Bullying in Schools, Public Employee “Discipline,” Can’t Get Flood Ins.? You Still Have to Pay Rent

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Bullying in Schools

Bullying in SchoolsBullying by children has always been a problem. Children will always engage in a certain degree of name-calling and teasing. It is fair to then ask, to what extent a school district can be held liable for student-to-student bullying or harassment. Two very recent federal court cases make clear that school istricts have a duty to protect their students from harassment, or potentially find themselves subject to liability for “deliberate indifference.”

In Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012), the U.S. Court of Appeals, Second Circuit, affirmed a one million dollar jury award in favor of the plaintiff, Anthony Zeno, a “dark-skinned and biracial (half-white, half-Latino)” student. Anthony moved to the District as a freshman, and was subjected to racial bullying since the first day he started school at Stissing Mountain High School (“SMHS”), and it persisted until he left school 3 ½ years later with his IEP Diploma — choosing not to continue attending SMHS to receive his regents diploma.

Anthony ultimately sued the District under Title VI of the Civil Rights Act of 1964. The Court, in assessing liability, applied the “deliberate indifference” standard outlined by the U.S. Supreme Court in Davis v. Monroe County Bd. of Educ. which assigns liability if the plaintiff establishes four elements: (1) substantial control, (2) severe and discriminatory harassment, (3) actual knowledge, and (4) deliberate indifference.

The court’s discussion focused upon the fourth element, “deliberate indifference,” which evaluates the sufficiency of the District’s response “in light of the known circumstances.” As the “known circumstances change, the sufficiency of a response may also have to evolve.” Here, the jury concluded that the District’s response was not sufficient. The District argued that it could not have acted with “deliberate indifference” because each known harasser was disciplined; however, disciplining Anthony’s harassers did not work — it only made the harassment increasingly severe. Yet, it took the District over a year to implement any non-disciplinary remedial action.

The District knew that the harassment targeted, primarily, Anthony’s race and color, but little was done to address this aspect of the harassment pecifically, and that which was done was half-hearted. The District’s first attempt at racial sensitivity training took place nearly 21 months after the harassment began, and attendance was optional. The District denied offers from the Dutchess County HRC and the N.A.A.C.P. to provide a free shadow for Anthony and/or racial sensitivity training.

In a similar case, G.D.S. v. Northport-East Northport Sch. Dist., No. 12-CV-2191 (E.D.N.Y. Dec. 22, 2012), the plaintiff, a 16-year old Jewish boy attending Northport High School (“NHS”), alleged that he was subjected to harassment from other students in school because he was Jewish. The complaint stated that he was subjected to anti-Semitic slurs, stereotypes, as well as deplorable insults about the Holocaust. Twice the plaintiff submitted an essay in English class detailing the anti-Semitism he had encountered at NHS — never was any action taken. Plaintiff alleged that his parents had meetings with school administrators to attempt to remedy the situation, but their attempts also proved futile.

The plaintiff’s complaint alleged that the acts and omissions of the District violated his clearly established rights under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. Although the plaintiff rticulated a somewhat different claim than in Zeno, the District’s motion to dismiss was ultimately decided on the same basis — did the plaintiff’s complaint allege facts which demonstrated that the District acted with “deliberate indifference?” The court found that it did. “[T]he supposed lack of action by the Defendants to either educate students about the harms of such religious discrimination or investigate and discipline the harassers was an inadequate response and thus, clearly unreasonable.”

These two cases from this past December make clear that school districts must act reasonably in light of the circumstances when apprised of student-to-student harassment, particularly when the harassment is based upon a student’s race, ethnicity, religion, gender or sexual orientation. When a problem does come to light, it should be documented and formal discipline should be imposed upon the harassers. As demonstrated in Zeno, if discipline does not curtail the harassment, different additional paths should be taken to educate students about tolerance. When cultural sensitivity programs are utilized, they should be specifically tailored to the particular problems the district is experiencing. Taking immediate and proper action can be the difference between a jury finding a district to have acted reasonably or “deliberately indifferent.”

Public Employee “Discipline”

Public Employee “Discipline”On October 18, 2012, the NYS Court of Appeals in D’Angelo v. Scoppetta, 19 N.Y.3d 663, 954 N.Y.S.2d 772 (2012) held that the FDNY must remove a letter detailing a fireman’s misconduct from his file, because the letter constituted “discipline,” and the fireman was not afforded a prior hearing. The decision is important because it gives us a better understanding of when critical letters can and cannot be placed in a public employee’s file without a hearing.

In 2006, an EMT working with fireman D’Angelo filed a complaint with D’Angelo’s supervisor alleging that the fireman “assaulted him and yelled a racial epithet at him.” The complaint made its way up the chain of command within the Department, and after two full years of internal investigations a letter was placed in the fireman’s personnel file. The letter, characterized as a “formal Notice of Disposition of the filed Complaint,” was issued by the Department’s Commissioner and stated that the fireman “exercised unprofessional conduct,” “made an offensive racial statement,” and mandated that he participate in additional EEO training.

The fireman objected to the letter’s placement, contending he was denied due process by not being afforded a hearing prior to the letter’s placement. The Department argued that it did not have to afford him a hearing, relying on the 1981 NYS Court of Appeals case Holt v. Bd. of Educ. of Webutuck Cen. Sch. Dist., 52 N.Y.2d 625, 439 N.Y.S.2d 839 (1981). Holtpreviously settled the law that public employers could place written “critical evaluations” in their employees’ files, and only “formal reprimands” triggered due process protections. The D’Angelo Court distinguished the fireman’s letter from Holt, because the letter (1) was issued by the Commissioner, rather than an immediate supervisor, (2) was written after a formal investigation, (3) detailed conduct which in no way could be characterized as a “minor breach” of the Department’s policy, and (4) could negatively impact the fireman’s eligibility for future promotion. As a result, the letter was expunged from the petitioner’s permanent file.

Prior to D’Angelo, public employers were afforded wide discretion when placing a letter in an employee’s file. What we have learned from D’Angelois that in the absence of a prior hearing, a letter can be placed in a public employee’s file by the employer only if:

  1. the letter is issued by a supervisor, not the entity governing board or Director;
  2. the letter is not the result of a formal investigation;
  3. the conduct sought to be corrected by the letter is “minor”; and
  4. the future implications of the letter are minimal and no punishment is imposed.
If not, the letter likely constitutes “discipline,” triggering that employee’s right to a hearing.

Can’t Get Flood Insurance? You Still Have to Pay Rent

Can’t Get Flood Insurance? You Still Have to Pay RentA Federal Court in upstate New York recently made clear that a commercial tenant’s inability to procure all risk insurance mandated under the lease because of repeated flooding is not a valid reason to terminate the lease.

In 2004, Gander Mountain Co, a national retail network of outdoor sporting goods stores, entered into a fifteen year lease for the rental of a building in Johnson City, New York, in a location directly adjacent to Finch Hollow Creek — a tributary of the Susquehanna River. From 1986 through 2000, the area in and around Johnson City experienced at least four severe floods; March 1986, April 1993, January 1996 and February 2000. All four times the premises severely flooded.

Notwithstanding this recorded history of flooding, Gander Mountain entered into the lease. The lease mandated Gander Mountain to maintain a certain level of property insurance, which, for a while, it did. However, after the second of two devastating floods to the building in September 2011 from Tropical Storm Lee (the first was in June 2006), Gander Mountain was no longer able to obtain the requisite insurance due to the property’s history of flooding. As a result, in April 2012, Gander Mountain discontinued operations.

On May 15, 2012, Gander Mountain filed a complaint which sought, among other things, to terminate its lease with the defendant-landlord. It argued that the September 2011 flood event, which left it unable to procure insurance, “frustrated the lease” to a level rendering its performance impossible. The court outright rejected this contention.

Under New York law, “the doctrine of frustration of purpose discharges a party’s duties to perform under a contract where an unforeseen event has occurred, which, in the context of the entire transaction, destroys the underlying reasons for performing the contract, even though performance is possible.” Gander Mountain Co. v. Islip U-Slip LLC., 2013 WL 528444, *5 (N.D.N.Y. Feb. 11, 2013). Therefore, the inquiry is whether “the party seeking to avoid liability could have anticipated the frustrating event and guarded against it.” Id. at *6. In a commercial setting, “frustration only applies where the parties could not have provided for the frustrating event through contractual safeguards.” Id. at *5.

Here, the lease included a provision requiring Gander Mountain to “repair and restore” the premises in the event of a disaster. More importantly, the subject flooding was clearly foreseeable. The court was therefore unwilling to allow Gander Mountain, a commercially sophisticated entity who was or should have been aware of (i) the possibility of flooding, and (ii) the accompanying risk that all-risk property insurance would not always be available, to escape from its liability under the lease, and properly dismissed Gander Mountain’s action.

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