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Two-Part Inquiry for Determining Whether a Dispute is Arbitrable Under a Collective Bargaining Agreement Clearly Explained and Applied

The Third Department determined the dispute between teachers and the board of education (concerning the board’s hiring of a teacher from an outside agency without posting the position as required by the collective bargaining agreement [CBA]) was arbitrable. The court first determined a provision of the Education Law, which allowed hiring from an outside agency, did not erect a policy/statutory barrier to hiring in accordance with the procedures in the CBA. The statute merely allowed the board to hire from an outside agency, but the statute did not preclude the board from using the hiring process agreed to in the CBA. The Third Department then went on to hold there was a reasonable relationship between the subject of the dispute and the general subject matter of the CBA. the only factors a court can look at to determine arbitrability.  The responsibility for any further inquiry and analysis then passed to the arbitrator:

Petitioner contends that arbitration of the subject matter of the dispute is barred by Education Law § 3602-e and public policy. Determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry, the first issue being “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . “[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute” … .

Under the statutory scheme at issue, a “pre[]kindergarten program plan” is defined as a plan “designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies” (Education Law § 3602-e [1] [d] …). Petitioner’s argument rests upon Education Law § 3602-e (5) (d), which states that “[n]otwithstanding any other provision of law, [a] school district[] shall be authorized to enter any contractual or other arrangements necessary to implement the district’s prekindergarten plan.” Contrary to petitioner’s contention, this language does not suggest a legislative intent that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services. A more natural reading of Education Law § 3602-e supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA … . * * *

Having found that there is no public policy prohibition, we turn to the second part of the threshold inquiry — that is, whether the parties agreed to submit the subject matter of the dispute to arbitration … . In considering this issue, we must only ascertain if “there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA” … . Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, 3rd Dept 7-16-15

 

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Question of Fact Whether Negligent Supervision Was the Proximate Cause of the Injuries Plaintiff’s Son Suffered in an Attack by Another Student–the School Was Aware of Prior Assaultive Behavior by the Attacker and the School Was Aware of Recent Threats of Violence (Against Plaintiff’s Son) by the Attacker—The Court Noted that, In a Summary Judgment Motion, the Evidence Is Viewed in the Light Most Favorable to the Nonmovant

The Third Department determined questions of fact precluded summary judgment in favor of defendant high school in a negligent supervision case. Plaintiff’s son, LaValley, was assaulted by another student, Breyette, after plaintiff had alerted school officials about threats of violence made by Breyette against her son. Breyette had a history of assaultive behavior for which he was suspended in middle school. LaValley was punched 37 times in the school cafeteria in close proximity to a teacher who did not intervene and who was not aware of the conflict between the two students. The Third Department noted that, in determining a summary judgment motion, the evidence is viewed in the light most favorable to the nonmovant:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Where a fellow student intentionally injures another, the duty is breached if the school had actual or constructive notice of the conduct that caused the injury such that the acts of the fellow student could have been reasonably anticipated … . The adequacy of supervision and proximate cause are generally issues of fact for the jury … .

Viewing the evidence in the light most favorable to plaintiff as the nonmovant …, we note that Breyette had a history of assaultive behavior, including a previous assault against LaValley in middle school that resulted in Breyette’s out-of-school suspension. There is also evidence that, within the month prior to the assault, Breyette specifically threatened violence against LaValley, and plaintiff testified that she immediately informed the high school principal about this threat. Plaintiff also testified that she brought up the conflict between LaValley and Breyette during a meeting with the principal and her son’s teachers. Although the principal acknowledged that plaintiff had informed him about the conflict and he testified that he spoke to Breyette about it, Breyette denied that the principal had spoken to him prior to the attack. The attack itself occurred in the school cafeteria, in close proximity to a teacher who had not been notified of the threat or the conflict between the two students. According to Breyette, he calmly approached LaValley, called his name to get his attention and proceeded to punch him in the head 37 times without any adult intervention. He did not stop until another student intervened. In light of this evidence, we agree with Supreme Court that factual issues exist with respect to the adequacy of defendants’ supervision and whether the lack of adequate supervision was a proximate cause of LaValley’s injuries … . LaValley v Northeastern Clinton Cent. Sch. Dist., 2015 NY Slip Op 06187, 3rd Dept 7-16-15

 

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Questions of Fact Whether Infant-Plaintiff’s Injury at the Hands of Other Students Was Proximately Caused by Negligent Supervision and/or Negligent Hiring and/or Retention

The Second Department determined the defendant-school’s motion for summary judgment was properly denied.  There were questions of fact concerning whether the school had notice of a student’s prior altercations with infant plaintiff and whether a teacher took appropriate steps to intervene to prevent injury to infant plaintiff. Infant plaintiff alleged he was injured when assaulted other students:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . Here, in support of their motion, the appellants failed to establish, prima facie, that they lacked sufficiently specific knowledge or notice of the dangerous conduct that allegedly caused the infant plaintiff’s injuries … . The appellants’ moving papers failed to eliminate all triable issues of fact as to whether they had knowledge of a particular student’s dangerous propensities arising from his involvement in other altercations with the infant plaintiff … . The appellants’ moving papers also failed to eliminate all triable issues of fact as to whether a teacher failed to take “energetic steps to intervene” to prevent the infant plaintiff’s injuries at the hands of a group of his classmates … . Amandola v Roman Catholic Diocese of Rockville Ctr., 2015 NY Slip Op 06099, 2nd Dept 7-15-15

 

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Parents of Children in Public Schools Had Standing to Seek Court Review of the SUNY Trustees’ Authorization of Charter Schools—The Authorization Was Not Arbitrary or Capricious or an Abuse of Discretion

The Second Department determined parents of children in public schools had standing to bring an Article 78 petition for a review of the SUNY Trustee’s authorization for charter schools. The court determined the authorization was not arbitrary or capricious or an abuse of discretion, noting that there was no requirement of majority community support:

The petitioners, a group of parents of children in public schools in Community School District 14 and an organization they founded to oppose the subject charter schools, commenced this proceeding pursuant to CPLR article 78 to review the SUNY Trustees’ determination authorizing the charters. The amended petition alleged that the SUNY Trustees authorized the charters in violation of Education Law §§ 2851(2)(q), 2852(9-a)(b)(ii), and 2852(2)(a), in that [the charter school organization] failed to demonstrate adequate community support, outreach, or input, and therefore, the charters should be voided. * * *

In authorizing the issuance of charters to the subject schools, the SUNY Trustees were required to find that the proposed schools met all requirements of the Charter School Act (see Education Law § 2852[2][a]). Given the representations and support therefor contained in [the] applications, the SUNY Trustees’ determination that [the charter school organization] met the statutory requirements with regard to evidence “of adequate community support for and interest in the charter school sufficient to allow the school to reach its anticipated enrollment” (Education Law § 2851[2][q]), and public outreach to solicit community input and address comments received from the impacted community concerning the educational and programmatic needs of students (see Education Law § 2852[9-a][b][ii]…), was, insofar as relevant here, not arbitrary and capricious. As the SUNY Trustees and the charter schools correctly contend, majority community support is not required by the Charter Schools Act (see Education Law § 2851[2][q]). Matter of Williamsburg & Greenpoint Parents: Our Pub. Schools! v Board of Trustees, State Univ. of N.Y., 2015 NY Slip Op 05690, 2nd Dept 7-1-15

 

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Teacher Entitled to Tenure by Estoppel—Proper Way to Calculate Probationary Period Which Included Unpaid Maternity Leave Explained

The Second Department determined a teacher was entitled to tenure by estoppel.  The number of days the teacher was on unpaid, approved maternity leave was excluded from the probationary period. Properly calculated (the proper method was explained), the teacher worked beyond the three-year probationary period and was therefore entitled to tenure by estoppel:

Tenure by estoppel results “when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term” … . A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits … .

Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher’s three-year probationary period … . Contrary to the appellants’ contention in this proceeding, such an extension of a teacher’s probationary period is to be performed utilizing a workday-to-calendar day methodology. That is, for each workday missed as a result of a teacher’s unpaid leave, the three-year probationary period is to be extended by the corresponding number of calendar days … . Such a methodology is consistent with both Education Law § 3012(3), which provides that “no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights,” and the purpose of the three-year probationary period in affording a school district an opportunity to evaluate an individual’s performance as a teacher prior to granting tenure … .

Applying the foregoing principles to this proceeding, we conclude that the petitioner worked past her extended probationary period end date. Accordingly, the Supreme Court properly determined that she acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, i.e., January 21, 2011. Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 2015 NY Slip Op 05471, 2nd Dept 6-24-15

 

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Supreme Court Properly Annulled New York Division of Human Rights’ Determination there Was No Probable Cause to Believe the School District Discriminated against Petitioner When It Refused to Hire Her Because of Her Anticipated Absence (Due to Pregnancy)

The Fourth Department affirmed Supreme Court’s annulment of the New York Division of Human Rights’ (SDHR’s) finding, without a hearing, there was no probable cause to believe the school district discriminated against the petitioner. Petitioner was not hired because of her anticipated absence due to pregnancy. The school district’s stated reason for not hiring petitioner was that she was going to be unavailable to counsel students and there was concern about the resulting lack of continuity of counseling services for the students.  However, the petitioner’s unavailability was due to her pregnancy and discrimination could therefore be inferred:

“Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law § 297 (4) (a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis’ ” … . “Probable cause exists only when, after giving full credence to the complainant’s version of the events, there is some evidence of unlawful discrimination” … . “There must be a factual basis in the evidence sufficient to warrant a cautious [person] to believe that discrimination had been practiced” … . The complainant’s factual showing must be accepted as true on a probable cause determination … . While our standard of review is highly deferential to the agency’s determination …, we agree with the court that SDHR’s determination “was not rationally based upon the evidence presented” … .

Executive Law § 296 prohibits an employer from refusing to hire or employ an individual based on, inter alia, the individual’s sex. In opposition to the petition, the District argued that it decided not to rehire petitioner because of her unavailability and its concern for continuity of counseling services for its students. Petitioner was unavailable to work, however, because of her pregnancy, and we conclude that discrimination could be inferred from the record before us … . The District relies on Roslyn Union Free Sch. Dist. v State Div. of Human Rights (72 AD2d 808) in support of its argument that it did not discriminate against petitioner. To the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination (see id. at 809-810), we decline to follow it. Matter of Mambretti v New York State Div. of Human Rights, 2015 NY Slip Op 05384, 4th Dept 6-19-15

 

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Negligence and Proximate Cause Inextricably Interwoven—Verdict Finding that Defendant Was Negligent but Such Negligence Was Not the Proximate Cause of Plaintiff’s Injury Properly Set Aside as Against the Weight of the Evidence

The plaintiff-student was sexually assaulted at school.  The jury found the school was negligent in its supervision of its students, but that the negligence was not the proximate cause of plaintiff’s injury.  The Second Department determined the verdict was properly set aside as against the weight of the evidence.  The issues of negligence and proximate cause were inextricably interwoven, such that finding the negligence was not the proximate cause of injury was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” … . ” A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause'” … .

Under the circumstances of this case, the issues of negligence and proximate cause were inextricably interwoven, such that the jury’s finding that the defendants were negligent, but that their negligence was not a substantial factor in causing the infant plaintiff’s injuries, was contrary to the weight of the evidence … . Victoria H. v Board of Educ. of City of N.Y., 2015 NY Slip Op 05156, 2nd Dept 6-17-15

 

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The Absence of Proof Defendants Disclosed Slanderous Statements Included in Letters to Plaintiff Precluded a “Name-Clearing” Hearing/The Jury Should Not Have Been Allowed to Consider “Ostracism and Rejection” Damages Absent Proof Defendants Were Responsible for Republication of the Slanderous Remarks by Third Persons

In a lawsuit stemming from allegedly slanderous remarks made by defendants in connection with plaintiff’s termination from employment by the defendant school district, the Third Department determined plaintiff’s petition for a name-clearing hearing should have been dismissed, because there was no evidence defendants disclosed the relevant letters to anyone, and the jury should not have been allowed to consider rumor-related “ostracism and rejection” damages, because there was no evidence defendants were responsible for the alleged repetition of the slander by third persons. A new trial on damages was ordered:

Proof of “ostracism and rejection” to establish damages for defamation is only admissible if the proof is “‘the direct and well-connected result'” of a defamatory statement at issue … . Further, even when a defendant’s slanderous statement is connected by proof to that statement’s republication, “‘one who utters a slander . . . is not responsible for its voluntary and unjustifiable repetition, without his [or her] authority or request, by others over whom he [or she] has no control and who thereby make themselves liable to the person injured'” … . This is because “each person who repeats the defamatory statement is responsible for the resulting damages” … .

Plaintiff’s proof regarding rumors and ostracism fail these tests. Plaintiff and her witnesses offered no proof that directly connected [defendants’] slanderous statements to the ostracism that plaintiff allegedly suffered … . Further, even assuming that the content of the rumors allegedly spread by community members allowed for a reasonable inference that said community members were aware of [defendants’] slanderous statements, proof of republication was nonetheless improper given the absence of evidence that defendants had any knowledge of or played any role in such republication … . Compounding the effect of the error, Supreme Court did not instruct the jury that plaintiff had the burden of proving that the ostracism harms that plaintiff allegedly suffered were actually connected to [defendants’] statements, despite defendants’ request that it do so. Wilcox v Newark Val. Cent. School Dist., 2015 NY Slip Op 04890, 3rd Dept 6-11-15

 

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The Three-Year Statute of Limitations in the Education Law Need Not Be Raised as a Defense—Here the Charges Against a Teacher Were Time-Barred—The Department of Education (DOE) Did Not Demonstrate the Charges Were Criminal (to Which the Three-Year Statute Would Not Have Applied)

The First Department determined the third set of charges brought against petitioner-teacher, alleging the teacher improperly obtained his daughter’s admission to NYC Department of Education (DOE) schools for which she was not zoned, was time-barred.  Although the three-year statute of limitations in the Education Law would not apply had the allegations constituted a crime, the hearing officer did not find the teacher’s conduct to be criminal. The court determined that the first two set of charges against the teacher did not justify termination (the penalty imposed) and remitted the matter for a lesser punishment. The court noted that the statute of limitations in the Education Law need not be raised as a defense:

Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(1) as a defense in the disciplinary proceeding. Where, as here, “a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a [s]tatute of [l]imitations which must be asserted by way of defense” … . Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(1) or that the crime exception to the time requirement applied … . DOE failed to meet its burden. Matter of Suker v New York City Board/ Dept. of Educ., 2015 NY Slip Op 04940, 1st Dept 6-11-15

 

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County Was Not Responsible for the Day to Day Operation of Community College and Did Not Own the Dormitory Where Plaintiff’s Decedent Suffered Cardiac Arrest and Died—County Owed No Duty of Care to Plaintiff’s Decedent

Plaintiff’s decedent died of cardiac arrest in a Sullivan County Community College (SCCC) dormitory.  Plaintiff sued the county, alleging the dormitory should have been equipped with a defibrillator and/or should have had an emergency medical response plan in effect.  The Court of Appeals determined the complaint against the county was properly dismissed.  Although the county was the “sponsor” of the community college, it did not own the dormitory and did not manage the day-to-day operation of the community college, which was handled by the board of trustees (Education Law 6306):

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care … . And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred … . Branch v County of Sullivan, 2015 NY Slip Op 04756, CtApp 6-9-15

 

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