Diversity education effort results in allegations of “intentional infliction of emotional distress”

Diversity education effort results in allegations of “intentional infliction of emotional distress”
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803

Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”

According to the decision by the Appellate Division:

While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“

Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”

The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”

One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.

As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
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OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee

OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10

An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.

Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.

ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.

However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.

Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.

Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
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Dismissed probationer required to prove that his or her termination was for an improper reason

Dismissed probationer required to prove that his or her termination was for an improper reason
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department

Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.

Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:

1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and

2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;

Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:

1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and

2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.

Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL

Use of hearsay testimony in disciplinary actions permitted

Use of hearsay testimony in disciplinary actions permitted
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805

James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”

The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.

Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
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