Claim for back pay upon reinstatement rejected

Claim for back pay upon reinstatement rejected

Koppman v. Board of Education, 95 A.D.2d 777

In Koppman the Appellate Division held that a former probationary employee had no claim in law for the payment of back salary upon reinstatement to service.

The employee had not been removed unlawfully, said the Court, and therefore “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, §1, of the State Constitution).

Police officer dismissed for reckless handling of a firearm

Police officer dismissed for reckless handling of a firearm

Rider v. Board of Trustees, Village of Rockville Center, 78 A.D.2d 856

The Appellate Division upheld the dismissal of a police officer charged and found guilty of reckless handling of firearms. However, the Court found that the police officer was entitled to back pay for the period of his enforced absence prior to the determination of guilt in excess of the 30 days without pay authorized by §75 of the Civil Service Law.

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Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03948.htm

Educational malpractice

Educational malpractice

Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm the Supreme Court held that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.