Whistleblower; Employee Termination | First Amendment | Wills

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Employee Terminated on Grounds Independent of Any Alleged Whistleblower Claim

employee terminated on grounds independent of any alleged whistleblower

In Tevlin v. Bd. of Ed. of Great Neck Union Free Sch. Dist., a former employee Tevlin brought an action under New York Labor Law §740 and Civil Service §75 stemming from his termination for poor attendance. Tevlin was a supervisor for security at the Great Neck Union Free School District responsible for 11 separate facilities and supervising 100 employees. Records indicated he began showing a pattern of excessive absenteeism–missing 69.5 days of work in the 2014-2015 year. He missed two unexplained weeks in May 2016 and charges were preferred. He claimed he was terminated due to a June 2016 incident–reporting what he believed was a “terroristic threat” by a bus driver to police, despite the transportation director deeming it unwarranted. The bus driver made a statement which Tevlin alleged was a “terroristic threat,” in which she showed a bus matron a picture of a friend of hers holding an assault weapon and indicating that her superiors should give her what she wants. Tevlin took part in a meeting with the director of transportation, and two other administrators. While Tevlin believed the situation should be reported to the Nassau County Police Department, the director of transportation and the other attendees disagreed. He then choose to inform a Nassau County Police Detective at a social event the next day of the situation, resulting in an investigation that did not end in any criminal charges for the bus driver.

In addressing the School’s motion for summary judgment, the Court recognized that under Civil Service Law §75-b “a public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee’s employment because the employee discloses to a governmental body information regarding a violation of a law, rule, or regulation, which violation creates and presents a substantial and specific danger to public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. However, where there are specific incidents of inappropriate, unprofessional, or insubordinate conduct which are found to demonstrate a separate and independent basis for the action taken, an employee may not assert a claim or defense under this section.”

It further recognized that under Labor Law §740 “an employer shall not take any retaliatory personnel action against an employee because such employee either discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety or provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any such violation of a law, rule, or regulation by such employer. On the other hand, this statute also provides that it shall be a defense to any action brought pursuant to this statute that the personnel action was predicated upon grounds other than the employee’s exercise of any rights protected under it. This section requires proof of an actual violation of law to sustain a cause of action and a plaintiff’s reasonable belief of a possible violation is not sufficient.”

In reviewing the details surrounding Tevlin’s absenteeism the Court noted that they “predated the incident involving the bus driver,” and found the issues with Tevlin’s “attendance at work well-documented,” beginning “more than a year and half before the alleged incident for which he categorizes himself as a whistleblower.” The Court said that the School District was “more than fair” in its treatment of Tevlin’s behavior, and provided him with “multiple opportunities to correct it, with each opportunity being squandered” by him.

The Court concluded that the School District had “established that there were specific instances of insubordination” by Tevlin “such that the grounds for his dismissal existed independent of any possible whistleblower claim he may have,” and granted summary judgment dismissing the complaint.

Removal of Student from Variety Show After He Went “Off-Script” Was Not A First Amendment Violation

removal of student from variety show after he went “off-script” was not a first amendment violation

In Vetrano v. Miller Place Union Free Sch. Dist., the plaintiff student sued his school district after he was not allowed to attend the second day of his High School’s annual two-day variety show because he improvised a line in a skit—satirizing the school’s enactment of a policy limiting bathroom use to one student at a time (Bathroom Skit)—that did not stick to the script approved by producer/director Mangiamele, also an Assistant Principal at the High School.  He received no other discipline. The District Court dismissed plaintiff’s action, brought under the Civil Rights Act and 42 U.S.C. § 1983, alleging the Miller Place Union Free School District, High School, Mangiamele, and Higuera, the District’s Superintendent of Schools, violated his constitutional rights to free speech, freedom of association, and due process. Finding that the Bathroom Skit constituted school-sponsored speech, the District Court concluded plaintiff’s First Amendment retaliation claim failed because he did not engage in protected speech.  Further noting he suffered at most a de minimis deprivation, the District Court concluded plaintiff did not show he suffered an adverse action in connection with his speech, and also concluded his freedom of association claim duplicated his meritless retaliation claim.

According to the District Court, each year the High School holds a variety show which consists of musical and other talent acts, separated by satirical skits performed by members of the senior class.  The skits often poke fun at faculty, school policies, and other school-related issues.

The Variety show is a school-sponsored event, with a general understanding that what is performed in the Variety Show has been approved by the High School and by Assistant Principal Mangiamele.  The skits are submitted for approval to the Executive Council, which passes them on to the Faculty Advisor for approval and after the Faculty Advisor approves the skit scripts, he or she submits them for approval to any faculty member who is mentioned by name or likeness.  If a faculty member is mentioned, he or she must approve the script in order for the students to be permitted to perform it in the Variety Show.  If a staff member does not approve the script, that person may not be mentioned in the Variety Show.

In addition, the Court noted that the Faculty Advisor follows the procedure for approving skits in accordance with the Code of Conduct’s expectations for acceptable conduct, and the anti-bullying and harassment policy.  The Code of Conduct articulates that all students, school staff, parents, and other visitors must meet the High School’s expectations for acceptable conduct while on school property and at school functions.  A “school function” is any school-sponsored event or activity held on or off school district property.

The Code of Conduct also prohibits conduct that is insubordinate, disruptive, or endangers the morals of others.  Insubordinate conduct includes failing to comply with the reasonable directions of teachers, school administrators or other school employees in charge of students, or otherwise demonstrating disrespect.  “Disruptive conduct” includes failing to comply with the reasonable directions of teachers, school administrators or other school employees in charge of students.  Conduct that endangers the morals of others includes harassment, bullying, or discrimination against any student.

Failure to comply with the Code of Conduct may result in certain disciplinary penalties and an Assistant Principal or Activity Director is authorized to remove a student from a school function when the student violates the Code, so long as it is consistent with the student’s right to due process.  The amount of due process to which a student is entitled before receiving a penalty depends on the penalty imposed.

The Code of Conduct specifies that participation in extra-curricular activities is a privilege earned by students who are in good academic standing and demonstrate good citizenship.  As a result, the Code of Conduct does not provide a hearing for students removed from an extra-curricular activity pursuant to Education Law § 3214.  Instead, the Code provides the student and the student’s parent a reasonable opportunity for an informal conference with the district official imposing the suspension to discuss the conduct and the penalty involved.

Plaintiff submitted his “Bathroom Skit” to the then-Executive Council President, who submitted them to Mangiamele for approval.  Mangiamele ensured that each of the faculty members represented in a Skit was given the script to review and approve.  The Bathroom Skit satirized the High School’s enactment of a policy which limited use of the bathroom to one student at a time, supposedly to combat smoking in the bathroom.

Mangiamele approved the skit as submitted and at the beginning of the Variety Show’s rehearsal, Mangiamele addressed the students as a group and advised them that they must stick to the script and not improvise lines.  Mangiamele also advised the students that they must make good decisions, and that any student who did not do so would be pulled from the show, potentially affecting upcoming events.  Mangiamele also reminded the students that faculty members signed off on the Skits, and that there were to be no changes to the approved Skits.

Before the show began, Mangiamele again sat the students in the gymnasium, and reminded them that they may not deviate from the approved script.  She advised the students to be on their best behavior and not to try anything that will get them in trouble and warned them that if they did not follow the rules, they can have other events taken away.

During the Bathroom Skit, the first skit of the show, the Plaintiff improvised the following line omitted from the drafts of the script approved by Mangiamele — “Is this why our Superintendent makes so much money, to ·write bathroom policy?”  Immediately after the Skit, Mangiamele spoke with the Plaintiff regarding his failure to stick to the script.  She told him they would discuss it the following morning, but that his actions may affect the second night of the Variety Show.  The Plaintiff agreed that the line in question was not part of the script but disagreed that his actions violated the rules.  The Plaintiff stayed for the remainder of the show and performed in two other Skits as planned.

Plaintiff was told on the day of the second Variety Show, that he would not be able to attend the second night of the Variety Show because he failed to stick to the approved script and did not follow the rules.  The Plaintiff received no other discipline.

The plaintiff then brought an action based on these facts in the Supreme Court of the State of New York for the County of Suffolk and pursuant to federal law, the defendants removed the action to the federal District Court, because the plaintiff’s Section 1983 claims invoke the Court’s federal question jurisdiction.

As for the First Amendment retaliation claim the District Court noted that generally “a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.”

As to whether the plaintiff engaged in protected speech, the District Court noted that although students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the rights of students “are not automatically coextensive with the rights of adults in other settings, which must be applied “in light of the special characteristics of the school environment.”  The District Court said the Bathroom Skit constituted unprotected school-sponsored speech, because the plaintiff performed the skit during a school-sponsored Variety Show.

The Court further said that the Plaintiff could only sustain his objection by establishing that the Bathroom Skit was somehow of such a private nature that it no longer bore the imprimatur of the school, but that the “record does not support this conclusion, as Mangiamele, a faculty member, produced and directed the show and a general understanding existed that show’s performances were approved by Mangiamele and the High School.”

Because the High School “directly involved itself in the production of the Variety Show and regulated its content by selecting” the acts and skits, “it could be more reasonably inferred by the public that the High School endorsed or sponsored the speech included in the performances.”

As to whether the plaintiff suffered an adverse action the Court noted that under an “objective standard, an adverse action must be more than de minimis to support a First Amendment retaliation claim.  This test is ‘highly context-specific,’ ‘and “must be applied here ‘in light of the special characteristics of the school environment.’” Because the plaintiff’s claim did not “arise from a suspension or other similar student discipline, but rather the barring of his performance in the second night of the Variety Show — a voluntary, extracurricular activity” and because “the participation in extracurricular activities is a privilege, not a right,” any adverse action was found to be de minimis.

Lastly, as  to whether a causal connection existed, the District Court concluded that “the undisputed record shows that the plaintiff improvised lines in the Bathroom Skit, despite multiple warnings that he must adhere to the script, and that the defendants disciplined the plaintiff for failure to abide by those warnings.  The plaintiff puts forth no evidence suggesting that the defendants barred him from participating in the second night of the Variety Show for anything other than the fact that he violated the rules, and nothing else in the record otherwise illustrates an improper motive.”

No Sufficient Act of Obliteration Found to Effectuate Revocation of Will

no sufficient act of obliteration found to effectuate revocation of will

In Estate of Mandel, the petitioners, decedent’s stepson and brother-in-law, moved for summary judgment dismissing an objection to probate the propounded instrument alleging it was revoked by an act of obliteration or cancellation of dispositive provisions. The will left most of the estate to decedent’s spouse, and if he predeceased, to her stepson. It was undisputed that when decedent executed the will there were no handwritten markings on it other than hers and the witnesses’ signatures, but the will offered for probate had handwritten markings on 9 of 27 pages and within 7 of its 15 articles striking through provisions where decedent’s spouse, stepson, his spouse, and their children were named, and adding objectant AM’s name, her son or decedent’s brother-in-law. Decedent’s initials appeared next to the handwritten markings. The Court found the markings did not affect the entire Will or a “vital part” of it and not “each and every” dispositive provision was obliterated, ruling there was not a sufficient act of obliteration to effectuate a revocation, granting petitioners summary judgment.

In so ruling, the Court noted that New York’s Estates, Powers and Trusts Law (“EPTL”) Section 3-4.1 sets forth the procedures for the revocation of wills, and that Courts “‘have been as unyielding in demanding strict compliance with the requirements of EPTL 3-4.1 for the revocation of a will as they have in demanding compliance with the requirements of EPTL 3-2.1 for the execution of a will’” and that a “‘testator executing a will must satisfy a fair number of strictly construed formal requirements,’” but a “testator revoking a will also must adhere to some formalities.”

“EPTL 3-4.1(a)(2)(A)(i) provides that a revocation, ‘if intended by the testator, may be effected…by…[a]n act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by…[t]he testator.’ In order to effectuate a revocation by obliteration or cancellation, there must be the concurrence of an act of revocation and an intent to revoke. As the Court of Appeals has observed, ‘Intent alone will not suffice. It must be “consummated by some of the acts specified in the statute…”.’”

The Court noted that numerous courts have held that whether markings on an instrument constitute a sufficient act under the statute “is a preliminary matter of law for the court to decide,” and to “constitute a sufficient act, the markings must affect the entire will or a ‘vital part’ thereof. The precedents have recognized ‘vital’ as the signature of the testator or of an attesting witness, as well as ‘each and every dispositive provision of [the] will.’”

In concluding that the markings did not affect the entire will or a “vital part” thereof, the Court reasoned that not “each and every dispositive provision has been obliterated. It is indisputable that two clearly dispositive provisions remain unmarked: the Article FOURTH bequest of $100,000 in trust for the primary benefit of decedent’s pets, and the Article SEVENTH(D) alternative provisions for the residuary and any ultimate remainder of a testamentary trust.”

It also concluded that “proof of decedent’s extrinsic expressions of an intent to revoke cannot be heard where, as here, the markings on a propounded instrument are insufficient to constitute an act of revocation under the statute” and because no such act had been shown to have occurred, the Court could not consider the objectants’ extrinsic proofs of decedent’s intent to revoke.

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