Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Title VII, a “precise, complex, and exhaustive” statute, does not prohibit employment practices that are not specifically prohibited by the act

Cooper v N.Y. State Dep’t of Labor, U S Circuit Court of Appeals, 2d Circuit, Docket #2015-3392

Winifred Cooper¸ a former New York State Department of Labor’s Director of Equal Employment Opportunity, filed suit against the Department alleging that the Department had unlawfully retaliated against her for opposing an employment practice prohibited by Title VII of the Civil Rights Act of 1964 and New York State’s Human Rights Law, Executive Law §§290 et seq.

In December 2012, Cooper learned that the Governor’s Office of Employee Relations [GOER] had developed a plan to “alter the means by which internal Equal Employment Opportunity [EEO] complaints were to be processed by state departments and agencies." 

In the words of the Circuit Court of Appeals, Cooper, “believing that the proposed changes materially conflicted with federal regulations because they would ‘subject the EEO complaint response process to political pressure,’ increasing the likelihood that workplace discrimination would go unredressed,” initiated a series of communications with her supervisors bring her concerns to their attention. Cooper’s position proved persuasive and GOER’s plan was altered in consideration of her views. 

Subsequently Cooper was terminated from her position. Alleging that her termination was “in retaliation for having lobbied against GOER’s proposal,”  Cooper sued. The federal district court dismissed her petition and the Circuit Court affirmed the lower court’s ruling.

The Circuit Court explained that Title VII’s anti-retaliation provision prohibits employers from “discriminat[ing] against any individual … because he [or she] has opposed any practice made an unlawful employment practice” within the meaning of 42 USC §2000e.* Further, said the court, “A plaintiff seeking to demonstrate that he [or she] engaged in protected activity need not show that the behavior he [or she] opposed in fact violated Title VII; he [or she] must, however, show that he [or she] “possessed a good faith, reasonable belief,” that the employer’s conduct qualified as an “unlawful employment practice” under the statute.”

However, said the court, the conduct Cooper opposed – the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims – is not a “practice made an unlawful employment practice” by Title VII nor could Cooper reasonably have believed otherwise. For these reasons Cooper was not entitled to the relief she sought.Accordingly, Circuit Court affirmed the district court's dismissal of her claims.

* As an example, the Circuit Court of Appeals noted, objecting to the employer’s failure to adhere to its own affirmative action program is not protected activity because such a failure is not an “unlawful employment practice” within the meaning of Title VII.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/doc/15-3392_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/87702623-71b7-4f51-8987-43915c823f47/6/hilite/

Challenging a decision to terminate a probationary teacher's employment

Challenging a decision to terminate a probationary teacher's employment

Decisions of the Commissioner of Education, Decision No. 16,894

William Floyd Union Free School District employed Matthew Nadolecki as a special education math teacher subject to his satisfactory completion of a three-year probationary period which was to run through September 28, 2013.  In April 2012 the superintendent advised Nadolecki that he would recommend that the board terminate Nadolecki’s services as a probationary teacher. 

Nadolecki requested a written statement of the reasons for the superintendent’s recommendation. The superintendent responded stated that his recommendation was based on Nadolecki’s failure to meet district expectations in the following areas: [1] ineffective and inadequate classroom teaching techniques; [2] ineffective implementation of lesson plans; [3] ineffective communication with parents; and [4] ineffective and sometimes inappropriate guidance for students. 

Via an April 18, 2012 email, Nadolecki initiated a Level 1 grievance pursuant to his collective bargaining agreement in which he stated that he was “grieving the efforts by the district to terminate [his] probationary appointment through dismissal.”  On April 23, 2012, the superintendent responded, repeating the reasons he had enumerated earlier and denied Nadolecki’s Level 1 grievance. Nadolecki then filed a Level 2 grievance, which grievance was denied on May 3, 2012.

At its May 22, 2012 meeting, the School Board considered the superintendent’s recommendation and voted to terminate Nadolecki’s probationary appointment, effective June 30, 2012. Nadolecki was advised of the board’s decision by letter dated May 24, 2012.

Nadolecki appealed the Board’s decision to the Commissioner of Education, contending that his termination was “in violation of the procedures set forth in the collective bargaining agreement, district policies and was otherwise retaliatory because of his alleged whistle-blowing activities.”  Nadolecki also argued that the Superintendent’s letter dated April 23, 2012 “did not comply with Education Law §3031.”

The School District maintained that it had complied with all applicable laws, including Education Law §3031, when it terminated Nadolecki and that Nadolecki’s petition failed to state a claim upon which relief may be granted.  In addition, the District said that [1] the Commissioner lacks jurisdiction over this appeal, [2] that petitioner lacks standing to bring this appeal and [3] that the appeal is untimely. In addition the District alleged that the April 23, 2012 notice complied with Education Law §3031.

Addressing a number of procedural issues, the Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki had brought earlier filed a grievance at Level 1 in which he alleged that the district’s efforts to terminate him violated the collective bargaining agreement [CBA] between the School District and Nadolecki's employee organization; asserted that certain CBA provisions regarding evaluations and observations were not adhered to; asserted that he believes he was being terminated for not “staying under the radar;” and because of his participating in a “protected union activity”.

Unsuccessful at Level 1, Nadolecki next filed a Level 2 grievance and a final determination denying his Level 2 grievance was issued on May 3, 2012.* 

Succinctly, the Commissioner said the Nadolecki “claims that [the School District]  violated the provisions of the collective bargaining agreement, which were the subject of a prior grievance, must therefore be dismissed for lack of jurisdiction, citing Bd. of Educ., Commack UFSD v Ambach, 70 NY2d 501.

Nadolecki, in effort to persuade the Commissioner to assume jurisdiction in this appeal notwithstanding his initial election to seek a remedy as provided by the CBA, argued that because he commenced his grievance prior to his actual termination by the School District, the Commissioner should retain jurisdiction over this appeal.  However, said the Commissioner, Nadolecki was attempting to raise the same collective bargaining issues in this appeal as he raised in the grievance and the Commissioner rejected Nadolecki’s argument that because he only grieved School District’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues from his actual termination.

The Commissioner also observed that, in any event, Nadolecki claims would be dismissed under the doctrine of election of remedies.  The Commissioner explained that the commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of a subsequent appeal to the Commissioner involving the same issues.

Turning to the merits of Nadolecki appeal, the Commissioner pointed out that “ A board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Nadolecki, said the Commissioner, failed to establish that he was terminated for a constitutionally impermissible reason, or in violation of a statutory proscription. 

While Nadolecki contended that he was terminated in retaliation for alleged "whistle-blowing", the Commissioner found that, on the record before her, he has not met his burden of establishing that his dismissal was in retaliation for whistle blowing. 

Although Nadolecki disagreed with the School District’s decision to terminate his services, the Commissioner ruled that he did not establish that the School District terminated his employment for a constitutionally impermissible reason or in violation of a statutory proscription, thus failing to meet his burden of proof.

Noting that Nadolecki alleged that the School District violated Education Law §3031 by failing to give him more than a general statement as to the reasons for his dismissal, the Commissioner rejected this claim, explaining that Nadolecki “has not established that [the School District] failed to comply with the requirements of Education Law §3031."

Further, said the Commissioner, “even if noncompliance were established, the remedy for a violation is not automatic reinstatement of a teacher to his former position, and equity does not require a board to provide a windfall to petitioner in the form of salary because he performed no services for the district after the termination date.”

The Commissioner then dismissed Nadolecki’s appeal in its entirety.

* Significantly, Nadolecki did not allege in this appeal that the union breached its duty of fair representation with respect to processing his grievance. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16894

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Davis v New York City Board/Department of Educ., 2016 NY Slip Op 02544, Appellate Division, First Department

Where the parties are subject to compulsory arbitration in determining an employee disciplinary matter pursuant to the terms and conditions set out in law or in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, due process requirements must be met in making the determination and the award cannot be arbitrary and capricious.
 
VHB, a tenured teacher employed by the New York Department of Education [Department], was served with disciplinary charges pursuant to Education Law §3020-a*. 

The Hearing Officer who conducted the disciplinary arbitration hearing found that the Department had provided VHB with assistance and numerous opportunities to improve her skills but concluded that VHB “was either unable or unwilling to adjust her teaching methods to comply with her supervisors' appropriate directives.” The penalty imposed on VHB: dismissal from her position.

VHB filed a petition pursuant to CPLR Article 75 seeking a court order annulling the arbitration award. The Appellate Division, explaining that Education Law §3020-a(5) limits judicial review of a hearing officer's determination to the grounds set out in CPLR §7511, said §7511, in relevant part,  provides that a court may vacate an arbitration award in the event the court finds that:

1. The rights of the party challenging the award were prejudiced by corruption, fraud or misconduct in procuring the award;

2. The arbitrator appointed as a neutral was not impartial;

3. The arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made;

4. There was a failure to follow the procedure of set out in CPLR Article 75 [except if the party applying  to vacate the award continued with the arbitration with notice of the defect and without objection].

In certain cases, however, the courts have adopted "a violation of a strong public policy standard" when considering petitions to vacate an arbitrator’s award. For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy. 

The Appellate Division said that the award in VHB's case was not arbitrary and capricious and “was well supported by the evidence.” The Hearing Officer, said the court, had engaged in a through analysis of the facts and circumstances, evaluated witnesses' credibility, and arrived at a reasoned conclusion. VHB's due process rights were met as she was provided with notice, an appropriate hearing and the opportunity to present evidence and cross-examine witnesses.

As to VHB's claim that the arbitrator was prejudiced, court said that VHB “failed to sustain her burden of demonstrating bias or misconduct by the Hearing Officer, who did not exceed her powers.”

Addressing the penalty imposed on VHB, termination, the Appellate Division said that “the penalty of termination is not excessive” and denied VHB’s appeal in its entirety.

* See “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew dated April 15, 2010 concerning the processing and resolution of disciplinary charges filed against an educator employed by the New York City Department of Education pursuant to §3020-a of the Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02544.htm

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The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Appeal of Kavanaugh v Board of Education of the Hamburg Central School District, et al, Decisions of the Commissioner of Education, Decision No. 16,897

Martha A. Kavanaugh, a tenured teacher, appealed the decision of the Hamburg Central School District Board of Education placing her on "administrative leave and/or suspend[ing] her with pay” effective January 15, 2014. The noticed placing Kavanaugh in such status stated that the School Board was “investigating [her] conduct as a school district employee” and that “[w]hile on leave, you are not permitted on District grounds, including any school buildings.” 

On September 2, 2015, the School Board served disciplinary charges against Kavanaugh pursuant to Education Law §§3020 and 3020-a alleging “incompetence/neglect of duty and insubordination.” Kavanaugh requested an administrative hearing on these charges which the Commissioner’s decision indicates “appear to be pending” at the time the Commissioner considered Kavanaugh’s Education Law §310 appeal.

In this appeal Kavanaugh contended that the School Board’s action placing her on “administrative leave” on January 14, 2014, and thereafter extending her “suspension” on March 2, 2015, without filing disciplinary charges against her were unlawful.*

As redress, she asked the Commissioner to [1] declare such action by the Board null and void; [2] direct the Board to reinstate her to her former position; and [3] direct the Board to expunge any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time from her personnel records.**  Additionally, Kavanaugh sought reimbursement of legal fees she had incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the Board members’ oath of office; that the Commissioner reprimand the respondents in this appeal; and an order directing such respondents to publicly apologize to her.

The School Board, in rebuttal, argued, among other things, that its placement of Kavanaugh on administrative leave was proper in all respects; that Kavanaugh failed to establish that Board acted in an arbitrary and capricious manner, and that Kavanaugh failed to state a claim. 

Addressing a number of procedural objections advanced by the School Board, the Commissioner ruled that as the Board’s action challenged by Kavanaugh “clearly affected [her] directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties,” Kavanaugh had standing to maintain her appeal.***

In response to the School Board’s argument that Kavanaugh’s challenging the Board’s actions of January 14, 2014 and March 2, 2015 regarding placing, or continuing, her on leave and/or suspending her with pay was untimely, the Commissioner ruled that Kavanaugh’s appeal was not untimely as these actions by the Board, if proven, would constitute a continuing wrong, commenting that “[t]he continuing wrong doctrine applies when the ongoing action is itself an unlawful action….”

Noting that the suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board, the Commissioner ruled that “the suspension of a tenured teacher without the filing of such charges is ultra vires[acting beyond one's legal power or authority] and, thus, constitutes a continuing wrong” and, accordingly, Kavanaugh’s appeal was not untimely.

Addressing the merits of Kavanaugh’s appeal, the Commissioner again observed that “the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra viresand in violation of the individual’s tenure rights.” In this instance, said the Commissioner, a tenured teacher was suspended more than 19 months before disciplinary charges were served on her and she was prohibited from coming on school property and could not consult with her colleagues during this period.

Conceding that the School Board correctly asserted that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against an employee, the Commissioner said that, on this record, she found that the School Board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges against Kavanaugh.  Accordingly, the Commissioner ruled that as the School Board did not act within a reasonable amount of time to prefer charges against Kavanaugh after removing her from teaching duties, “such removal must be deemed null and void and expungement is warranted.”

The Commissioner then directed “that any and all references to the January 14, 2014 placement of [Kavanaugh] on administrative leave and March 2, 2015 suspension be stricken from [Kavanaugh’s] records and personnel files [but that] nothing herein shall be construed as nullifying [the School Board’s] September 2, 2015 action to prefer charges pursuant to Education Law §3020-a."

* Kavanaugh did not challenge the §3020-a charges preferred against her by School Board on September 2, 2015 that were then the subject of the pending administrative hearing. 

** Kavanaugh also sought reimbursement of legal fees she incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the defendant Board members’ oath of office; that the Commissioner reprimand certain of the defendants; and the Commissioner order the School Board and the School Superintendent publicly apologize to her. The Commissioner indicated that she had no authority to provide such relief in an appeal pursuant to Education Law §310 were she to decide such relief, in whole or in part, was warranted.

*** The Commissioner dismissed that aspect of the Kavanaugh’s appeal that concerned the placement of a memorandum in her file pertaining to the assignments she was given while on leave and, or, suspension as untimely, explaining that Kavanaugh “commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16897

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Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Source: Office of the Governor

Governor Andrew M. Cuomo announced his designating Dr. Barbaralee Diamonstein-Spielvogel  Chair of the New York State Council on the Arts. Until now Dr. Diamonstein-Spielvogel served as Vice Chair.

The New York State Council on the Arts is dedicated to preserving and expanding the rich and diverse cultural resources that are and will become the heritage of New York’s citizens. The Council believes in supporting artistic excellence and the creative freedom of artists without censure, the rights of all New Yorkers to access and experience the power of the arts and culture, and the vital contribution the arts make to the quality of life in New York communities. NYSCA, serving all 62 counties, strives to achieve its mission through its core grant-making activity and by convening field leaders, providing information and advisory support, and working with partners on special initiatives to achieve mutual goals.

Throughout her career, Dr. Barbaralee Diamonstein-Spielvogel has served as a leading voice on civic and cultural engagement, having demonstrated a strong commitment to the arts, architecture, design, and public policy across New York City, New York State, and the country.

A former White House staff assistant, in 1966, she became the first Director of the New York City Department of Cultural Affairs. She later served as the longest-term Commissioner of the New York City Landmarks Preservation Commission from 1972 until 1987, and from 1987 to 1995, served as Chair of the New York City Landmarks Preservation Foundation. She has served as a member of the New York City Art Commission (now the Public Design Commission) and the New York City Commission of Cultural Affairs for more than a decade.

In 1987, she was appointed by President Reagan to the Board of the U.S. Holocaust Memorial Museum and in 1996 was appointed by President Clinton to the U.S. Commission of Fine Arts, where she later became the first woman to be elected as Vice Chair. In 2009, President Obama appointed her to the American Battle Monuments Commission.

Dr. Diamonstein-Spielvogel has served on the boards of a variety of educational, visual, literary, and performing arts institutions, including the Brooklyn Academy of Music, the Visiting Committee for Drawings at the Metropolitan Museum of Art; the Collection Committee of the Smithsonian Cooper Hewitt National Design Museum; the PEN American Center; the New York State Historic Archives Partnership Trust; and the Corcoran Gallery of Art in Washington, D.C. She is the founder and chair of the New York City Landmarks50 Alliance, and a founding member of the Highline, New York City, the Trust for the National Mall and the Museum of African Art in Washington, D.C.

Dr. Diamonstein-Spielvogel is the author of 23 books and the curator of eight international museum exhibitions. She earned her doctorate with high honors from New York University, and received honorary doctorates from the Maryland Institute College of Art, Longwood University, and the Pratt Institute.