U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

Source: New York Municipalities Blog, Harris Beach, PLLC

On March 22, 2017, in Endrew F. v. Douglas County School District, the United States Supreme Court issued a ruling focusing on the appropriate legal standard when determining if  a student with a disability is receiving an appropriate free public education (FAPE) via the student's individualized education program (IEP).

The New York Municipalities Blog item is posted on the Internet at:

https://www.harrisbeach.com/new-york-municipalities-blog/fape-standard-ieps-clarification-attempted-supreme-court/

The Supreme Court's decision is posted on the Internet at:
https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court
Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2017 NY Slip Op 03850, Appellate Division, First Department

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014."

The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but, citing Tucker  v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

The court explained that Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR Article 78 and thus Supreme Court "erred in relieving [Petitioner] of her obligation to exhaust her administrative remedies."*

In any event, said the court, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason." Upon such termination "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden."

In this instance the Appellate Division found that the record indicated that Petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records.

As to Petitioner's claim of the investigator's delay in publishing the written report concerning the matter, the court said that such delay "amounted to a mere technical violation of the collective bargaining agreement," as Petitioner had received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report. The Appellate Division then opined that Supreme Court's "conclusion of bad faith stemming from the lateness of the report was purely speculative."

* However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of his or her administrative remedies is not required where his or her so doing would constitute an exercise in futility.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03850.htm

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

MTA Bus Co. v New York State Div. of Human Rights, 2017 NY Slip Op 03903, Appellate Division, First Department

The New York State Division of Human Rights [SDHR] found that the MTA's policy of disqualifying all employees with bipolar disorder from working as a bus operator was an unlawful discriminatory act. The Division order MTA to pay a civil fine and penalty of $30,000. MTA appealed and the Appellate Division unanimously annulled the Division's decision and dismissed the complaint.

The Appellate Division noted that the record demonstrates, and the SDHR determined, that the "employee complainant" [Complainant], a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder and ultimately terminated from his position. The record also indicated that Complainant had a "reckless driving record and that MTA dismissed him for his conduct in vandalizing three buses in passenger service." The court held that MTA "was justified" in terminating Complainant.

The court, however, said that rather than dismissing the complaint, SDHR proceeded to conclude that "[b]ecause MTA has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [MTA] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [MTA's] policy violates the Human Rights Law."

SDHR had not advised MTA that its policies with respect to the employment of individuals with a bipolar disorder were going to be reviewed. Such failure on the part of SDHR, said the court, denied MTA its right to due process.

The Appellate Division explained that although SDHR, its own motion, may investigate and file a complaint alleging discriminatory practices, it did not do in this instance. Rather, while investigating the bus operator's complaint, which was filed solely on his behalf and found that he had not been discriminated against, SDHR could not "and at the same time," make broad findings of fact and impose broad sanctions pertaining to MTA's "over-all operations."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03903.htm