Teacher the target of sexual harassment complaints

Teacher the target of sexual harassment complaints

Matter of Devany, Comm. of Education, Decision 14,747

Many public employers have adopted policies dealing with sexual harassment. The Devany case describes some administrative procedures that might be experienced in processing sexual harassment complaints under such an employer's policy. Here a parent challenged the content of classroom instruction by a teacher in accordance with administrative procedures established by the Massapequa Union Free School District Board of Education.

Eugene P. Devany alleging that his daughter Sara had suffered sexual harassment when the teacher encouraged to her students "to write and speak foul and vulgar terms and descriptions of illegal sexual activities" in the course of conducting a class in sex education.

School administrators investigated Devany's complaint, including interviewing the teacher, a teaching assistant who was present in the classroom when the discussion took place, various administrators and Devany. The superintendent concluded that the district's sexual harassment policy had not been violated. Devany appealed to the school board as provided by the policy.

After considering the results of the administrative investigation of Devany's allegations and "a thorough legal analysis of the district's sexual harassment policy and the applicable law," the school board concluded that the teacher's conduct did not constitute sexual harassment. In the words of the school board:

Although we disagree with the judgment exercised by the teacher - we find that no sexual harassment occurred - the acts in question, had an instructional purpose, were discussed in clinical terms, and this method of instruction was authorized by [the teacher's] supervisors.

The Board's decision also directed officials to "review the instructional techniques, and curriculum and make recommendations for such corrective measures as are necessary."

Devany appealed the Board's determination to the Commissioner of Education.[1]

The Commissioner dismissed Devany's appeal on technical grounds: Devany had neglected to "join a necessary party" -- the teacher herself. However, said the Commissioner, even if he had not dismissed Devany's appeal on procedural grounds, he would have dismissed it on the merits. Why? Because, said the Commissioner, subdivisions 13 and 33 of Section 1709 of the Education Law gives a board of education broad powers concerning the superintendence, management, and control of a school district.

Accordingly, the Commissioner said that he would not substitute his judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws.

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[1] Devany had also filed two complaints directly with the State Education Department's Teacher Discipline Unit, presumably seeking to have the teacher's license to teach suspended. The first such complaint concerned the underlying classroom incident; the second complained about the district's handling of the sexual harassment investigation and requested an investigation of the principal and the assistant superintendent. The Commissioner declined to consolidate these two complaints with Delaney's appeal, commenting that "an appeal before the Commissioner is not the proper forum to seek the suspension of a teacher's teaching certificate."

Training accidents

Training accidents

Brady v City of New Rochelle, App. Div., 2nd Dept., 296 AD2d 365

A police officer is injured while participating in a training program. May he or she sue the employer for negligence? In Brady the Appellate Division said the injured officer could not sue the employer for negligence.

Matthew Brady, a New Rochelle police officer, sued the City for "common-law negligence" after he was injured in a motorcycle accident during a police motorcycle training course.

The Appellate Division, Second Department, affirmed a lower court ruling dismissing Brady's action on the grounds that "Brady was performing his official duties as a police officer at the time of the accident." In other words, participating in training activities is "on-the-job" performance of duties.

Citing the decisions in Melendez v City of New York, 271 AD2d 416, and Flynn v City of New York, 258 AD2d 129, the court ruled that Brady's common-law negligence cause of action was barred by General Obligations Law Section 11-106.

Another reason given by the Appellate Division for blocking Brady's law suit: his "common-law negligence cause of action is barred on the ground that he received salary and medical benefits pursuant to General Municipal Law Section 207-c" as a result of his being injured in the course of his employment.

Vindicating a personal right

Vindicating a personal right

Cavanaugh v Board of Education of Huntington Union Free School District, 296 A.D.2d 369

The Cavanaugh decisions demonstrates the critical importance of filing a timely notice of claim when an individual plans to sue a school district concerning a matter solely involving his or her private interest.

Carlene Cavanaugh sued the Board of Education of Huntington Union Free School District for damages for alleged acts of employment discrimination in violation of Executive Law Section 296. Cavanaugh claimed that the school district forced her to resign from her position because it refused reasonably accommodate her disability. She also alleged that the district violated Section 296 by unlawfully discriminating against her because of her age.

Although Cavanaugh apparently was timely in filing her lawsuit, she failed to file a timely notice of claim with the school district.

The Appellate Division, Second Department, ruled that where an individual "seeks private relief for employment discrimination in violation of the Executive Law," the timely filing of a notice of claim required by Section 3813(1) of the Education Law is "a condition precedent to suit." The court cited the Court of Appeals ruling in Mills v County of Monroe, 59 NY2d 307, [certiorari denied 464 US 1018] as authority for its ruling.

Sometimes it may be possible to obtain court approval to file a "late notice of claim." However, the general rule is that if an aggrieved party fails to file a required notice of claim before the controlling statute of limitations expires, the courts do not have "jurisdiction" over the issue.

As the Cavanaugh decision implies, courts may find it necessary to distinguish between an employee's suing his or her employer in an effort to vindicate a private interest in contrast to his or her attempt to vindicate a public interest.

Bringing discredit on the employer

Bringing discredit on the employer

Wilburn v McMahon, 296 AD2d 805

From time to time disciplinary charges alleging misconduct because the employee's actions discredited the employer in the eyes of the public are filed against an employee. The Wilburn case is an example of such a case.

Douglas A. Wilburn, a New York State Trooper, was charged with, among other things, "engaging in conduct that tended to discredit [the] Division of State Police." Other charges alleged that Wilburn had left his assigned post without the approval of his superiors and that he used his position as a member of the Division of State Police to obtain information for a personal reason.

Wilburn admitted that he had obtained the e-mail addresses of two college students who had asked him for directions. He also admitted that he had sent e-mail to the students using the name "like2tryu2" with a subject heading of "BI MALE HERE."

Wilburn conceded that he had no "law enforcement" reason to obtain the names of the students nor their e-mail addresses and further acknowledged that the students had probably divulged their names to him only because he was a State Trooper.

The students became upset, angry and alarmed by these messages, especially since "like2tryu2" indicated that he knew the students. When they discovered Wilburn's identity, the students registered complaints with the Division of State Police.

Wilburn's defense: his motivation was altruistic and, at worst, constituted excusable poor judgment. Found guilty of the charges, Wilburn was dismissed from his position. He then initiated an Article 78 action, claiming that (1) there wasn't substantial evidence in the disciplinary record to support a determination of guilt and (2) the penalty imposed -- termination -- was too harsh.

The Appellate Division found that there was substantial evidence in the record to support the Superintendent's determination and, further, under the circumstances termination did not violate the Pell standard [Pell v Board of Education, 34 NY 2d 222] in that it was not so disproportionate as to shock one's sense of fairness.

The court said that regardless of the merit of Wilburn's testimony regarding his motivation, which, in fact, was specifically rejected by the disciplinary hearing panel, "the fact remains that he used his position as a State Trooper to obtain information for personal reasons, i.e., purposes unrelated to his law enforcement duties." Further, one of the students he contacted testified that he "didn't expect that to happen from a State Trooper" and the other "wonder[ed] what kind of people they hire if they're going to do that". Such testimony, said the Appellate Division, supported a finding that Wilburn's conduct tended to discredit the State Police.

As to Wilburn's argument that the penalty imposed, dismissal from the service, was disproportionate to the offenses he had committed, the court noted that the Division "did not rely solely upon the subject charges in determining the penalty." Rather, said the court, the Division "properly considered [Wilburn's] employment record over 10 years which contained approximately 16 founded complaints, including, neglect of duty and incompetence."

The court commented that the Superintendent "properly considered" Wilburn's employment history with the Division in setting the penalty.

Sometimes the use of the employee's personnel record by the disciplinary hearing officer or arbitrator to determine the severity of the penalty to be imposed on an employee found guilty of one or more of the charges filed against him or her is challenged by the individual.

The general rule applied by the courts when asked to determine if the employee's personnel record was lawfully considered in setting the disciplinary penalty is that the employee's personnel records may be considered in setting a penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

The case usually cited as authority for this proposition is Bigelow v Trustees of the Village of Governour, 63 NY2d 470.

Further, the employee's consent is not required in order for the hearing officer or arbitrator to consider the employee's personnel record in determining an appropriate penalty.

In some cases the employee's work history may serve to mitigate the imposition of a harsher penalty than would be appropriate under the circumstances because of the individual's otherwise exemplary performance record. Sometimes the individual may request that his or her entire personnel record be considered in order to mitigate the penalty to be imposed.

In contrast, a history of a series of petty offenses by the individual may have a cumulative impact in the determining the appropriate penalty to be imposed. For example, courts have sustained the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

Responsibility of employers in cases of sexual harassment

Responsibility of employers in cases of sexual harassment

Ellerth v Burlington Ind., CA7, 102 F.3d 848 

The law places a heavy burden of responsibility on employers in cases of sexual harassment. Even if the employer was unaware of the harassment and the harasser was breaking company rules in his or her behavior, the employer may still be judged liable.

The pertinent law can be confusing and is not well understood by many personnel directors and union leaders, even those with experience handling sexual harassment cases. However, courts consider the standard that they apply to be uncontroversial. Circuit Judge Diane Wood explained the law in her decision in the Ellerth case.

The Ellerth case concerned a male vice president of marketing who had a habit of staring conspicuously at a female employee's breasts and legs and made numerous sexual comments, including during her initial job interview. (He inquired whether she and her husband were planning to have a family -- an illegal question, to be sure -- and whether they were "practicing" at it.) In a hotel lounge during a business trip, he told her that she should "loosen up" and that "I could make your job very hard or very easy at Burlington."

Although such behavior continued for more than a year, the employee never complained to her direct supervisor or the human resources department as called for in the company's policy against sexual harassment. The question the court focused on was whether an employer is held liable for a supervisor's conduct.

The answer is sometimes.

The U.S. Supreme Court addressed the issue in its landmark 1986 decision in Meritor Savings Bank v Vinson, 477 U.S. 57, in which the justices declared that sexual harassment is a form of sex discrimination prohibited by Title VII. In that decision, the Supreme Court rejected the view that employers are "automatically" or "absolutely" liable for the actions of supervisory personnel. At the same time, the Court rejected the notion that a company that has a policy against harassment and a grievance procedure is necessarily insulated from liability, even if the employee fails to file a grievance.

Instead, the justices stated that courts should determine employers' liability by relying on the old legal concept of agency, which holds that a master is responsible for the actions of a servant if the servant was aided in the action by the existence of an "agency relation" to the master.

For instance, suppose there is evidence that a rental agent named Hurdelbrink discriminated when showing apartments to prospective tenants. The owner of the building, Balistrieri, argues that there is nothing to link the discriminatory acts to him. Is the owner still liable for Fair Housing Act violations? Yes, the Seventh Circuit ruled in U.S. v Balistrieri, CA7, 981 F2nd 916 (1992):

In any event, Hurdelbrink was acting as Balistrieri's agent. Her duties as agent were to show apartments and to do the other things--such as quoting rents and stating rental conditions--that go along with that job. Hurdelbrink was acting within the scope of her authority--either actual or apparent--when she committed her discriminatory acts. As we have previously held ... "a principal is liable for the wrongful acts of its agent."

In a nutshell, liability depends on whether a supervisor was "acting in the scope of (his or her) employment" in committing the acts of harassment.

If the employee was breaking a company rule in the behavior, that means they were not acting in the scope of their employment, right? Wrong. If the employee broke a rule -- or even committed a crime -- this does not shield the employer from liability. In a case involving a hotel vice president who actually raped and sodomized an employee during working hours, the Fourth Circuit found the corporate employer to be liable for the sexual harassment. The test, the court held, "is not whether the ... act itself is a transaction within the ordinary course of the business of the [employer], or within the scope of the [employee's] authority, but whether the service itself in which the ... act was done was within the ordinary course of such business or within the scope of such authority." Martin v Cavalier Hotel Corp., CA4, 48 F3rd 343 (1995), at 1351.

In the specific case of Ellerth and Burlington Industries, Judge Wood, a Clinton appointee, ruled that it is possible that the company is liable and that a jury trial should be permitted. Wood and other circuit judges overturned a summary judgment by a U.S. District Court dismissing the lawsuit.

"The district court erred in believing that the relevant conduct was the harassment itself and that the harassment somehow needed to serve the employer's purpose before "scope of employment" liability could result," Wood wrote.

The mere fact that the offenses occurred during working hours and in the context of a working relationship that benefited the employer is sufficient to establish the harasser was acting in the scope of his employment, Wood wrote. "(M)ost of his actions took place in the workplace, during working hours, and they were directed toward an employee over whom he had substantial authority. In some cases they occurred off-premises, but only in the context of business luncheons or work-related travel ... Nothing ever happened on entirely personal time or circumstances."

Indeed, the supervisor's innuendoes that there would be a quid pro quo for sexual favors were "directly related to his corporate position," Wood wrote.

Under agency law, Burlington's liability for the actions of its supervisor taken within the actual or apparent scope of his employment does not depend on whether someone else at the company knew or should have known that the supervisor was abusing the authority he had been given, Wood wrote. "The common law of agency places the responsibility on the employer to monitor the supervisory employees to whom it has entrusted special powers, to ensure that those powers are not misused."