Standards used in higher education for granting or denying faculty members tenure not applicable to faculty in a primary or secondary school

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty members seeking tenure in a primary or secondary school

Donnelly v Greenburgh CSD #7, USCA, Second Circuit, Docket No. 11-2448-CV

Edward Donnelly, a probationary teacher employed by Greenburgh, challenged the school district’s decision denying him tenure.

One of the issues addressed by Second Circuit in adjudicating Donnelly’s appeal of the District Court’s granting the school district’s motion for summary judgment dismissing his petition concerned the magistrate judge’s conclusion that Donnelly he had not shown that he was qualified for tenure "under the standard ... applied to plaintiffs complaining of a discriminatory denial of tenure in the context of colleges and universities," as set out in Zahorik v. Cornell University, 729 F.2d 85.

The district court held that Donnelly had failed to demonstrate his qualification for tenure under Zahorik.  Considering that issue “dispositive,” the district court did not address Donnelly’s other arguable claims [see Donnelly, 2011 WL 1899713, at 1]. 

The Circuit Court noted that typically "a plaintiff-employee challenging an adverse employment action as discriminatory or retaliatory need not do much to establish his qualification for the position he holds or seeks." It then commented that it had previously ruled that "in the related context of employment discrimination, 'the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job.'" The district court, however, had held Donnelly, to a much higher standard.  

The district court, said the Circuit Court, concluded that, in order to show that “he was qualified for his position,” Donnelly must meet “the exacting standard [the Second Circuit has] applied in the context of allegations of discriminatory denial of tenure to university professors.”

Whatever the merits of that analysis in the university context, however, said the court, "neither we nor any other appellate court we have identified has ever applied the standards Zahorik pronounced to teachers denied tenure in elementary or secondary schools.  We decline to do so now." 

The Circuit Court ruled that while both university and high-school teachers may be awarded “tenured” positions that provide long-term employment and protections against arbitrary dismissal, “the two contexts have very little in common.” 

Although both high school teachers and scholars at universities and colleges are subject to individual performance evaluations at a predetermined stage of their careers that can lead either to the tenure or “to adverse employment events,” the Second Circuit said that “subjecting those two processes to the same analysis in the face of allegedly unlawful denial of promotion does not logically follow.” 

Concluding that Donnelly had presented “a genuine issue of material fact as to whether he worked enough hours to be eligible for FMLA leave; (2) the standard governing our review of allegedly unlawful university tenure denials is inapplicable to such denials in public high schools; and (3) [Donnelly] has adduced sufficient evidence of FMLA retaliation to survive a motion for summary judgment” the Circuit Court reversed the district court’s decision and remanded the matter for further consideration.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/doc/11-2448_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/hilite/

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position
Bett v City of Lackawanna, 53 AD3d 1097

A firefighter was disabled, preventing him from performing his duties as a firefighter and he was paid him his full salary until he was terminated after he failed to report to work for light duty.

The firefighter sued and the court found that he was entitled to continue receiving his salary because Lackawanna had never made a determination pursuant to General Municipal Law §207-a (3) that he was medically able to perform light duties [see Bett v City of Lackawanna, 132 Misc 2d 630, affirmed 132 AD2d 951, 76 NY2d 900).

In this subsequent action the firefighter contended that Lackawanna is barred by principles of res judicata or collateral estoppel from now determining whether he is medically able to perform light duty work pursuant to General Municipal Law §207-a(3).

The Appellate Division rejected his argument. While Lackawanna could not discharge the firefighter because he failed to report for light duty work as it had not establish at that time that he was medically able to perform such work, Lackawanna is not precluded by that prior litigation from now evaluating the firefighter's medical condition. Indeed, said the court, it is because the firefighter is receiving the full amount of his "regular salary" pursuant to §207-a (1), he is required to undergo periodic medical evaluations.

The court also dismissed the firefighter’s claim that “the principles of equity and fairness” bar Lackawanna from ordering him to perform light duty work.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/prior-litigation-does-not-bar.html

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Smith v Commissioner of Labor, 2012 NY Slip Op 05887, Appellate Division, Third Department

An applicant for unemployment insurance benefits received two notices of rejecting his claim for benefits.  

In response to his filing a request for an administrative hearing challenging the denial of his claim, an Administrative Law Judge ruled that the request for the hearing was untimely filed. The Unemployment Insurance Appeals Board affirmed the ALJ’s decision and the applicant challenged the Board's ruling.

The Appellate Division sustained the Board’s ruling, noting that §620(1)(a) of the Labor Law provides that in the event an applicant for unemployment insurance benefits is dissatisfied with an initial determination, he or she must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so.

In this instance the applicant admitted that he had received the notice of determination shortly after it was mailed and was aware of the 30-day time limit for requesting a hearing.

Noting that the applicant had testified that he failed to request a hearing within 30 days “because he thought he needed to wait until his summer employment ended to do so, and he stated that he received advice to that effect from Department of Labor employees following the initial denial of his application for benefits,” the Appellate Division held that “neither claimant's confusion regarding the two notices … nor the erroneous advice from the Department … provides a basis for us to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05887.htm