Termination Threats | New Adverse Possession | Injunctions

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A Threat To Terminate An Employee Is Not “Adverse Employment Action”

The United States District Court in the Eastern District of New York recently dismissed a former teacher’s claim alleging that she was discriminated against on the basis of her gender, in violation of Title VII of the Civil Rights Act. The facts of the case, Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215 (E.D.N.Y. 2012), were mostly uncontested.

The Plaintiff, a former probationary kindergarten teacher with the Sayville School District, went on maternity leave just as “Winter Break” commenced in February of 2009. The District assigned a replacement teacher to take over for Plaintiff when school reconvened after break. Soon after Plaintiff’s replacement began working, she became aware that student assessments and report cards were coming due; however, Plaintiff did not complete the assessments, nor did she leave the replacement with ample information to complete them. Plaintiff’s replacement had only known the students for a matter of weeks, and could not possibly have completed the assessments on her own; that’s when the administration became involved.

As it turned out, the administrators for the District had a great deal of trouble getting in contact with the Plaintiff, and the District became concerned that the report cards might not be timely completed. After numerous phone calls and messages left by both parties, the Superintendent sent laintiff a letter expressing her displeasure with the report card situation, and stated that she was disappointed that Plaintiff failed to complete the assessments before going on leave. Ultimately, the Superintendent sent Plaintiff a letter stating that she was recommending to the Board of Education that her services be terminated. The letter also advised Plaintiff that she was entitled, upon request, to a written statement outlining the reasons behind this recommendation and a response, but Plaintiff made no such request. However, prior to the Board taking any action, Plaintiff resigned. Plaintiff then commenced this action alleging that the District violated her Title VII rights.

In order to state a claim under Title VII of the Civil Rights Act, a plaintiff must allege facts which demonstrate four basic elements: “(1) that she is a member of a protected class, (2) who performed her job satisfactorily, (3) but suffered an adverse employment action (4) under circumstances giving rise to an inference of discrimination (or retaliation).” If a plaintiff does so, the burden shifts to the employer who now must “articulate a legitimate, nondiscriminatory reason for the employment decision.” If the employer does, the “burden [] shifts back to the plaintiff to show . . . that more likely than not the employer’s decision was motivated, at least in part, by a discriminatory reason.”

Here, the Court granted summary judgment because the Plaintiff never demonstrated the third basic element — that she suffered an “adverse employment action.” The Plaintiff argues that she suffered several, including “(1) being reassigned to kindergarten, (2) receiving the smallest of the three kindergarten classrooms, (3) being assigned [a] student with Down Syndrome, as a student without special services, and (4) not receiving adequate aid time.” The court dismissed all of these arguments. First, “not receiving a requested or desired assignment is not an adverse employment action.” Further, a “materially adverse” employment action must be more than a “change in working conditions” and instead must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.”

The Court also held that the Superintendent’s recommendation to the Board that Plaintiff be terminated was not an adverse employment action. “Threats of termination do not, by themselves, constitute an adverse employment action.” Moreover, the recommendation did not constitute a “constructive discharge,” which only occurs when the employer “intentionally creates an intolerable atmosphere that forces an employee to quit voluntarily.” Here, Plaintiff was still on maternity leave when the Superintendent made the recommendation. Further, Plaintiff had an opportunity to request and subsequently contest the reasons behind the recommendation, but did not do so.

The court dismissed Plaintiff’s claims, because “no rational jury could conclude that she suffered an adverse employment action,” and the recommendation did not constitute, by itself, constructive discharge.

A New Fence Does Not Invoke the New Adverse Possession Law

Adverse possession is a process by which real property can change ownership. It is governed by statute. By adverse possession, title to another’s real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner’s rights for a specified period.

On July 8, 2008, New York’s adverse possession law was amended, and two centuries of New York adverse possession doctrine came to an end. The new law is intended to prevent an absentee landowner from losing title to his or her property to persons who enter upon it and knowingly intend to divest title from the owner after 10 years of continuous possession.

This law was the Legislature’s second attempt at overturning the 2006 Court of Appeals decision in Walling v. Przybylo. The Wallings and Przybylos owned adjoining properties and the Wallings began using a portion of the Przybylos’ property as their own. In 2004, the Przybylos discovered that they had title to the portion of land that the Wallings had been using. The Wallings filed suit to quiet title. The Przybylos attempted to prove that the Wallings knew they did not own the disputed parcel. The Court of Appeals held for the Wallings and declared that “actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor.”

The Walling decision merely restated the traditional rule of adverse possession, rooted in ancient British law that New York and other American courts have continually and repeatedly applied since the early 1800s. New York courts have held that a person claiming title by adverse possession must prove by clear and convincing evidence that his or her possession has been: (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous. Under this traditional application of the rule, the guiding principle of adverse possession law was always “use it or lose it.”

However, the new law now defines “claim of right” as a “reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be,” and a “claim of right,” as so defined, is now required to establish adverse possession.

A new RPAPL § 543(1) now provides that “the existence of de minimis non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, shed and non-structural walls, shall be deemed to be permissive and non-adverse.” New RPAPL § 543(2) also makes “permissive and non-adverse” “acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner’s property.”

While the new provisions deeming “de minimis” non-structural encroachments to be “permissive and non-adverse” are well intended, the phrase “de minimis” is left undefined and ambiguous.

The new law applies to all cases filed after July 8, 2008, but does not invalidate adverse possession rights that vested during any 10-year period ending prior to July 8, 2008. This was a key factor in a recent Surrogate’s Court case.

In Matter of Estate of Marin, the executrix of an estate petitioned the Surrogate’s Court for an order directing the respondents to remove a fence they owned. She alleged the fence encroached on the estate’s property by nearly 4.6 feet. Respondents own the property adjacent to the estate’s property, and refused to remove the fence. The executrix had entered into a contract of sale of the estate’s property, but the buyer refused to close as the title company excepted to insuring the disputed piece of land, noting the estate may be out of possession of that piece. Respondents counterclaimed for judgment of title to the land by adverse possession. The executrix had argued that the amendment of the RPAPL in 2008, and in particular, the de minimis exception, was controlling because the adverse possession claim had not ripened before the 2008 amendment. She argued that because the fence was installed in 2000, ten years had not expired before the new law came into effect. However, the Court rejected this argument finding the “fence was in place” when the property was originally acquired 1997. “It had been wooden and 6 feet high. In 2000 the wooden fence was replaced with a new wooden fence–same height, length and location as the original. The replacement of the original fence with something of like kind in the same area did not commence a new 10 year requirement” so the “use and possession of this parcel ripened into title after 10 years, vesting in 2007, prior to the enactment of the 2008 amendments to the RPAPL which are accordingly inapplicable to the respondents’ claim.”

The Importance of Preliminary Injunctions

As we all know, a trial judge’s decision on a matter is not always the end of the line for the parties involved. The loser will often attempt to get a second (or third) bite at the apple through an appeal. However, there are certain contexts where the losing party must act diligently, or lose their right to be heard completely.

One context where this holds true is when appealing the decision of a zoning board. A recent example is the case of Raab v. Silverstein. In that case, a zoning board of appeals granted a homeowner a variance to construct a second-story addition to her house. The petitioner, a neighbor, challenged this decision in court, through the commencement of an Article 78 proceeding, but was unsuccessful. As a last resort, the petitioner sought reversal by the New York State Appellate Division.

What the petitioner failed to realize is that, after the trial judge’s decision, but before the appeal, the homeowner acted upon the variance and began construction. The petitioner failed to move in the Supreme Court, or the Appellate Division for a preliminary injunction to preserve the status quo pending the determination of the appeal – i.e. to prevent by court order the homeowner from acting upon the variance and building the second story addition to the home. An injunction is an equitable remedy in the form of court order that requires a party to do or refrain from doing a specific act. The injunctive power is usually exercised to keep the status quo pending a court’s determination. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. In this case, by the time the Appellate Division heard the arguments on appeal, the homeowner’s construction was substantially completed. Thus, the court dismissed the appeal because “the petitioner failed to preserve his rights pending review, and the matter is now academic.”

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