School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

Kowalski v. Berkeley County Schools, United States Court of Appeals, Fourth Circuit, Docket #10-1098

A student sued West Virginia’s Berkeley County School District contending that it had violated her Constitutional right to free speech when it suspended her for creating a MySpace page ridiculing a fellow student. A federal District Court judge granted the school district’s motion for summary judgment, which ruling was affirmed by the Fourth Circuit U.S. Circuit Court of Appeals.

In this 42 USC 1983 action the court found that the student’s after-school “conduct was sufficiently connected to the school environment so as to implicate the [district’s] recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”

The full text of the decision is posted on the Internet at:

http://caselaw.findlaw.com/us-4th-circuit/1575495.html

Retiree's "double dipping" for retirement benefits prohibited

Retiree's "double dipping" for retirement benefits prohibited

Williams v McCall, 283 AD2d 808

John Williams, Jr. initially joined the New York State and Local Employees' Retirement System [ERS] in 1962 while employed by Creedmoor State Hospital. In 1969, he became a member of the New York City Police Department and became a member of the New York City Police Pension Fund [Fund]. In 1997 Williams began working full time for both the Police Department and Creedmoor simultaneously. This continued until he retired from the Police Department in 1990.

In 1990 Williams began to receive retirement benefits from the Fund while continuing to work full time at Creedmoor. He retired from Creedmoor in 1995 and began receiving benefits from ERS as well.*

Ultimately, ERS ruled that for purposes of calculating William's ERS retirement benefits, his employment at Creedmoor after July 3, 1990 could not be counted as service credit because he was receiving pension benefits from the Fund at that time. Williams appealed this ruling.

The Appellate Division affirmed the Retirement System's decision. The court said that it is well settled that “[a]s a general rule, an individual who is retired from service with the State, a municipal corporation or a political subdivision of the State may not engage in the practice known as 'double dipping', where [such the individual] simultaneously receives pension benefits and compensation for post-retirement public employment or service,” citing Incorporated Village of Nissequogue v New York State Civil Service Commission, 220 AD2d 53.

The Appellate Division ruled that because Williams began receiving pension benefits from the Fund in 1990 and continued to receive them during his employment at Creedmoor, the Comptroller had a rational basis for denying him service credit for this time period in calculating his ERS retirement benefits. The decision also points out that even if Williams “was specifically authorized to continue his post-retirement public service (which he was not on this record),” Retirement and Social Security Law Section 213(b) specifically prohibits the grant of service credit for such post-retirement employment.

The Appellate Division said that the fact that Williams worked for Creedmoor before and during his employment with the Police Department “does not compel a contrary conclusion.”

* Williams answered “no” in response to the question: are you a member of “any other Public Retirement System in the State” when he filed his application for ERS benefits in 1995.

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Fella v Rockland County, 297 AD2d 813

Rockland County Director of Hospitals Peter J. Fella was charged with sexual harassment. Found guilty, the County Executive imposed the penalty of suspension without pay for thirty days. Fella sued in an effort to have County Executive's action annulled.

The harassment charge had been filed by Jovita Catalan, a county employee. Her complaint alleged that Fella appointed Anne Gonzales, with whom he had a “romantic relationship,” to the position of Assistant Director of Nursing.

Catalan filed her complaint pursuant to the Rockland County Equal Employment Opportunity Policy [RCEEOP] alleging she was subjected to “discrimination, harassment or retaliation” on January 4, 2000, the day that the Fella told her that she would not be appointed to the Assistant Director position. Catalan contended that Gonzales was less qualified than she was and that Gonzales was appointed because she was Fella's girlfriend.

After an investigation, the Rockland County Director of Employee Rights and Equity Compliance concluded that Fella's promotion of an employee with whom he had a personal relationship created a hostile work environment.

Supreme Court Judge Nelson ruled that Fella’s conduct in promoting his paramour may have constituted poor judgment, and may subject him to discipline on other grounds, but did not constitute sexual discrimination prohibited by the RCEEOP. As the County failed to establish that this single instance of alleged favoritism based on a sexual relationship was punishable under the RCEEOP, Supreme Court annulled the determination and remitted the matter to the County for further proceedings.

The Appellate Division affirmed the lower court’s ruling, observing that the relevant provisions of the RCEEOP:

Prohibits discrimination in hiring and promotion on the basis of gender or sex or sexual orientation;

Encourages advancement for qualified individuals regardless of gender or sex or sexual orientation; and

Provides that employment decisions shall be made on the basis of merit, fitness, and equality of opportunity and without discrimination on the basis of gender or sex or sexual orientation.

The RCEEOP also states that sexual harassment is a form of employment discrimination based on gender.*

The Appellate Division said “that an isolated act of preferential treatment of another employee due to a romantic, consensual relationship” does not constitute sexual discrimination under either federal or State Law. In the words of the court, Preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.

 

Noting that there was no evidence that Fella discriminated against employees on the basis of gender or that he made unwelcome sexual advances or demands on employees, the finding that Fella created a hostile work environment in violation of the RCEEOP was ruled arbitrary, capricious, and without a rational basis. The Appellate Division concluded that compliant was properly annulled by the Supreme Court Judge.

In another “favoritism case,” DeCintio v Westchester County Medical Center, 821 F2d 111, cert. denied, 484 U.S. 965, the U.S. Circuit Court of Appeals, 2nd Circuit, decided that the selection of a woman romantically involved with her supervisor for promotion did not constitute unlawful gender discrimination within the meaning of Title VII insofar as her male co-workers were concerned.

In DeCintio, male employees sued, complaining that their supervisor had tailored the job requirements for the position in such a way as only his woman friend could qualify. This, they argued, was discrimination on the basis of sex within the meaning of Title VII.

The Circuit Court decided that as any female employee interested in the job would have been in the same position as the male employees, there was no sex discrimination involved. It was the “special relationship” between the supervisor and his woman friend rather than sex discrimination that had resulted in the preferential treatment to which the male employees had objected. While unfair, said the Court, the supervisor's actions did not constitute a violation of Title VII.

* The RCEEOP defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which "has the purpose or affect of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment."

Undertaking background investigations may be critical in defending “negligent hiring” claim

Undertaking background investigations may be critical in defending “negligent hiring” claim

Murray v SUNY Research Foundation, 283 AD2d 995

The Murray case illustrates some of the factors that courts consider in resolving cases involving allegations that the employer was guilty of “negligence” in selecting a particular individual for employment based on an allegation that the employer should have conducted a more intensive investigation of the individual's background than was actually made.

Teresa Murray sued the SUNY Research Foundation [Foundation] and the Rochester City School District [District] after she learned that her son was sexually assaulted over a period of months by an employee of the Foundation.

The Research Foundation had employed the individual to coordinate the Educational Talent Search program in the District's school that Murray's son attended. The alleged sexual abuse took place during regular school hours. Murray's son, however, was not enrolled in the Educational Talent Search program coordinated by the Research Foundation’s employee.

The Appellate Division, Fourth Department, sustained a Supreme Court justice's granting the Foundation's motion for summary judgment. It said that the Foundation satisfied its initial burden by establishing, as a matter of law, that it was not negligent in hiring or retaining the individual, and that Murray failed to raise any issue of fact.

According to the ruling, the Foundation introduced evidence demonstrating that it interviewed the employee extensively and obtained written references prior to its hiring him. Finding that the procedures followed by the Foundation revealed nothing that would lead a reasonably prudent person to suspect that he had “dangerous propensities” to sexually abuse children, the court concluded that the Foundation had “no duty to investigate further” before hiring” the employee. The Appellate Division based its conclusion on the fact that there was no evidence in the record to show that a routine background check would have revealed that the employee had a propensity to harm children.

Another defendant, the Rochester City School District, also asked the trial court to dismiss Murray's complaint against it. Its motion was denied. Sustaining the lower court's ruling, the Appellate Division said the Supreme Court justice properly denied the motion of the District seeking summary judgment dismissing the complaint against it.

The court explained that the District has “the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances.” The standard for determining whether this duty was breached: “would a parent of ordinary prudence placed in the identical situation and armed with the same information invariably have provided greater supervision.”

The court rejected the District's claim that it could not be held liable without actual or constructive notice of the employee's behavior. According to the ruling, “the criminal intervention of third parties may, however, be a 'reasonably foreseeable' consequence of circumstances created by the defendant.”

The operative factor here: Murray's son was permitted to meet alone with the coordinator of a program in which he was not enrolled, in a room with a closed door, in violation of school policy.

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

DiLauria v Town of Harrison, 285 AD2d 464

Town of Harrison police officer Steven DiLauria was terminated from his position after being found guilty of insubordination following a disciplinary hearing. The Appellate Division sustained his dismissal, finding that the department's determination that DiLauria had disobeyed two lawful orders given to him by Town of Harrison Chief of Police David Hall was supported by substantial evidence

The decision states that Chief Hall had directed DiLauria to report to Lieutenant Michael Kamensky for duty effective December 3, 1999, at 9:00 a.m. Although DiLauria “appeared outside of Lieutenant Kamensky's office on December 3 after 9:00 a.m., he did not report to Kamensky for duty as instructed.”

Kamensky and DiLauria then met with Chief Hall. During the meeting DiLauria if he could have the day off. Chief Hall denied the request and told Lieutenant Kamensky that DiLauria was assigned to him for duty. He then issued an order directing the DiLauria to report for a fit-for-duty examination at 2:00 p.m. that afternoon.

The decision reports that DiLauria responded to these directives by throwing the order on Chief Hall's desk and then “stormed out of the meeting.” Lieutenant Kamensky did not see the DiLauria again on December 3, 1999, nor did DiLauria appear for the fit-for-duty examination as directed.

Based on this record, the Appellate Division said that the penalty of dismissal “is not so disproportionate to the offenses as to be shocking to one's sense of fairness,” noting that DiLauria had previously been suspended for disobeying an order and “police departments are quasi-military organizations requiring strict discipline.