the County would continue. These agreements provided for arbitration of claims by the employees of the bus service.

Certain employees of the MTA-LIB were terminated and subsequently hired by Veolia. These employees, contending that as a result of moving their employment to Veolia they encountered "negative employment consequences" that were compensable under the §13(c) agreements, demanded that their complaints be submitted to arbitration.

The Appellate Division said that Supreme Court had correctly determined that MTA, MTA-LIB, the County and Veolia "had all clearly and expressly agreed to arbitrate the claims alleged by the former MTA-LIB employees pursuant to the §13(c) agreements and that any conditions precedent to seeking arbitration had been satisfied."

Accordingly, the Appellate Division found that the lower court had properly granted the former MTA-LIB employee's petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05946.htm

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

United States Court of Appeals, 2nd Circuit, Docket #16-3140

The Second Circuit US Court of Appeals ruled that "a notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination."

Citing two decisions by the Supreme Court, Delaware State College v Ricks, 449 U.S. 25 and Chardon v Fernandez, 454 U.S. 6, the Second Circuit held that plaintiff's notice of termination in this case may, itself, constitute an adverse employment action notwithstanding its revocation before it became effective for the purpose of litigating an alleged unlawful discrimination or other claim.

Although in this action the court found that the rescission of a notice of termination given to an employee may not constitute an adverse employment action and other facts alleged in the complaint "were insufficient to establish constructive discharge nor a hostile work environment," the court found that the plaintiff did state a plausible claim of "discriminatory termination and interference with her FMLA rights."

The Circuit Court remanded the matter to the district court for the purpose of the lower court reconsidering " ... its decision to decline to exercise supplemental jurisdiction over the [plaintiff's] state and city law [unlawful discrimination] claims."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/doc/16-3140_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 11, 2017

Click on text highlighted in color  to access the full report 

Grievance reveals possible Hatch Act violations

Despite his racist comments toward replacement workers, firing picketer violated NRLA

Head Start grant recipient must repay $1.3M used for employee bonuses

Employer can’t avoid $305K in penalties for Form I-9 and other INA violations

Waffle House’s arbitration agreement included valid delegation clause supporting motion to compel

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following items have been issued:

Comptroller DiNapoli and A.G. Schneiderman Announce 2 to 6 Year Prison Sentence for Former Councilman Ruben Wills in Public Corruption Scheme

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of former New York City Councilman Ruben Wills to 2 to 6 years in prison; Wills was also ordered to pay nearly $33,000 in restitution and a $5,000 fine.

Former Town of Minerva Clerk Pleads Guilty

Jordan Green, the former clerk to the supervisor for the town of Minerva, pleaded guilty to fourth degree grand larceny, official misconduct and tampering with public records, after an investigation and audit found she stole thousands of dollars from the town.

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research Director Ezra Schwartzberg has announced that the organization has posted its Annual Adirondack Research Newsletter, In the Field, on the Internet in the unique form of a StoryMap – a medium that allows the organization to bring its 2017 newsletter to life using maps, photos, graphics, video and text.

The Newsletter is best viewed on a computer, but may be read on a smartphone turned sideways. Click here to view the newsletter: http://arcg.is/1XiKb0

Information about Adirondack Research is posted on the Internet at http://adkres.org/.

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence 

2017 NY Slip Op 02270, Appellate Division, Fourth Department

A  police officer [Petitioner], filed a CPLR Article 78 petition seeking to annul the determination of the Hearing Officer that he was medically qualified to perform his light duty assignment and thus not entitled be continued on  General Municipal Law §207-c leave.

Petitioner was receiving benefits pursuant to §207-c as a result of prior on-duty injuries. Returning to work in a light-duty capacity, Petitioner twisted his ankle while at work and allegedly exacerbated his prior injuries.

Following a hearing, the Hearing Officer determined that Petitioner was able to perform his light-duty assignment notwithstanding the injury to his ankle and thus Petitioner was not totally disabled. Accordingly, the employer discontinued Petitioner's §207-c leave status.

The Appellate Division said it agreed with Petitioner's employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties to which he was assigned was supported by substantial evidence.

The court said that although Petitioner presented evidence suggesting that he was not able to work at all, "the Hearing Officer instead credited other evidence that Petitioner could perform a light-duty assignment" and unanimously dismissed the petition.

In the words of the Appellate Division, "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and a court "may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

__________________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

__________________________  

 

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

2017 NY Slip Op 06040, Appellate Division, Third Department

Claimant, a teaching assistant, filed a claim for unemployment insurance benefits after she was "laid off from her job" in April, 2015.

The Department of Labor initially found Claimant eligible to receive benefits, but this determination was overruled by an Administrative Law Judge [ALJ] in October 2015 following a hearing. Claimant appealed and, in March 2016, Claimant was notified that the Unemployment Insurance Appeal Board had reversed the ALJ's decision and found that Claimant was eligible to receive such benefits.

While her appeal was pending, however, Claimant "failed to certify" for benefits between December 21, 2015 and March 6, 2016 in accordance with Labor Law §596 and the Department found her ineligible for benefits during this time period.

This Department's determination was sustained by an ALJ following a hearing. The Board affirmed the ALJ's ruling, explaining that the Claimant was ineligible to receive unemployment insurance benefits because she did not comply with Labor Law §596 certification and registration requirements.

Claimant had contended that she "failed to certify" during the time period in question because she did not feel comfortable doing so "given the ALJ's decision finding her ineligible for benefits." Claimant, however,  admitted that both the Unemployment Insurance Handbook and the ALJ's decision advised her that she should continue to certify for benefits while her case was on appeal and that "she made a mistake by not doing so."

The Appellate Division denied Claimant's challenge to the Board's ruling, explaining that "[i]t is well settled that registering and certifying for benefits in accordance with the Labor Law and applicable regulations is a necessary prerequisite to eligibility for benefits." Further, said the court, "[w]hether good cause exists to excuse a claimant's noncompliance with these requirements is a factual issue for the Board to resolve."

The Appellate Division held that, considering the relevant facts in this case, substantial evidence supported the Board's finding that good cause did not exist to excuse Claimant's "failure to certify" and its conclusion that she was ineligible to receive benefits. Thus, said the court, it "found no reason to disturb the Board's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06040.htm

From the LawBlogs

From the LawBlogs

Source: Findlaw ADA, August 9, 2017

Esparza v. KS Industries, L.P.  -(California Court of Appeal) - Affirming an order denying the motion to compel arbitration insofar as it denies arbitration of the Private Attorneys General Act representative claims seeking civil penalties that are paid to the Labor and Workforce Development Agency and directing additional proceedings to determine the plaintiff's intent regarding their pursuit of other claims in the case of a former employee alleging employment violations.

Keep Reading

Baker v. Italian Maple Holdings, LLC - (California Court of Appeal) - Reversing the trial court's order denying defendant's motion to compel arbitration in the case of a woman entered into a nursing facility who executed an arbitration agreement that included a 30-day cooling off period for rescission during which time she died because the fact of her death did not render the agreements unenforceable.

Keep Reading

Kaiser Foundation Health Plan, Inc. v. The Superior Court of Los Angeles County - (California Court of Appeal) - Issuing a preemptory writ of mandate directing the trial court to vacate a judgment confirming an arbitration panel's award and entering a new order dismissing a petition to vacate the award because the award was not an award for which the court held jurisdiction to confirm.

Keep Reading

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability

The party seeking workers' compensation benefits bears the burden showing a causal connection between his or her employment and the claimed disability

2017 NY Slip Op 06013, Appellate Division, Third Department

A firefighter [Claimant], diagnosed with prostate cancer at the age of 51, filed a claim for workers' compensation benefits alleging that he was exposed to toxic fumes and asbestos as a firefighter and that he contracted prostate cancer as a result.

The claim was controverted* and ultimately the Workers' Compensation Board determined that the medical opinions in the record supporting a finding of causal relationship were unconvincing and speculative and, therefore, insufficient to support a finding of causal relationship between Claimant's prostate cancer and his employment as a paid firefighter.

Claimant appealed the Board's determination. The Appellate Division sustained the Board's determination, explaining that "... the party seeking benefits ... bore the burden of establishing — by competent medical evidence — a causal connection between his [or her] employment and the claimed disability."** Further, said the court, "[w]here medical proof is relied upon to demonstrate the existence of a causal relationship, it must signify a probability of the underlying cause that is supported by a rational basis and not be based upon a general expression of possibility."

According to the decision, Claimant responded to about 577 fire calls, which included roughly 100 actual fires, over his 24-year career as a firefighter, and he filled out an exposure report on at least four occasions when he felt that he had been exposed to something out of the ordinary. Claimant, however, indicated that he is not specifically aware of the various chemicals or toxins to which he might have been exposed.

The record also indicated that Claimant had periodically working for a friend in the plumbing and heating business to clean furnaces and other related tasks and that "prior to becoming a firefighter Claimant was employed as a deliverer of kerosene for at least eight years."

One expert testified that "epidemiologic studies have demonstrated an increased risk of prostate cancer among firefighters and that [Claimant], over his 24-year career, would have had ample time for exposure to carcinogenic materials."

A second expert testified that "the epidemiological studies linking firefighting and certain types of cancer fail to adequately examine environmental and demographic factors that would affect the risk of cancer" and that "it was not possible to definitively ascertain whether Claimant's prostate cancer — a "very common disease" among men — was caused by his employment as a firefighter given the lack of information regarding what Claimant was specifically exposed to while fighting fires."

A third expert, an oncologist appointed as the impartial specialist by the full Workers' Compensation Board, reported that, based upon his review of the relevant records, there was no evidence of any elevated risk factors typically associated with prostate cancer and that the incidence of new cases of prostate cancer in Claimant's "age group is well under 0.5%. Although this expert concluded that it was "reasonable to assume that [Claimant's] employment as a firefighter for 24 years may have [had] a causal relationship to the development of prostate cancer," he also testified that he "was unaware of Claimant's other previous employment consisting of cleaning furnaces and delivering kerosene or of the minimal number of exposure reports submitted by Claimant during his 24-year career as a firefighter and that, upon being apprised of this information, he could not assign a causal relationship."

The Appellate Division found that, in consideration of the conflicting evidence, "including the prevalence of prostate cancer and the other possible explanations for Claimant contracting the condition," the Workers' Compensation Board "acted within its discretion" in characterizing as speculative, and ultimately rejecting, the reports of two of the experts who testified to the existence of a causal relationship.

In the words of the majority of the court, Judge Egan dissenting, "Absent sufficient medical evidence to establish a causal relationship between [Claimant's] employment and his condition, we are unable on this record to conclude that the full Board's determination lacked a rational basis and was not supported by substantial evidence."

* An insurance carrier can contest, i.e., controvert, a Workers' Compensation claim for a variety of reasons, including, but not limited to, alleging that the injury was not related to work, was self-inflicted or the employee is not injured to the extent that he or she is claiming. An employer can also request that the insurance carrier contest the claim.

** The court also noted General Municipal Law §207-kk creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers incurred them in the course of performing his or her duties, "thereby eliminating the burden of proving causation" on the firefighter and places the burden of rebutting the presumption on the party controverting the claim. However, the explained the court, because §207-kk applies only in the event of the total or partial disability or death of a paid member of a fire department employed by cities have a population of one million or more, "the presumption is inapplicable here."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06013.htm

___________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

___________________

Two New York federal judges refuse to dismiss website accessibility cases

Two New York federal judges refuse to dismiss website accessibility cases

By Kristina M. Launey, Esq. and Minh N. Vu, Esq.

Two New York federal judges recently said that the ADA covers websites (even those not connected to a physical place) and one held that working on improving the accessibility of one’s website does not make the ADA claim moot.

The article by Ms. Launey and Ms. Vu of Seyfarth Shaw is posted on the Internet at:

http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&utm_campaign=87a87c35f5-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_decb46f1f5-87a87c35f5-72622305

Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII

Second Circuit Court of Appeals to again consider if discrimination based on sexual orientation is prohibited by Title VII

Zarda v Altitude Express dba Skydive Long Island, USCA, Docket No. 15-3775

In Simonton v Runyon, 232 F.3d 33,* the Second Circuit said that "[w]hen interpreting a statute, the role of a court is limited to discerning and adhering to legislative meaning." The court then ruled that "[t]he law is well-settled in this circuit and in all others to have reached the question that Simonton has no cause of action under Title VII [the Civil Rights Act of 1964] because Title VII does not prohibit harassment or discrimination because of sexual orientation."

The Second Circuit Court of Appeals has voted to conduct an en banc** rehearing of a three-judge panel’s decision in Zarda v Altitude Express*** declining Zarda's request that it overturn Simonton, a 2000 decision by the Second Circuit.

Following disposition of Zarda's appeal by the three judge panel, a judge of the Court requested a poll be taken on whether to rehear the case en banc. A poll was conducted and a majority of the active judges of the court voted in favor of rehearing Zarda's appeal en banc and it was so ordered.

However, rehearing Zarda's appeal en banc may present additional arguments for the Appellate Division to consider.

It has been reported that the U.S. Department of Justice will file an amicus brief contending that Title VII does not include protection against discrimination based on sexual orientation while it has been also reported that the Equal Employment Opportunity Commission will file an amicusbrief arguing that Title VII does prohibit discrimination based on the sexual orientation of the individual.  

* The decision in Simonton v Runyon  is posted on the Internet at: http://caselaw.findlaw.com/us-2nd-circuit/1203810.html

** A case heard by all the judges of a court rather than by a panel of judges selected from the entire court is said to heard en banc

*** This decision of the three-judge panel is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/02005163-716c-4bb0-b79e-98cea4c57069/1/doc/15-3775_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/02005163-716c-4bb0-b79e-98cea4c57069/1/hilite/