Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Peries v NYC Board of Education, USDC, EDNY, 97 CV 7109(APR), 2001 WL 1328921

Vincent Peries was born in Sri Lanka in 1933. After he came to the United States in 1968, he received a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and a M.Sc. in Teaching English as a Second Language. After teaching at several colleges, he taught at several New York City public schools, including at Francis Lewis High School. At Francis Lewis Dr. Peries taught special education courses, working in both a resource room setting, where students receive individual assistance, and in self-contained classes.

Dr. Peries' Title VII and 42 USC 1981 complaints alleged that since the early 1990s, he has been subjected to a “steady barrage of insults and demeaning conduct from students based on [his] national origin and race.”

Federal District Court Judge Ross said that Peries' claim in this case is unusual in that the alleged harassment was not by co-workers, but by Peries' students and neither party identified any litigation involving this type of harassment. Judge Ross said the “most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer.”

In one case involving employees harassed by their employer's customers, Quinn v Green Tree Credit Corp., 159 F.3d 759, the U.S. Circuit Court of Appeals, Second Circuit, held that in such situations “such a duty can be no greater than that owed with respect to co-worker harassment.” In Quinn, the court referred to 29 CFR 1604.11(e), which provides:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the [EEOC] will consider the extent of the employer's control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.

Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a situation. In Davis v Monroe County Board of Education, 526 US 629, the Supreme Court held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment.

As to Dr. Peries, the court said that he can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.

Dr. Peries has shown the existence of a hostile work environment. The second issue: whether school officials took appropriate remedial action is a question of fact, not law.

The jury's analysis of this question can include such issues as what disciplinary options are available short of student suspension and what constitutes a proper division of student disciplinary responsibility between administrators and teachers.

Although Peries has failed to state a prima facie case with respect to his allegations that any school officials harassed him, his claim that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action may go to a jury.

Accordingly Judge Ross ruled that Dr. Peries' Title VII hostile work environment claim against the Board of Education survived, but his civil rights claims against the individual defendants must be dismissed.

The Marriage Equality Act and New York State Taxes

The Marriage Equality Act and New York State Taxes
 Source: New York State Department of Taxation and Finance

A document explaining the tax implications of New York's Marriage Equality Act has been posted on  the New York State Department of Taxation and Finance's Web site at http://www.tax.ny.gov/pdf/memos/multitax/m11_8c_8i_7m_1mctmt_1r_12s.pdf

The document explains that all marriages, whether of same-sex couples or different-sex couples, will be treated equally under all laws of the state.

Accordingly, the Act applies to all taxes administered by the Tax Department as of the effective date of July 24, 2011.

Layoff, reinstatement and tenure by estoppel considered

Layoff, reinstatement and tenure by estoppel considered
Decisions of the Commissioner of Education, Decision #16256

Full text of the decision

1. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

2. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.



KING, JR., Acting Commissioner.--On or about March 31, 2009, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity as a reading teacher (“Dickinson I”).  In a separate appeal commenced on or about July 22, 2009, petitioner challenged the actions of the board terminating her employment (“Dickinson II”).

On June 30, 2010, a decision was rendered, consolidating the two appeals (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082) and concluding in Dickinson I that the board violated petitioner’s rights when it failed to recall her to the vacant reading teacher position created in the 2008-2009 school year and ordering that she be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008; and, concluding in Dickinson II, that when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a and, therefore, was properly terminated on July 28, 2009.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed the decision to Supreme Court, Albany County.  In a decision dated February 22, 2011, the court ordered that the petition be granted solely to the extent of vacating the Commissioner’s determination in Dickinson II and remanded the matter to the Commissioner “for clarification on the effect of his determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II and the basis upon which such determination is made.”[2]  Accordingly, as remanded by the court, I have considered petitioner’s tenure claims in Dickinson II in light of Dickinson I.

Pursuant to §276.5 of the Commissioner’s regulations, respondent board submitted a memorandum of law addressing the effect of the decision in Dickinson I on petitioner’s tenure status.[3]  The board alleges that the decision in Dickinson I properly did not interfere with its authority to grant or withhold tenure from petitioner.  The board seeks a determination that its recall and termination of petitioner as a probationary teacher was proper, that petitioner did not obtain tenure by virtue of Dickinson I and that petitioner is entitled only to the salary, seniority and benefits of a probationary reading teacher as of September 1, 2008 until her termination on August 31, 2009, less any compensation she received in the interim.

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district, subject to a two-year probationary period.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Dickinson I held, inter alia, that the board violated petitioner’s rights when it failed to notify and recall her to an elementary school reading teacher position created for the 2008-2009 school year and ordered that petitioner “be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.”

Petitioner’s reinstatement on September 1, 2008 by order pursuant to Dickinson I did not result in her acquiring tenure in the district.  As previously noted in Dickinson II, in Remus v Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), the Court of Appeals held that a board of education resolution that grants tenure to a teacher effective on a specified future date “confers tenure upon the teacher only as of that specified future date.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  There is no dispute that petitioner’s teaching position was properly abolished on June 30, 2007, prior to the August 31, 2007 effective date of the conditional tenure appointment on August 31, 2007.  Therefore, petitioner’s tenure never took effect.

Consequently, when petitioner was “recalled and appointed” as of September 1, 2008, by virtue of the order in Dickinson I, it was to a probationary position in the reading tenure area.  Although she was awarded back pay, petitioner never rendered any further actual service in that tenure area.  Therefore, petitioner was a probationary employee when the board acted to recall her to a reading position on June 23, 2009 and simultaneously rescinded her conditional tenure appointment.  Accordingly, petitioner was a probationary employee when she was terminated by respondent and was not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a.
Nor does the decision in Dickinson I result in petitioner acquiring “tenure by estoppel”. 

“Tenure by estoppel ‘results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term’” (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446, citing Matter of Lindsey v Bd. of Educ., of Mount Morris Cent. School Dist., et al., 72 AD2d 185, 186) (emphasis added).  This is not the situation before me.  Here, the board did not knowingly permit petitioner to teach beyond the expiration of her probationary term but, instead, was ordered in Dickinson I to reinstate her retroactively to September 1, 2008.  It is noteworthy that, when the board did act to recall petitioner on June 23, 2009 to a probationary position in the reading tenure area, it simultaneously rescinded its April 24, 2007 conditional appointment of petitioner in that tenure area.  Indeed, petitioner never rendered any further service in the reading tenure area under the reasonable expectation that it would lead to tenure.   As such, the board did not itself acquiesce or consent to the continuance of her employment in the district and, consequently, petitioner did not acquire tenure by estoppel (see LaBarr v Board of Ed. Of Union Free School Dist. No. 1, Town of Hempstead, 425 F Supp 219 [EDNY 1977]).

Based on the foregoing, I find that the relief provided in Dickinson I had no effect on petitioner’s tenure status and, therefore, the rationale for dismissing petitioner’s tenure claims as set forth in the decision in Dickinson II remains unaltered (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082).

While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Accordingly, having determined that the decision and order in Dickinson I had no effect on petitioner’s tenure claims raised in Dickinson II, I hereby affirm and adopt the findings and determination in Dickinson II in its entirety for the reasons set forth therein and in this decision.

THE APPEAL IS DISMISSED.

[1] The facts and procedural history are set forth in the original decision. 
[2] As ordered by Supreme Court, the sole issue for consideration is the effect of the determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II.  To the extent the parties attempt to introduce arguments not directly relevant to the tenure issue, I have not considered them.
[3] By letter dated April 8, 2011, my Office of Counsel notified each party of the opportunity to submit additional affidavits and memoranda of law on the sole issue of the effect of Dickinson I on petitioner’s tenure status.  Petitioner did not submit any further papers or memorandum.

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department

The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.
 

Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.

The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”

Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.

As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” 

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

Umlauf v Safir, 286 AD2d 267

Clearly, an employee may be subjected to disciplinary action for his or her off-duty misconduct that adversely affects his or her employer. If the employee is found guilty, any one of a number of penalties, including termination, may be imposed. The Umlauf case raises a related issue: what action, if any, may the appointing officer take in consideration of an employee's “pre-employment” misconduct.

In this instance the employee sued the City of New York following the Police Commissioner's dismissing him from his position without a hearing. Although the employee's petition seeking to annul the Commissioner's action was dismissed by State Supreme Court Justice William Davis, the Appellate Division reversed Justice Davis' decision “on the law.”

The Appellate Division ordered Commissioner Safir to reinstate the individual to his former position. If the Commissioner wished have the employee terminated, said the court, Safir would have to submit a request for such action in accordance with the provisions of Civil Service Law Section 50.4.

Section 50.4 provides for the disqualification of applicants or eligibles by the state civil department or responsible municipal civil service commission for a variety of reasons. The court's decision indicates that the relevant provision in this case is Section 50.4(d). Paragraph (d) authorizes the disqualification of an individual who has been guilty of a crime.

Section 50.4 further provides that “[n]o person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The court found that Safir had terminated the employee because of the individual's pre-employment conduct. This, said the Appellate Division, was improper -- an appointing authority does not have the authority to take such unilateral action. The court pointed out that in this instance Section 50.4 of the Civil Service Law vests the authority to disqualify or remove the individual in the head of New York City's Department of Citywide Administrative Services, not the head of a City department or agency.

Further, the individual may neither be disqualified nor terminated, as the case may be, unless he or she is provided with a written explanation of the reasons for the proposed action and given an opportunity to submit an explanation and facts opposing such action prior to his or her disqualification for, or termination of, employment.

Where the appointing authority seeks to have an individual disqualified or employee terminated for one or more reasons set out in Section 50.4, it should so advise the State Department of Civil Service or the responsible municipal civil service commission, as the case may be, setting out its reasons for seeking the disqualification or termination of the individual.

Is the individual who is to be disqualified or terminated pursuant to Section 50.4 entitled to a hearing before the department or municipal commission? In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals ruled that no “Section 50.4 hearing” is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

Another element in this case -- the employee had also claimed that he was entitled to a name-clearing hearing. The Appellate Division, citing Swinton v Safir, 93 NY2d 758, agreed. The court said that the worker “has sufficiently raised the issues of the partial falsity and overall characterization of information included in his personnel file, the dissemination of such information, both past and future, as well as the presence of 'stigma plus' -- in this case governmental defamatory action in conjunction with loss of employment”