Challenging the termination of a probationary teacher

Challenging the termination of a probationary teacher

Lewandowski v Clyde-Savannah Cent. Sch. Dist. Bd. of Educ., 2016 NY Slip Op 06594, Appellate Division, Fourth Department

A probationary teacher [Teacher] commenced an Article 78 proceeding seeking a court order annulling the Clyde-Savannah Central School District Board of Education's [Board] decision to discontinue her probationary appointment on the grounds that the Board’s decision was arbitrary and capricious, and an abuse of discretion. Teacher also asked the court to direct the Board to reinstate her to her probationary teaching position with back pay.

The Board moved to dismiss Teacher’s petition on the ground that she had failed to serve a notice of claim as mandated by §3813.1 of the Education Law. §3813.1 required that Teacher serve the notice of claim within three months after the claim arose. Supreme Court granted the Board’s motion to dismiss and Teacher appealed.

The Appellate Division sustained the lower court’s ruling, explaining that the service of a notice of claim is a "condition precedent to bringing an action against a school district or a board of education" and such service was required here. Further, said the court, Teacher had not commenced a special proceeding in the nature of mandamus seeking to vindicate a judicially enforceable right conferred on her by the law and thus her cause of action “is not exempt from the notice of claim requirement.”

Significantly, Lewandowski, a probationary employee, had not attained tenure in her position.  In contrast, the Appellate Division, in Sephton v Board of Education of the City of New York, 99 AD2d 509, held that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”

Further, New York courts have distinguished between proceedings “which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” (see Union Free School Dist. No. 6 of Towns of Islip and; Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, rearg denied 36 NY2d 807).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06594.htm

The employer and individual employees of the employer may be named defendants in an action alleging unlawful discrimination under a "condonation theory"

The employer and individual employees of the employer may be named defendants in an action alleging unlawful discrimination under a "condonation theory"

Emengo v State of New York, 2016 NY Slip Op 06734, Appellate Division, First Department

Benedict O. Emengo filed a  CPLR Article 78 petition in Supreme Court alleging that he was adversely treated by his employer, the New York State Insurance Fund and certain NYSIF administrator* [NYSIF] because his color, national origin and that although he was well-qualified for promotion to positions he sought, was refused promotion to these positions.

Supreme Court granted NYSIF’s motion to dismiss Emengo’s petition but the Appellate Division unanimously modified, on the law, certain of Emengo’s causes of action dismissed by the lower court.

The Appellate Division said the Emengo’s allegations that one administrator told him that “he was an ‘immigrant’ who ‘should be content’ with his current job title, ‘since, as an immigrant, he would never be promoted beyond’ his current title” and that another administrator “was previously found to have discriminated against black NYSIF** employees” constitute sufficient evidence of discriminatory animus.

The court also held that Emengo had “sufficiently alleges that each individual defendant was an ‘employer’ for purposes of his claims, broadly asserting that each individual defendant was a high-ranking manager with, at least inferentially, supervisory powers, including the power to promote, discipline and terminate employees.”

The Appellate Division also noted that Emengo had alleged that “there was a long-standing policy of refusing to promote black NYSIF employees above the title of Supervising Insurance Field Investigator, that all of the individual defendants were at least aware of this policy, that all of the individual defendants were aware that [Emengo] was being refused promotions in accordance with this policy, and that none of the defendants took any action in response to this conduct.” Citing State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, and Patrowich v Chemical Bank, 63 NY2d 541, the court ruled that Emengo had “adequately pleaded employer liability as to all of the individual defendants, under a condonation theory”***within the meaning of Executive Law §296[1][a].

NYSIF agreed that Emengo’s claims against the State of New York and NYSIF "rise or fall with his claims against the six individual defendants," his claims against the State and NYSIF under the State’s Human Rights Law, including his causes of action for retaliation and for aiding and abetting discrimination, should be reinstated.

Emengo has also asked the Appellate Division to reinstate his claims under the New York City Human Rights Law [City HRL]. Supreme Court had dismissed his City HRL claims on the independent ground of sovereign immunity. Emengo, said the Appellate Division, was required on the independent ground of sovereign immunity, whether or not the failed to address this aspect of the Supreme Court’s decision and deemed him to have abandoned his appeal with respect to Supreme Court’s dismissal of his City HRL claims.

* The NYSIF administrators are denominated “John and Jane Doe” in the caption of the decision.

** The decision notes that Emengo “was a black man of Nigerian national origin.”

*** An essential ingredient of condonation is knowledge of the infraction alleged to have been condoned. In Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, the court held that “An employer will be liable for ‘an employee's discriminatory act [where] the employer became a party to it by encouraging, condoning, or approving it.’” Further, said the court, “the term condonation includes … ‘[a]n employer's calculated inaction in response to discriminatory conduct.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06734.htm

Audits of School Districts posted during the week ending October 15, 2016

Audits of School Districts posted during the week ending October 15, 2016

Source: Office of the State Comptroller

[Internet links highlighted in color]

Bradford Central School District – Financial Management (2016M-253)

Purpose of Audit

The purpose of our audit was to evaluate the District's financial management for the period July 1, 2012 through April 15, 2016.

Background

The Bradford Central School District is located in the Towns of Bath, Bradford, Urbana and Wayne in Steuben County and the Towns of Orange and Tyrone in Schuyler County. The District, which operates one school with approximately 275 students, is governed by an elected five-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $8.8 million.

Key Findings

The Board and District officials have not adopted realistic budgets or effectively managed fund balance and, despite the significant amount of accumulated fund balance, continued to raise the tax levy by an average of 2 percent each year or a total of $350,000 over the last three years.

When unused appropriated fund balance is added back, unrestricted fund balance exceeded the statutory limit by amounts ranging from $1.4 million to $1.9 million or 12.8 to 17.5 percentage points.

Key Recommendations

Ensure budgets include realistic appropriations based on actual needs and planned use of fund balance to avoid levying taxes at a level greater than needed.

Ensure that unrestricted fund balance is in compliance with the statutory limit and develop a plan to use excess fund balance in a manner that benefits District residents.

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Corning City School District – Procurement (2016M-222)

Purpose of Audit

The purpose of our audit was to review the District's procurement practices for the period July 1, 2014 through April 26, 2016.

Background

The Corning City School District is located in the Towns of Big Flats and Catlin in Chemung County; the Towns of Dix and Orange in Schuyler County; and the City of Corning and the Towns of Bradford, Campbell, Caton, Corning, Erwin, Hornby and Lindley in Steuben County. The District, which operates eight schools with approximately 4,800 students, is governed by an elected nine-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $102.5 million.

Key Findings

The District's procurement policy does not include procedures for the procurement of professional services.

District officials did not always solicit competition through requests for proposals or obtain or retain quotes or bids.

Key Recommendations

Revise the procurement policy to include clear language addressing the procurement of professional services and require strict adherence to the requirements of the procurement policy.

Solicit competition for professional service contracts and ensure that written or verbal quotes are obtained for purchases that are under bidding thresholds.

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East Moriches Union Free School District – Claims Processing (2016M-273)

Purpose of Audit

The purpose of our audit was to examine claims processing for the period July 1, 2014 through May 31, 2016.

Background

The East Moriches Union Free School District is located in the Town of Brookhaven, Suffolk County. The District, which operates two schools with approximately 730 students, is governed by an elected five-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $25.8 million.

Key Findings

The claims auditor did not properly identify and report all confirming purchase orders to the Board.

The Treasurer did not supervise an account clerk typist's use of her electronic signature to sign the District’s checks.

Key Recommendations

Properly identify and report to the Board all instances of confirming purchase orders.

Discontinue the practice of allowing the Treasurer's electronic signature to be affixed to checks without direct authorization or supervision.

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Merrick Union Free School District – Financial Condition (2016M-240)

Purpose of Audit

The purpose of our audit was to evaluate the District's financial operations and use of fund balance for the period July 1, 2014 through December 31, 2015.

Background

The Merrick Union Free School District is located in the Town of Hempstead, Nassau County. The District, which operates three schools with approximately 1,480 students, is governed by an elected seven-member Board of Education. Budgeted appropriations for the 2015-16 fiscal year totaled approximately $46.9 million.

Key Findings

The Board adopted budgets that overestimated expenditures by a total of $9.3 million and underestimated revenues by a total of $2.8 million from July 1, 2012 through June 30, 2015.

The District's unrestricted fund balance exceeded the statutory maximum for each of the three years reviewed.

Fund balance appropriated by the Board was not used.

The district did not use its reserve funds during the audit period but instead used operating funds to pay for related costs.

Key Recommendations

Adopt budgets that realistically reflect the District’s operating needs based on historical trends or other identified analysis.

Develop a written plan to reduce the level of unrestricted fund balance to legal limits and consider revising the District’s fund balance policy to require compliance.

Discontinue the practice of appropriating unexpended surplus funds that are not needed and not used to fund District operations.

Ensure that reserve funds are used for their intended purpose.

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Local Government and School Accountability Contact Information:

Phone: (518) 474-4037; Email: localgov@osc.state.ny.us
Address: Office of the State Comptroller, Division of Local Government and School Accountability 110 State Street, 12th Floor; Albany, NY 12236