Rights to free speech and, or, academic freedom not offended by requiring a candidate for a teaching position to demonstration his or her teaching skills

The petitioner [Plaintiff] in this action appealed the federal district court's dismissal of his claims that members of a hiring committee at a State University of New York campus discriminated against him based on his age and disability and violated his First Amendment rights to free speech and academic freedom to the United States Circuit Court of Appeals, Second Circuit. Plaintiff also challenged the constitutionality of 28 U.S.C. §1915, certain procedural rules established by the District Court Judge and alleged that the magistrate judge was biased against him and should have been recused.*

Assuming, but not deciding that Plaintiff's age and disability discrimination claims are cognizable under §1983, the Circuit Court said it must first determine if the facts alleged in Plaintiff's complaint “plausibly support” the following elements:

[a] Plaintiff is a member of a protected class;

[b] Plaintiff was qualified;

[c] Plaintiff suffered an adverse employment action; and

[d] Plaintiff demonstrated at least minimal support for the proposition that the employer was motivated by discriminatory intent.

The Circuit Court held that Plaintiff's complaint did not meet this minimal standard.

Although Plaintiff alleges that the other candidates that were offered the teaching positions for which he applied were younger and less-qualified than he, the court said that these conclusory allegations do not plausibly support a discrimination claim because Plaintiff [1] "has not pled the qualifications for the position, [2] whether his qualifications met those requirements, or [3] whether the other candidates’ qualifications met those requirements."

With respect to Plaintiff's allegation that the hiring committee gave him negative evaluations for his teaching demonstration in order to cover up its discriminatory animus, the Circuit Court said that such "negative evaluations that SUNY gave [Plaintiff] ... conveyed legitimate concerns that [Plaintiff's] teaching philosophy conflicted with the university’s curriculum and needs and equally legitimate concerns about [Plaintiff's] practical skills as a teacher." Further, said the court, Plaintiff's allegation that an elderly SUNY professor had created administrative difficulties by taking medical leave does not support an inference that these legitimate reasons for not offering Plaintiff the position were pretext for discrimination.

The court opined that (a) Plaintiff's claims did not plausibly support an inference that SUNY is liable for age discrimination and (b) his allegation that SUNY violated his First Amendment guarantees of free speech and academic freedom by requiring him to give a teaching demonstrations also failed. 

Recognizing that the First Amendment protects academic freedom, the Circuit Court explained that "a university may nonetheless place parameters on scholarship when the parameters protect the university’s legitimate interest in ensuring that teaching candidates can communicate ideas effectively," citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260, in which the Supreme Court noted that "schools may exercise some control over speech in schools if the school’s actions are 'reasonably related to legitimate pedagogical concerns.'”

Holding that SUNY did not violate Plaintiff's First Amendment rights to free speech or academic freedom by requiring him to perform a teaching demonstration as a candidate for a teaching position, the Circuit Court concluded that Plaintiff "has not satisfactorily pled" that any SUNY employees discriminated against him or violated his First Amendment rights and affirmed the district court's order dismissing his complaint.

* With respect to challenges to the district court’s procedure, the Circuit Court ruled that Plaintiff did not have standing to challenge either §1915’s constitutionality or the district judge’s individual practices because he had not suffered an injury because of the district court’s review of his complaint pursuant to §1915 or as the result of the district court’s pre-motion letter requirement. As to Plaintiff's motion to remove the magistrate judge, the motion was deemed moot and "otherwise fails on the merits because Plaintiff’s allegation that the magistrate was biased was impermissibly premised solely on adverse rulings."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/doc/18-1540_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdcb5653-346c-48a4-9ff3-dc1908da6166/3/hilite/

Supplemental Military Leave: benefits for officers and employees of the State of New York as the employer

NO HEARING SCHEDULED

This proposed amendment to the Attendance Rules for Employees in New York State Departments and Institutions is a consensus rule making amending 4 NYCRR 21.15 and 4 NYCRR 28-1.17 to extend the availability of supplemental military leave benefits for certain employees of New York State as the employer until December 31, 2019.

This proposed rule amends 4 NYVRR 21.15 and 4 NYCRR 28-1.17 to continue the availability of the single grant of supplemental military leave with pay and further leave at reduced pay through December 31, 2019, and to provide for separate grants of the greater of 22 working days or 30 calendar days of training leave at reduced pay during calendar year 2019.

Union represented employees already receive these benefits pursuant to memoranda of understanding (MOUs) negotiated with the Governor’s Office of Employee Relations (GOER). The proposed rule amends 4 NYCRR 21.15 of the Attendance Rules consistent with the current MOUs, and amends 4 NYCRR 28-1.17 to extend equivalent benefits to employees serving in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

Currently §242 of the New York State Military Law provides that public officers and employees who are members of the organized militia or any reserve force or reserve component of the armed forces of the United States may receive the greater of 22 working days or 30 calendar days of leave with pay to perform ordered military duty in the service of New York State or the United States during each calendar year or any continuous period of absence. Following the events of September 11, 2001, certain State employees have been ordered to extended active military duty, or frequent periods of intermittent active military duty. These employees faced the loss of State salary, with attendant loss of benefits for their dependents, upon exhaustion of the annual grant of Military Law paid leave.

Accordingly, supplemental military leave, leave at reduced pay and training leave at reduced pay were made available to such employees pursuant to MOUs negotiated with the employee unions. Corresponding amendments to the Attendance Rules were adopted extending equivalent military leave benefits to employees in positions designated managerial or confidential within the meaning of Article 14 of the Civil Service Law.

The text of the proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov

Determining an educator's "seniority" for the purposes of reinstatement from a preferred list

In the event teaching positions are consolidated or abolished by a school district or a BOCES the services of the teacher having the least seniority in the system within the tenure area of the position that has been abolished shall be discontinued. In contrast, where the same or a similar vacancy becomes available and its to be filled, teachers are to be recalled for reinstatement "in the order of their length of service in the system" without reference to the tenure area in which that service was performed.*

A teacher [Educator] certified in elementary education and special education commenced working for the employer [School Board] in 2007 and was employed in a variety of positions including serving as a probationary elementary education teacher. While serving as a probationary elementary education teacher Educator was "excessed" and her name was placed on "a preferred eligible list of candidates" from which individuals would be selected for reinstatement should a similar position open in the future. When a vacancy for an elementary education teacher vacancy arose in 2013, the School Board determined that two individuals on the preferred list had greater seniority that Educator "because [Educator's] full-time regular substitute work as a special education teacher and as an elementary school librarian were not counted" in determining Educator's length of service for the purposes reinstatement from the preferred list. School District reinstated one of the two teachers having "greater seniority" to the vacancy.**

Educator appealed action of the School Board to the Commissioner of Education, contending that she should have been credited for her long-term substitute work in the school district and thus she had greater seniority than the individual the School District had reinstated to the vacancy. The Commissioner agreed and ordered that the School Board to appoint Educator to the position of elementary education teacher with back pay and benefits effective September 1, 2013. The School Board then commenced this CPLR Article 78 proceeding seeking to annul the Commissioner's determination. Supreme Court dismissed the proceeding, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a court may not substitute its judgment for that of the Commissioner unless it concludes that such determination was "arbitrary and capricious, lacked a rational basis or was affected by an error of law." Further, in making such a determination courts "tread gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations," knowing that "[i]t is for the Commissioner in the first instance . . . to establish and apply criteria to govern the selection and retention of qualified educators and staff." Accordingly, deference is afforded to the Commissioner's determination "where, as here, it is based upon her expertise in applying an ambiguous statutory and regulatory framework."***

Although long-term substitute work is counted toward "seniority in the system within the tenure of the position" for layoff purposes if it was performed in that tenure area prior to the teacher's probationary appointment in the same tenure area, in determining the rights of an individual on a preferred list for reinstatement "any and all service within the system" is counted without any "further qualification of service in a particular tenure area." The Appellate Division also commented that "this interpretation comports with the language of Education Law §3013 and prior precedent and, in addition, avoids the negative policy outcome of deterring teachers from accepting long-term substitute work if it falls outside of their preferred tenure area."

Accordingly, the Appellate Division found the Commissioner's decision was "entitled to deference" and agreed with Supreme Court that the Commissioner's determination is supported by a rational basis and that no reason exists to set it aside.

* The Education Law controls with respect to the layoff and reinstatement of certain officers and employees employed by a BOCES, a school district, certain other public schools, academies and colleges, the New York State School for the Blind and the New York State School of the Deaf serving in positions in the Unclassified Service as described in subdivisions (g), (j) and (k) of §35 of the Civil Service Law; the Civil Service Law controls with respect to the layoff and reinstatement of officers and employees in the Classified Service serving in positions described in §§40-45 of the Civil Service Law. Further, §85 and §86 of the Civil Service Law and §242 and §243 of the State’s Military Law provide  certain rights to individuals that could be relevant in a layoff situation.

** Educator initially challenged the School Board's service calculation in a CPLR Article 78 proceeding that was dismissed by Supreme Court on its finding that the Commissioner of Education had primary jurisdiction over the matter.

*** Noting that courts have not addressed certain differences in the provisions of Education Law §3013 but have done so with regard to the "nearly identical" provisions of a statute governing abolition and recall in school districts for cities with fewer than 125,000 inhabitants, the Appellate Division opined that that the statutory language and underlying policy dictate a calculation of recall rights using "any and all service within the system, not just within the specific tenure area at issue." Accordingly, the Appellate Division held that the Commissioner  "interpreted, and reasonably so, the analogous provisions of Education Law §3013 in the same manner."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02402.htm

_______________________

The Layoff, Preferred List and Reinstatement Manual - An e-book focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://booklocker.com/books/5216.html
_______________________

Challenging the denial of an application for New York State and Local Retirement System disability retirement benefits

There are three basic issues to be mindful of when challenging the denial of an application for disability benefits submitted by a member of the New York State and Local Retirement System [NYSLRS].

1. The applicant seeking disability retirement benefits bears the burden of demonstrating that he or she is permanently incapacitated from performing his or her job duties;

2. The State Comptroller is vested with the "exclusive authority" to determine an application for NYSERS disability retirement benefits; and

3.  The Comptroller's decision will be sustained by the court if supported by substantial evidence.

The genesis of a CPLR Article 78 action was the Comptroller's denial of a New York State and Local Retirement System [NYSLRS] member's [Member] application for disability retirement benefits following the review of the findings and recommendation of a hearing officer made after a hearing pursuant to §74 of the Retirement and Social Security Law [RSSL].*

The Member contended that the medical records upon which the System based its initial denial of her application were erroneously admitted into evidence at the hearing. However, noted the Appellate Division, Member withdrew her objection to these records at the hearing and, thus, failed to preserve this issue for review by the Appellate Division is this Article 78 proceeding.

The Appellate Division then explained that in reviewing the determination of the Comptroller following a RSSL §74 hearing, the court is limited to considering whether the Comptroller's determination is supported by substantial evidence and in disability cases "substantial evidence" has been construed to require "some credible evidence." Further, said the court, the hearing officer was entitled to credit the evidence presented by NYSLRS' medical expert and "[i]t is within the exclusive authority of the Comptroller to evaluate the medical evidence and credit one medical opinion over another."

Further, opined the Appellate Division, the Comptroller's decision to credit one expert's opinion over the opinion of a another expert's is "dispositive where, as here, the credited expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records." The court then noted that NYSLRS' medical expert:

a. reviewed the medical records the Member submitted to the System; 

b. conducted a physical examination of the Member; and 

c. considered the letters from the Member's treating physicians stating that she was permanently disabled due to the conditions listed in her application as well as other resultant conditions.

Noting that NYSLRS was entitled to credit the opinion set forth in its medical expert's supplemental report "because it was founded upon a physical examination and review of relevant medical reports and records," the Appellate Division ruled that the Comptroller's decision was supported by substantial evidence and dismissed Member's Article 78 petition.

* Member had submitted over 200 pages of medical records to NYSLRS' Medical Board. Member was then referred a physician for a medical examination. Following the examination the physician opined that Member's medical condition "should present no obstacle to her ability to work" and that "[f]rom an internal medicine standpoint, there are no findings in the records or examination to support a disabling condition." NYSLRS denied the Member's application. At the Member's request, a redetermination hearing was held before a hearing officer, at which time the Member offered additional medical records and Member's family physician testified concerning Member's medical issues. In addition, Member  "submitted letters from other medical professionals" stating that Member was disabled due to "a constellation of symptoms and conditions." The hearing officer credited the opinion of NYSLRS' medical expert and recommended denying the Member's application for benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02343.htm

Arbitrability of a job security provision set out in a collective bargaining agreement

Supreme Court granted the petition filed by the City of Watertown Fire Department seeking a permanent stay of arbitration of a grievance filed by the Watertown Professional Firefighters Association, Local 191, the collective bargaining representative of firefighters concerning the staffing provisions set out in a collective bargaining agreement [CBA]. The court determined that the staffing provisions were unenforceable job security provisions that violate public policy and, therefore, may not be arbitrated. The Appellate Division unanimously reversed the lower court's order "on the law."

Citing Matter of Alden Cent. Sch. Dist. [Alden Cent. Schs. Administrators' Assn., 115 AD3d 1340, the Appellate Division explained that in deciding an application to stay or compel an arbitration brought under CPLR §7503, the court must make a two-part analysis as a "threshold determination of arbitrability" and is not concerned with the merits of the underlying claim.

First, the court is to determine if there is any "statutory, constitutional, or public policy" prohibition barring arbitration of the grievance. If no such prohibition is found, the court is then to determine if the parties to the CBA did, in fact, agree to arbitrate the particular dispute by examining the relevant CBA.

In this instance the Appellate Division concluded that Supreme Court "erred in determining that the staffing provisions are not arbitrable on the ground that they are job security provisions subject to the public policy exception to arbitration."

A job security provision in a CBA provides that "at least for the duration of the agreement," the employees in the unit covered by such a provision need not fear the elimination of their position. Here however, the Appellate Division opined that the staffing provisions at issue do not purport to guarantee a firefighter his or her employment while the CBA is in effect. In the words of the court, "contrary to the City's contention, the staffing provisions do not operate to mandate a total number of firefighters that must be employed; rather, they relate solely to the minimum number of firefighters required to be present during shifts and regular operations."

Rejecting the City contention that staffing provisions "were tantamount of a 'no layoff' clauses," the Appellate Division said that the record establishes that in the course of negotiations the parties viewed the staffing provisions as necessary to protect the health, safety and well-being of unit members. According, the court concluded that Supreme Court was in error when it determined that the staffing provisions were job security provisions not subject to arbitration.

Addressing the second part of the analysis -- whether the parties agreed to arbitrate the relevant dispute --the court concluded that the CBA contained a broad arbitration clause and its determination under that part of the analysis "is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Finding that the City "references the staffing provisions in its labor grievance," the Appellate Division held that the grievance was reasonably related to the general subject matter of the CBA and concluded that the parties agreed to arbitrate the labor grievance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00753.htm