Leave for religious holidays

Leave for religious holidays

Burns v The Warwick Valley CSD, USDC, SDNY, 166 F. Supp. 2d 881

Warwick Valley Central School District teachers sued the district contending that the district's policy of asking about the religious tenets of employees' religion before granting “personal leave” for religious observances was unconstitutional. The teachers asked federal district court Justice McMahon to bar the district from making such inquiries in the future.

According to the teachers, the district's “new policy” implementing a Taylor Law contract in connection with the use of personal leave for religious observances provided for the district to first inquire about “formal religious practices of an applicant's organized religion.” If the District saw no conflict between those practices and working hours, it then made an inquiry testing the sincerity of the teacher's beliefs.*

The court ruled that the teachers did not show that the district's policy is likely to cause them recurring injury, noting that the parties stipulated that the district has given teachers all the leave they have requested since the new policy was implemented. This, said the Federal District Court, meant that the teachers did not have standing to sue, and granted the district's motion for summary judgment.

* In Port Washington USFD v Port Washington TA, 268 A.D.2d 523, motion for leave to appeal denied, 95 N.Y.2d 761, the Appellate Division ruled that a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment. 

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

This case arose when Vincenza Mennella attempted to obtain court approval to file a late notice of claim in order to sue the Uniondale Union Free School District to recover damages for alleged racial discrimination and “fraudulent inducement.”

Mennella was still in her first year of a three-year probationary period when the school board voted to terminate her employment as the Dean of Students at the Uniondale High School.

As a condition precedent to commencement of a legal action against a school district, Section 3813(1) of the Education Law requires that a written verified claim be presented to the governing body of the school district within three months of accrual of the claim. Such a notice of claim must provide the school district with information as to the nature of the claim, the time when, the place where, and the manner in which, the claim arose as well as the essential fact concerning the claim.

In the Mennella case, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

According to the ruling, six days after the school district terminated Mennella's probationary employment, she filed a petition with the Commissioner of Education seeking review of that determination.

Mennella's petition to the Commissioner of Education included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were “baseless”.

The Appellate Division said that the petition to the Commissioner of Education constituted the functional equivalent of a notice of claim with respect to the Mennella's allegations of racial discrimination.

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Matter of Lamb v Town of Esopus, 35 AD3d 1004, 827 N.Y.S.2d 307

The Lamb case raised two issues addressed by the Appellate Division. The first is relatively common, dealing with the abolishment of a position. The second is relatively rare: a claim that the doctrine of legislative equivalency was not applied in this case.

The Town of Esopus abolished the full-time building department aide position held by Debra L. Lamb and established two part-time positions instead. Lamb sued, seeking a court order directing Esopus to reinstate her to her former position with back pay and benefits. Supreme Court dismissed Lamb’s petition and the Appellate Division affirmed the lower court’s action.

Esopus claimed that it restructured its building department to keep down costs and increase efficiency. This, it contended, required elimination of Lamb’s full-time position. The Town also argued that Lamb did not have any tenure status in her position, which was a position in the non-competitive class.

The Appellate Division said that once the Town came forward with prima facie evidence that Lamb was not entitled to Civil Service Law protection, the burden shifted to her to raise a triable issue of fact regarding her entitlement to such protection. This, said the court, she failed to do.

While Lamb had been employed the Town for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years, a threshold requirement for tenure in the position (see Civil Service Law §75 [c]).*

Further, said the court, even had Lamb enjoyed the benefits accorded non-competitive class employees by §75.1(c) the Town could eliminate her position for purposes of economy or efficiency. It was Lamb’s burden to demonstrate that the elimination of her position was motivated by bad faith or was a subterfuge. Her efforts to meet this burden by contending that the Town failed to prove any cost savings resulted from its reorganization of the building department and elimination of her full-time position was rejected by the court.

The Town, said the court, showed that the reorganization increased efficiency by permitting it to hire a full-time building inspector by “transferring the benefits previously provided to [Lamb's] position.” The Town also said that the hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office.

The Appellate Division said that Lamb failed to meet her burden of overcoming the Town’s bona fide reasons for eliminating her position.

Lamb also argued that the elimination of her position violated the doctrine of legislative equivalency. Under that doctrine, said the court, "a position created by a legislative act can only be abolished by a correlative legislative act,” citing Matter of Torre v County of Nassau, 86 NY2d 421 and other cases.

According to the decision, it appears that Lamb’s position was created in January 2001 by a resolution providing for the “appointment of officers and employees,” and the same full-time position was eliminated when the Town enacted a resolution providing for the “appointment of officers and employees” in January 2005. As the position was created and abolished by the same means, the court said that the Town had acted in accord with the principle of legislative equivalency.

* Civil Service Law Section 75.1(c) provides that “an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential** or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy….”

** N.B. “confidential” within the meaning of Section 75.1(c) is not the equivalent of  “confidential” as that term is used in Article 14 of the Civil Service Law; the Taylor Law.

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Public employer may be liable for damages suffered as a result of negligent supervision and negligent retention of its employees

Gray v Schenectady City School Dist., 2011 NY Slip Op 05925, Appellate Division, Third Department

One of the defendant in this action, Steven Raucci, was employed by the Schenectady City School District) as its director of facilities. Raucci, however, did not appeared in this action as “In April 2010, he was convicted of 18 felony counts, including several for conduct against plaintiffs and their property during the time when he was employed by [Schenectady City School District].”

The Grays’ complaint alleged Raucci and the school district inflicted intentional emotional distress. In addition, their compliant charged the school district with “negligent 

In this appeal the school district argued that Supreme Court should have dismissed the complaint with respect to it.

The Appellate Division agreed in part, noting that “a claim of intentional infliction of emotional distress” requires the plaintiff to allege more than conduct that causes inconvenience or embarrassment, even if such conduct continues for a protracted period of time. The complaint, said the court, must also allege that the defendant's conduct was "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [was] utterly intolerable in a civilized community."

Although the court found that “Liberally construed,” the Grays’ allegations were sufficient to state a cause of action of intentional infliction of emotional distress against Raucci, the Appellate Division held that the school district’s “mere inaction after receiving complaints about Raucci's behavior” cannot be considered the type of extreme and outrageous conduct that is "utterly intolerable in a civilized community." Further, said the court, Schenectady could be held vicariously liable for Raucci’s tortious actions only if he committed them in furtherance of school district’s business and within the scope of his employment.

Thus, concluded the Appellate Division, Supreme Court should have granted the part of defendant's motion seeking dismissal of the first cause of action against it. 

Supreme Court, however, properly denied the part of the school district’s motion seeking to dismiss the causes of action alleging negligent supervision and negligent retention of Raucci. 

The Appellate Division explained that such claims require allegations that the school district knew or should have known of “its employee's propensity to engage in the conduct that caused the [Grays’] injuries, and that the alleged negligent supervision or retention [of Raucci] was a proximate cause of those injuries.” 

In this instance the Grays alleged that Raucci vandalized their property and threatened their personal safety. Such alleged conduct, said the court, certainly appears to fall outside the scope of his employment. Further, the Grays alleged that Raucci used the school district’s computers, material and personnel to harass and intimidate them and that, even after Schenectady was informed of Raucci's conduct targeting them, it failed to investigate or discipline him. 

The Appellate Division concluded that the complaint filed by the Grays “sufficiently alleged that [Schenectady’s] negligent supervision or retention of Raucci permitted him continued access to the means to carry out his actions, which caused [the Grays] injuries.” Accordingly, the Appellate Division ruled that Supreme Court “correctly refused to dismiss the second and third causes of action.” 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05925.htm

Only a governmental not-for-profit corporation’s records is subject to FOIL

Only a governmental not-for-profit corporation’s records is subject to FOIL

Matter of Rumore v Board of Educ. of City School Dist. of Buffalo, . 35 A.D.3d 1178

Philip Rumore, president of the Buffalo Teachers Federation, sought a court order directing the Board of Education of the City School District of Buffalo (Board) and the Education Innovation Consortium [EIC] to provide him with certain records and information pursuant to the Freedom of Information Law [FOIL] (Public Officers Law Article 6). The records sought included EIC’s salary and budgetary records.

Supreme Court granted Rumore’s petition in part by directing the Board to obtain those records from EIC and then to make them available to Rumore for copying. The Appellate Division disagreed and ruled that the lower court should have dismissed Rumore’s petition in its entirety.

The ruling points out that FOIL requires the disclosure of the records of an “agency”. The term “agency” is defined as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law §86 ).

Although a not-for-profit corporation may fall within the definition of an agency subject to FOIL if its purpose is governmental and it has the attributes of a public entity, here, said the court, the record demonstrated that EIC does not have those attributes.

Among the elements the court found persuasive in finding that EIC was not a governmental body were the following:

EIC's budget is not approved by any governmental agency;

EIC has a self-elected Board of Directors;

The School District has no authority to hire or discharge any employee of EIC;

EIC did not have offices in any District-owned building;

EIC provides services to the District on a fee-for-services basis; and

EIC provides services to other clients as well as the District

Thus, said the court, Supreme Court “erred in concluding that EIC is an agency subject to the mandates of FOIL.”

In addition, the Appellate Division said that it agreed with the arguments advanced by the Board and EIC that because the records sought by Rumore are not "kept, held, filed, produced or reproduced by, with or for" the District by EIC, they do not fall within the ambit of FOIL.