A Year in Review Part II- Court Cases and Other Rulings Presented by Kimberly A. Fanniff Senior Staff Counsel 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 1 Fox v. Costco Wholesale Corp. • 2 nd Cir. joined other federal appellate courts in ruling that hostile environment claims may be brought under the Americans with Disabilities Act – Harassment sufficiently severe or pervasive to create abusive environment – Specific basis for imputing the objectionable conduct to the employer 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 2 1
Bender v. Lancaster CSD • Termination of assistant principal for violation of last chance agreement related to alcohol offenses reinstated by appellate court – Lower court had vacated guilt determination for charges related to last chance agreement and determined penalty shocked the conscience – 4 th Dep’t found termination did not shock the conscience given seriousness of misconduct and position as role model 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 3 Blythe-Blaugh v. City of NY • First department ruled termination did not shock the conscience in case where teacher found guilty of excessive absenteeism and corporal punishment – Teacher failed to seek medical exemption for absences until shortly before charges brought and never actually supplied documentation that her absences or tardiness were due to a medical condition – Teacher previously found guilty in two prior 3020-a proceedings related to absenteeism 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 4 2
Ansley v. Jamesville-DeWitt CSD • Bus driver’s termination for slapping special education student after he punched her overturned by a divided court (Case is on appeal to NYS Ct of Appeals) – Majority found termination excessive penalty in light of driver’s unblemished employment record and she had never made any physical contact with a student previous to this despite 20 incidents in which she had been struck or injured by student – 2 dissenters felt termination was appropriate due to seriousness of incident, violation of school policy and lack of remorse displayed by the driver 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 5 UPSEU v. Enlarged City SD of Troy • PERB affirmed ALJ decision removing nurses, occupational and physical therapists from a unit of nonprofessional titles – Nurses and therapist positions required college degrees & specialized licensing – Daily contact with students, teachers, administrators & parents; collaboration between 3 positions to co-treat common patients – Employee preference not a factor in unit placement 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 6 3
Amalgamated Transit Union v. CENTRO • Employer’s unilateral change regarding procedures for granting requests for use of intermittent leave under FMLA violated the Taylor Law – FMLA and implementing regulations do not preclude bargaining with respect to procedures – Past practice existed such that CENTRO only questioned employees about intermittent FMLA leave where there was individualized suspicion of abuse – CENTRO violated duty to negotiate when it unilaterally implemented procedures where all employees were questioned regarding intermittent use of FMLA leave 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 7 Matter of Brocton CSD • ALJ ordered the union to execute a CBA after ruling a member of the union’s bargaining team publicly failed to support ratification of the CBA and the union vote to ratify subsequently failed – Teacher violated affirmative duty to support tentative agreement (unless give advance notice will not support) – Negative statements regarding increase in pay v. the increase in length of school day both prior to and at ratification meeting 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 8 4
V.W. v. Middle Country CSD • Personal injury claim regarding negligent maintenance of monkey bars may proceed – Student fell from monkey bars at recess & was injured – District’s expert witness testimony was only speculative because monkey bars had been removed from playground when she conducted her inspection • Conclusions regarding installation and appropriate ground cover insufficient to support claim district appropriately maintained premises 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 9 Appeal of Bd. of Educ. of Massapequa • A recount will only be ordered when there is evidence of substantial attack on integrity of tallies such as a showing of fraud or improper conduct – Board sought recount by hand of ballots from one machine wherein 2 sets of candidates eqach received the exact same number of votes based on claim that such result was highly unusual and indicated machine malfunction – Recount denied as no evidence of fraud or improper conduct 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 10 5
Appeal of Hubbard • Bond vote upheld despite claims of improper advocacy and argument that December date for vote was improper – Mailer stating there would be zero tax increase was not false or misleading (new debt would replace that rolling off books) – Radio ads and informational materials urged voters to learn about project and did not improperly advocate for yes vote – December date in compliance with Education Law 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 11 Appeal of Bd. of Educ. of Liverpool CSD • Vote approving a proposition to utilize capital reserve funds for certain projects annulled based upon error in wording of proposition – Money district intended to utilize was from a 2016 capital reserve fund but proposition referred to 2009 capital reserve fund – No evidence in record to conclude voters’ approval of expenditure from 2009 fund would extend to 2016 fund – Error vitiated fundamental fairness of the vote 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 12 6
Appeal of a Student with a Disability • Commissioner concluded that the board erred by finding the student guilty of a materially different charge than what was presented to student and his parents – Modification of the charge was material and violated petitioner’s and the student’s rights to a fair hearing pursuant to the Education Law. – Short term and long term suspension expunged. 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 13 Appeal of J.D. • Student long term suspension for buying and consuming marijuana brownie at school upheld – Presentation of arguments in person to board regarding appeal of long term suspension not required by education law – No evidence superintendent’s presence at executive session where appeal discussed resulted in improper ex parte communications but SD should take steps in future to avoid appearance of impropriety – No right to discovery in long term suspension hearing thus petitioners could not compel district to identify or produce witnesses 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 14 7
Appeal of the Bd. of Educ. of Horseheads CSD • Education Law §912 requires a school district to provide health services to pre-K students enrolled in non public schools in the district – When student is attending non-public school for purposes of receiving instruction the student is attending school for purposes of entitlement to health services under §912 – School districts must enter contracts as required by §912 that specifies the kind of information and documents that will constitute sufficient proof of residency and the consideration to be paid for provision of health services 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 15 Appeal of E.C. • Denial of medical exemption upheld by commissioner – District may investigate to identify medically necessary reason for exemption – Consultation with medical professional at NYSDOH as well a school medical personnel was reasonable method to obtain guidance about potential dangers if student received a live vaccine 23 rd Annual Pre-convention School Law Seminar • Co-hosted by NYSSBA and NYSASA 16 8
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