BLONDS MAY HAVE MORE FUN, BUT NOT MORE RIGHTS
This case takes hostile work environment to the next level. In Shramban v. Aetna, the plaintiff's supervisor told her that if she didn't want to work overtime, than she should quit! The solution to this personality conflict was to transfer the plaintiff to another work site. This caused the Plaintiff to suddenly remember that her supervisor also made discriminatory remarks about her ethnicity, personal relationships, and, oh yes, about her being blond (a plethora of blond jokes?). On a motion to dismiss, the Judge found that the comments regarding the worker's personal relationships and national origin weren't sufficient to create a hostile work environment; and he further expressly noted that being blond was not a protected category under Title VII!
RED LIGHT, GE ABLE TO TELL THE DIFFERENCE?
Consider the typical traffic light... red on top/yellow/ green on the bottom. Everyone knows that and you do not have to "see" the colors to respond appropriately. Using that argument a bus driver sued under the Americans with Disability Act (ADA) when he was let go after his company found out he was color blind. That the Second Circuit Court of Appeals ultimately threw the case (Shannon v. New York City Transit Authority) out is no surprise (think of a flashing light intersection -- one side flashes yellow, for caution, the other side flashes red, or was it yellow?-- and requires a driver to make a full stop) but the cranial gymnastics the court went through to reach that result is. Rather than simply using the flashing light example and saying that of course being able to tell red from yellow and green is a bona fide, and essential, requirement to hold a driver's position, they danced through vehicle and traffic law regulations regarding licensing of drivers, and Federal and State DOT regulations relating to vision requirements to reach the same conclusion. (Are judges now being paid by the word; or are they too timid to rely upon common sense?)
*CAPABLE, COMPETENT, BUT CONTRARY IS THE TICKET T O....U N E M P L O Y M E N T !
Matter of Mataraza v. Newburgh Enlarged City Sch. Dist (S.D.N.Y.), reminds us that free speech carries costs. The plaintiff was one of several program specialists who were excessed. All of them applied for assistant principal vacancies; all were appointed except Mr. Mataraza. He was found to have been at least as qualified as his peers who got the assistant principal positions, he had sufficient seniority, and his job evaluations were all good. Of course he sued.... but lost! It turns out that while Mr. Mataraza performed his duties as program specialist properly, he was quite vocal, and public, in his criticism about the District's curriculum alignment policy. That was the basis for denying him the assistant principal position. His First Amendment retaliation claim failed because, in light of his publicly expressed opposition to the District's policy decision, it was felt that he, or his expressed opposition, would disrupt the District's ability to deliver services. But would it? Mr. Mataraza argued that unless the District could show actual disruption rather than a likely interference, he should get the appointment. The Court disagreed. Plaintiff's public criticisms were "precisely the sort of remarks that could cause a reasonable employer to conclude that the maker was not wholeheartedly with the program, and that he might well become either the focal point of dissent and/or a sympathizer with dissenters."
A PRINCIPAL IN EVERY SCHOOL
The Bedford Central School District started the 2002 school year short one principal. To address the situation the Board designated the Superintendent as the principal for the building, and also appointed a teacher to serve as "teacher in charge".
Even though the "teacher in charge" immediately enrolled in courses to get administrative certification, a resident brought suit, contending that there should be a fully certified administrator in charge of the building at all times. By the time the Commissioner decided this case (SED . Dec # 14,959) the teacher-incharge was certified, and had been appointed as principal. The case was dismissed on grounds of mootness, but none-the-less made it a point to opine that: (1) A board of education must assign a full-time principal holding the appropriate certification to each school, and therefore, a superintendent could not serve as both full time superintendent and full time principal the same time; and, (2) A principal must possess the requisite certification at the time of appointment; subsequent completion of academic requirements and application for certification do not comply with the law.
COLLECTIVE BARGAINING RIGHTS VS. AMERICANS WITH DISABILITIES ACT
In Stamos v. Glen Cove Sch.Dist. (No. 02-9300 (2nd Cir.) a teacher's request to be transferred to another building was denied while the requests of other teachers who were younger than she were granted. The teacher sued and claimed requests for transfers were "routinely" granted when made, so the denial of her transfer violated the ADA (she claimed she was disabled) as well as the Age Discrimination in Employment Act (ADEA). The Court dismissed the ADEA claim and pointed out that the Plaintiff failed to provide any proof that transfers were "routinely" granted to rebut the District's statement that albeit frequent, they were not a matter of routine. Indeed, the District demonstrated that the teachers who were transferred had more seniority than the Plaintiff did. The Court would not force the District to violate its seniority system. As to the ADA claim, that fared no better. The Court noted that "the ADA mandates reasonable accommodation of people with disabilities... it does not authorize a preference for disabled people generally."
DOT YOUR I'S AND CROSS YOUR T'S
The procedural requirements before suspending a student for 5 days or less by now should be clearly understood by all, but apparently that is not universally true. A case in point arose in the North Colonie C.S.D. (Dec.# 14934). While chaperoning an overnight girls athletic contest, teachers making a bed check suspected some girls had been smoking marijuana; and, according to the coaches they admitted to it. Upon their return to school the girls were called out into the corridor by the hall principal who told them of the coaches report and the suspension penalty that he would impose. That same day the parents of one of the girls went to school and discussed the matter with the hall principal and head coach and were told of the 5-day suspension which was to begin the following day.
Written notice of the suspension was send via registered mail, but it went to the wrong address. By the time the notice got to the proper house the suspension had already been served. The parents of the girl asked the Commissioner to annul the suspension and expunge it from the student's record.
The Commissioner agreed. The failure to properly give written notice to the parents within 24 hours was the obvious error committed by the district. The District also failed to provide the student with a proper opportunity to question complaining witnesses (the coaches) in the presence of the principal. Furthermore, the recent changes in the law do not empower a hall principal to make a suspension decision; and, finally, since the decision to suspend was within the authority of the building principal the parents meeting with the coaches should have been held in his presence.
PLEDGE OF ALLEGIANCE
The Elk Grove Unified School District v Newdow case regarding the phrase "under God" in the Pledge of Allegiance is one that excites the political passions. How the U.S. Supreme Court will deal with this issue, and how in this election cycle our politicians will react to the Court's decision, is anyone's guess.
The facts of the case are really quite simple but some of the underlying nuances have not been given sufficient airing. We remedy that by this writing.
1. The father, Plaintiff, who brought this suit on behalf of his non custodial, out-of-wedlock
daughter is a self-professed atheist. 2. The child's mother said her reciting the pledge troubled neither her nor her daughter.
3. Although the school district's policy requires teachers to lead their class in the Pledge at the beginning of each day, the father was told that his daughter was not required to join her classmates in reciting it.
4. The father argued, and both the district court and 9th Circuit Court of Appeals agreed, that his daughter was injured because she had to watch and listen as her teacher led her classmates in the Pledge, which he described as a ritual proclaiming there is a God.
The author of this piece sees three options open to the Supreme Court in resolving this case:
Option 1. Dismiss the case on procedural grounds since at the time he started the suit the plaintiff was a non-custodial parent. While the Pledge bothered him, it was apparently of no concern to the custodial parent or to the student herself.
Option 2. Decide that the reference "under God" is merely an acknowledgement of America's historical religious heritage and therefore not an unconstitutional establishment of religion.
Option 3. Deny reality and hold that the mere phrase "under God" constitutes the establishment of a religion.
[Note: The above is how your writer sees the case, your contrary views and opinions are invited.]
SPECIAL EDUCATION HEAD RESIGNS
Robert Pasternak, U.S. Assistant Secretary for Special Education, announced his resignation this week, effective, January 2, 2004. In a short statement, Secretary Paige thanked Pasternak for his public service and commended him as an effective advocate on behalf of the 6.5 million youth with disabilities. Pasternak will enter the private sector, although his future plans are unavailable.
Federal Update, NASBE
NO VOUCHER SYSTEM LEFT BEHIND?
We must wonder how voucher proponents in the District or in the Congress could accept a bill that has been stripped of requirements that private school teachers have a college degree, that the standard tests used for evaluation of voucher students be the same as those used for DCPS students, and that evaluation of these students be performed by an independent entity, as such alterations and deletions show the fix is screwed in tight. The bill was never a pilot to be used to test vouchers, as claimed. The changes show that the bill's sole purpose always has been to impose vouchers permanently, whether they succeed or fail.
Rep. Eleanor Holmes Norton (D-DC)