Discharge of Tenured Teacher is Sustained, But Could The Teacher Have Done Something Different?

Morales v. NYC Department of Education, ___A.D.3d___(3rd Dep't. May 11, 2017), is an example of a typical decision sustaining the decision of a Education Law 3020-a Hearing Officer which terminated a tenured teacher's employment. I bring the below language to your attention:

The penalty of termination does not shock the court's sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]), given petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by respondent, and her refusal to acknowledge her shortcomings (see Davis, 137 AD3d at 717). (emphasis added).

In my experience most courts and Hearing Officers recognize that teachers and other public employees are human and can make a mistake. Sometimes if they acknowledge their error, a teacher can save her job. Of course, if the teacher or other employee admits to the mistake, they are essentially admitting to the misconduct.

Would the result be different in this case?? We will never know. Also, maybe there was nothing for the teacher to admit to because she did nothing wrong. Maybe the Hearing Officer and the court got it wrong. That happens too. Our system is far from perfect.

Major Law Firm Subject to Sex Discrimination Suit

The New York Law Journal recently reported that a partner at a major law firm suit her firm for discrimination, here. A copy of the complaint, which was filed in the District of Columbia, is available here.
I bring this case to your attention because it presents an interesting legal issue of whether a partner can bring a claim under employment discrimination and other statutes designed to protect "employees". Though not stated in the article, that is likely an issue that is going to be raised.
I wrote a law review article on a similar topic a few years ago. You can download a copy of my article by clicking here.

NYS Divsion of Human Rights Cannot Investigate Broad Policies Without Providing Notice

Matter of MTA Bus Co. v. NYSDHR, ____A.D.3d ____(3rd Dept. May 16, 2017), is an interesting case to be aware of. While investigating an individual case of employment discrimination, the NYSDHR went on to examine certain employer policies which it found to be discriminatory. The problem is that NYSDHR did not give the employer the opportunity to be heard with respect to those employment policies. As the court stated:

The record demonstrates, and respondent determined, that the complainant, a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder, namely, his reckless driving record, and that petitioner was justified in terminating him based on his conduct in vandalizing three buses in passenger service. Respondent awarded the complainant no damages. However, rather than dismissing the complaint, it proceeded to conclude that "[b]ecause [petitioner] has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [petitioner] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [petitioner's] policy violates the Human Rights Law." In making this determination without notice to petitioner that its policies were going to be reviewed, respondent denied petitioner its right to due process. While, upon its own motion, respondent may investigate and file a complaint alleging discriminatory practices (Executive Law §§ 295[6][b]; 297[1]), it did not do so here. It could not, while investigating the bus operator's complaint, which was filed solely on his behalf, find that he had not been discriminated against "and at the same time, make broad findings and impose broad sanctions pertaining to petitioner['s] over-all operations"

Supremes Hold That Arbitration Agreements Must Be Treated Like Any Other Contracts

In Kindred Nursing Home v. Clark, ___U.S.___(May 15,2017), the Supreme Court, once again, treated agreements to arbitrate in a favorable fashion.
At issue was whether an individual with power of attorney, could enter into an arbitration agreement. The Kentucky Supreme Court said no, but the U.S. Supreme Court reversed, reasoning in part:

The Act’s key provision, once again, states that an arbitration agreement must ordinarily be treated as “valid, irrevocable, and enforceable.” 9 U. S. C. §2; see supra, at 4. By its terms, then, the Act cares not only about the “enforce[ment]” of arbitration agreements, but also about their initial “valid[ity]”—that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. 

Justice Thomas wrote an interesting dissent where he stated that he would hold that the Federal Arbitration Act does not apply in state courts.

NYC Freelance Act Goes Into Effect

Local Law 140 of 2016 takes effect on May 15, 2017.
NYC's web site  describes this new statute as follows:

The law establishes and enhances protections for freelance workers, specifically the right to: •    A written contract•    Timely and full payment•    Protection from retaliation
The law establishes penalties for violations of these rights, including statutory damages, double damages, injunctive relief, and attorney’s fees. 
Individual causes of action will be adjudicated in state court. 
Where there is evidence of a pattern or practice of violations, the Corporation Counsel may bring civil action to recover a civil penalty of not more than $25,000. 

The Press Release the Mayor signed when the law was enacted is available here.

Teacher's Lack of Testimony Can Be Used Against Her in a 3020-a Proceeding

Varriale v. City of New York, ____A.D.____ (1st Dep't. 2017), is an important decision to be aware of.  The court sustained the termination of a teacher with no disciplinary history and thirteen (13) years of seniority for escalating a confrontation with a student, by yelling expletives and threatening violence.  Of significance, is that the teacher did not testify on her own behalf and she did not express remorse for the conduct. The arbitrator was permitted to draw a negative inference because of that. As the court stated:

Petitioner also showed no remorse nor appreciation for the seriousness of her conduct (see e.g. Matter of Villada v City of New York, 126 AD3d 598, 599 [1st Dept 2015]) to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record (Matter of Carangelo v Ambach, 130 AD2d 898, 900 [3d Dept 1987], appeal denied 70 NY2d 609 [1987]).

7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld a state law which required public sector employees to pay an amount equal to union dues, but not join the union. This landmark First Amendment decision compromised the right of objectors (by recognizing that they do not have to join the union) as well as the right of unions (by allowing them to collect what are essentially dues because they have the obligation to represent non members).

In a series of cases, the concept of Agency Fee has been under attack. The Supreme Court granted cert and last term, split 4-4 after the death of Justice Scalia.

On March 21, 2017, the 7th Circuit-in an opinion by Judge Posner-decided a case that just may make it to the Supreme Court. Janus v. ASFME, ____F.3d____(7th Cir. March 21, 2017). The outcome of this case was never in doubt because the 7th Circuit was bound to follow Abood.

Will the Supremes grant cert in this case. I think they will. Why? First, Judge Posner is probably one of the most respected circuit judges. Additionally, the case was decided on a motion to dismiss and it presents purely a legal question. Third, the Supremes just split 4-4 on this very issue which by definition illustrates that this case involves an important legal issue.

What will the Supremes do? That is anyone's guess. Though I heard that our new Justice has never ruled on an agency fee issue, he is known to be conservative and he was appointed by let's say, not the most liberal President. So, some public sector unions are in for the fight of their life.

Terminated Teacher Wins Her Job Back By Appealing Her 3020-a Decision

Matter of Mirenberg v. NYC Dept. of Education, Index No. 653846 (N.Y. Co. April 17, 2017), NYLJ at 1 (May 11, 2017), demonstrates that Education Law 3020-a decisions can be appealed and won.

Here, a Education Law Section 3020-a terminated a teacher for excessive absences and because she submitted fraudulent doctor notes. Significantly, if the teacher used her accumulated leave, she would not have needed to submit doctors notes. Evidence was also submitted that the teacher had a anxiety disorder.

The court held the fact that the teacher may have been entitled to this leave anyway may ameliorate that fraud and denied the DOE's motion to dismiss the petition, reasoning:

The Hearing Officer nowhere concludes that, if excessive absences were removed from his analysis,petitioner's dishonesty alone would warrant termination of his employment. As petitioner urges, the very fact that he did not need the physician's notes to obtain paid leave, as the complete record will disclose accumulated vacation leave to cover all the days for which he used the notes, shows that a disorder affected his judgment, negates any dishonest derivation of compensation, and otherwise ameliorates his dishonesty. Therefore the penalty imposed, if no longer based on the excessive absences, may be disproportionate.

Attorneys Fees Available Under NYS Law In Sex Discrimination Case Against The State

Kimmel v. State of New York, ____N.Y.3d _____(May 9, 2017), is an important case to be aware of.
A divided Court of Appeals held that the Equal Access to Justice Act contained in CPLR Article 86 permits the award of attorneys fees and costs under the NYS Human Rights Law for sex discrimination by a state agency.

Significantly, this case also held that under this statute, attorneys fees were not available in connection with administrative agency proceedings that preceded court review. Note, that in 2015, the law was amended to allow for an award of attorneys fees in sex discrimination cases under state law. This case arose before that amendment.

The case also reaffirmed in footnote 5, that discrimination cases are not tort cases and therefore, a Notice of Claim does not have to be filed

The plaintiff in this case, a state trooper, recovered over $700,000 in damages, which included $87,000 for pain and suffering. The plaintiff was also earlier awarded $76,000 in attorneys fees because of the the State's overly aggressive tactics and the court struck the State's answer because of their failure of comply with discovery and earlier court orders.

Public Employee Successfully Wins Article 78 Proceeding And Gets His Job Back

Sullivan v. County of Rockland, ___A.D.3d___(3d Dept. May 3, 2015), is an interesting case.  An employee was terminated for making a false entry into the employer's computer system. While the finding of guilt was upheld, the court found that termination was too harsh of a penalty. As the court explained:

An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Waldren v Town of Islip, 6 NY3d 735, 736; Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776; Matter of Harp v New York City Police Dept., 96 NY2d 892, 894; Matter of Sassi v City of Beacon, 145 AD3d 789). A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals (see Kelly v Safir, 96 NY2d 32, 38; Matter of Tomczak v Board of Educ., Eastchester Union Free Sch. Dist., 144 AD3d 1165, 1166; Matter of Smith v Tuckahoe Hous. Auth., 111 AD3d 642, 643).
Here, the penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to DSS or the public. Under the circumstances of this case, the penalty of termination of employment for a single incident is so disproportionate to the offense as to be shocking to one's sense of fairness, and constitutes an abuse of discretion as a matter of law (see Matter of Diefenthaler v Klein, 27 AD3d 347, 348; Matter of Murray v Ilion Water Commn., 9 AD3d 903, 904; Matter of Lewandowski v Port Auth. of N.Y. & N.J., 229 AD2d 360, 361; Matter of Allman v Koehler, 161 AD2d 114, 115). The petitioner's actions were not so egregious or of such moral turpitude as to justify termination of his employment in light of his previously unblemished record (cf. Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856, 857; Matter of Brais v Board of Educ. of Massena Cent. School Dist., 92 AD2d 706, 707).