In the Matter of Elizabeth McGovern, Appellant,v.Mount Pleasant Central School District, Respondent.BriefN.Y.April 28, 2015Of Counsel: To Be Argued By: Jason M. Wolf, Esq. Time Requested: 30 minutes Westchester County Clerk' s Index No. 15463111 COURT OF APPEALS STATE OF NEW YORK In the Matter of the Application of ELIZABETH MCGOVERN Petitioner -Appellant, For a Judgment Pursuant to Article 78 of the C.P.L.R. -against- MOUNT PLEASANT CENTRAL SCHOOL DISTRICT, Respondent-Respondent BRIEF FOR PETITIONER-APPELLANT RUTKIN & WOLF PLLC Attorneys for Petitioner-Appellant 910 Grand Concourse, Ste. IF Bronx, New York 10451 (718) 410-0653 FAX (877) 702-4596 jmw308@aol.com Jason M. Wolf Date Completed: July 3, 2014 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................... 2 QUESTIONS PRESENTED ................................. . .............................. 4 PRELIMINARY STATEMENT ............................................................ 5 STATEMENT OF CASE AND FACTS ............ . ...................................... 6 ARGUMENT ................................................................................. 15 POINT I - THE NOTICE OF CLAIM REQUIREMENTS ARE INAPPLICABLE WHERE MONETARY DAMAGES ARE MERELY INCIDENTAL TO THE PRIMARY CLAIM FOR EQUITABLE RELIEF .................. . .................. 16 POINT II - APPELLANT IS EXEMPT FROM THE NOTICE OF CLAIM REQUIREMENTS BECAUSE SHE SOUGHT TO ENFORCE HER RIGHT TO TENURE .......... 19 CONCLUSION ................................................................... . .......... 20 TABLE OF AUTHORITIES Cases Accredited Demolition Const. Corp. v. City of Yonkers, 37 A.D.2d 708 (2d Dept., 1971) ................................................... .18 Board of Ed. of Enlarged Ogdensburg City School Dist. v. Wager Const. Corp. (State Report Title: Matter of Board of Educ. of Enlarged Ogdensburg City School Dist. (Wager Const. Corp.), 37 N.Y.2d 283 (1975) ................................................................ 18 Cayuga-Onondaga Counties Bd of Co-op Educational Services v. Sweeney, 89 N.Y.2d 395 (1996) ............................................................ 15, 18 Fontana v. Town of Hempstead, 8 A.D.2d 1084 (2d Dept., 1963), affd. 13 N.Y.2d 1134 (1964) ............ 15, 17 Grant v. Town of Kirkland, 10 A.D.2d 474 (4th Dept., 1960) ........................ 17 Jones v. Board of Educ. Of Watertown City School Dist., 2005 WL 562747 (N.Y. Sup., 2005), affd. 30 A.D.3d 967 (4th Dept., 2006) ............................................. 16 Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 522 (1st Dept, 2010), ajfd 18 N.Y.3d 457 (2012) ........ 15, 17 Matter of Cowan v. Board of Educ. of Brentwood Union Free School Dist., 99 A.D.2d 831, 833 (1984), Iv granted 62 N.Y.2d 902 (1984), appeal discontinued 63 N.Y.2d 702 (1984) ....................................... 19 Matter ofMcMnnus v Board of Educ. of Hempstead Union Free School Dist., 87 N.Y.2d 183 (1995) ............................................................... 19 Matter ofTrehy v. Commack Union Free Sch. Dist., 93 A.D2d 891 (2d Dept., 1983) .................................................... 15 Ruocco v. Doyle, 38 A.D.2d 132 (2d Dept., 1972) ............................ 15, 16, 18 2 Sammons v. City of Gloversville, 175 N.Y. 346 (1903) ............ . .............. 15, 17 Sheil v Melucci, 94 A.D.3d 766 (2d Dept., 2012) ...................................... .17 Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 N.Y.2d 361 (1974), rearg denied 36 N.Y.2d 807 (1975) . ............... 15, 18 Statutes New York Education Law§ 3813(1) ................................................ passim 3 QUESTIONS PRESENTED The appellate division's order reversing the Supreme Court's Order and finding that Petitioner's failure to file a Notice of Claim was fatal to her Article 78 proceeding presents the following questions: I. Should filing a Notice of Claim under New York Education Law 3813 be required as a condition precedent where equitable relief is the primary relief sought and the monetary relief merely incidental thereto? 2. Should petitioner have been exempted from filing a Notice of Claim because she sought to enforce her rights to tenure? Appellant Elizabeth McGovern raised each of these questions in the courts below. See, e.g., Petitioner-Respondent's Br. on Appeal 11-141 (2d Dept., June 2013). This Court has jurisdiction to review the questions presented because Ms. McGovern's appeal is from an order of the appellate division that finally determines the action, N.Y. CONST. art. VI,§ 3(b)(6); CPLR § 5602(a)(l)(i), and because this Court granted leave to appeal in its Order dated May 13, 2014 (Record on Appeal (hereinafter "R") at 113). 1 In the appellate division, Ms. McGovern was "Petitioner-Respondent" because she had prevailed in Supreme Court. In this Court, Ms. McGovern is a "Petitioner-Appellant." 4 PRELIMINARY STATEMENT Ms. McGovern asks this Court to decide that she was exempt for the Notice of Claim requirements under New York Education Law 3813 because she sought equitable relief in the form of reinstatement to her position with tenure. Ms. McGovern's request for back pay was merely incidental to her request for equitable relief. We submit that the Supreme Court correctly interpreted the case law as promulgated by both the New York Court of Appeals and other intermediate appellate courts in holding that Ms. McGovern was not required to file a notice of claim since her application primarily sought equitable relief. We further submit that the Second Department's decision to reverse the findings of the Supreme Court was contrary to the intent and spirit of the Notice of Claim provisions of the New York Education Law, and was a departure from prior decisions. Finally, we submit that in this case in particular Ms. McGovern was exempt from the Notice of Claim provisions because she sought to enforce her right to tenure, which is a legal right derived through enactment of positive law. 5 STATEMENT OF CASE AND FACTS Ms. McGovern has been a teacher since 1997 and holds a BA in Literature from Pace University and a Masters in Elementary Special Education from Mercy College. She also has training in Applied Behavior Analysis, which is applicable when dealing with children on the autistic spectrum. She is also certified by the State of New York in Elementary Pre-k through 6th Grade, Special Education Pre- K though 12th, and English 7th through 12th grade. She has received an award from the New York City Board of Education titled "Heroes in Education." (Rat 14). From 1996 through 2002, Ms. McGovern was employed as a teacher for the New York City Board of Education. During her tenure of employment, Ms. McGovern taught third through eighth grades. While employed with the BOE, she designed a writing program for seventh and eighth grade students. (R at 14, 15). In 2002, Ms. McGovern taught special education college students at Manhattanville College at the "HELP" (Higher Education Leaming program.) While at Manhattanville, Ms. McGovern developed curriculum for a Catholic School in the Bronx, designed a balanced literacy program, and taught a writing course in the spring of 2003. (R at 15). 6 In the fall of 2003, Ms. McGovern was hired by Yorktown Central School District as a sixth grade English teacher. At the time, she had young children so she was unable to continue this full time position. In any event, she was a leave replacement for another teacher on maternity leave. (Id). From 2004 to 2008, Ms. McGovern worked part time for HT A and Theracare, two agencies that work with special education students both outside and inside schools, working with children from birth to five. (Id.). In the spring of2008, Ms. McGovern went back to work full-time, and applied for a Special Education position within the Mount Pleasant Central School District (Respondent). Ms. McGovern submitted an online application and attached her resume and certifications. She then went to two interviews, one with the principal of Westlake High School and the Director of Special Education for Westlake High School. The second was before a panel, which included seven to eight educators and administrators within the high school. (Rat 15, 19, 73). On July 30, 2008, Ms. McGovern was appointed to a three (3) year probationary teaching position commencing on September 1, 2008. (Rat 16, 73, 85, 86). At that time, Frank Viteritti, the Principal of Westlake High School, told Ms. McGovern she would be offered a tenured position at Westlake High School upon successful completion of her three year probationary period (Rat 16). 7 In August 2008, Ms. McGovern attended a new teacher orientation during which she was told by Mr. Viteritti and the Assistant Principal Bruce Ferguson that she would be observed two to three times a year (Id). On October 15, 2008, Ms. McGovern was observed by Mr. Ferguson. Mr. Ferguson noted: (A) Effectively met learning objectives and executed all aspects of the lesson plan (B) Created an environment highly conducive to student learning. (C) Indicated that the instruction was aligned with the State standards curriculum. (D) Actively engaged all students and effectively established personal contact. (E) Managed classroom behavior expectations appropriately. (F) Observed students driving the instructional and learning process. (G) Effectively constructed parameters for personal student accountability in group activities. (H) Effectively managed time. (I) Provided ample time for self-directed instruction. (J) Had especially planned for and effectively executed opportunities for differentiated instruction. 8 (K) Demonstrated that she possessed an in depth knowledge base of the subject area. (Rat 16, 17, 23). In January 2009, Ms. McGovern was observed by Principal Viteritti and rated as "Meets Expectations for Continued Employment". (R at 17, 26). In April 2009, Ms. McGovern was observed by Mr. Ferguson and was found to have: (A) Effectively met the stated learning objectives for the lesson (B) Created a classroom environment that is conducive to student learning (C) Instructed students in conformance with a four State of New York English standards. (D) Actively engaged all students and effectively established personal contact and managed behavior appropriately. (E) Implemented novel learning experiences and non-traditional approaches to instruction. (F) Demonstrated that she possesses an in depth knowledge base of their subject area. (Rat 26). 9 In May 2009, Ms. McGovern was observed by Viteritti and once again received a "Meets Expectations for Continued Employment". (Rat 18, 28, 74). On December 3, 2009, Ms. McGovern received an observation from Mr. Ferguson, which mirrored the positive feedback she received in April 2009. (Rat 18, 34, 75). During the 2009-2010 school year, Director of Special Education Nicole Schmipf asked Ms. McGovern to train other teachers in the area of autism. Ms. McGovern also attended conferences, and was part of project which required her to assist Ms. Schmipf in ensuring that children's individual education plans met New York State standards. Ms. McGovern was also on the "Breaking Ranks Committee", which shadows a child during the day to determine how the school can be improved. Finally, she was on the steering committee to bring the first autistic class into the high school, and was asked by Ms. Schmipf and Mr. Ferguson to be their case manager, due to her extensive training in special education. (Rat 18). In June 2010, Mss. McGovern received her end of the year evaluation, was rated as "Exceeds Expectations," and was recommended for continued employment. This Rating was based upon her being a "strong leader and effective collaborator with her colleagues," her "record keeping and grade reporting are always on time," her "outstanding job as a Resource, Collaborative and Modified English teacher, her "unique ability to engage students as a lead teacher and a support teacher," and "her 10 ability to lead, follow and facilitate make her a valued asset in her classroom and department. (Rat 19, 38, 75) . . In November 2010, Ms. McGovern received another observation evaluation from Principal Keith Schenker. The lesson was deemed "Highly Effective". In addition, Principal Schenker noted that Ms. McGovern "demonstrated a keen understanding of her students, their IEP' s and their individual learning styles and needs." He further noted that Ms. McGovern was "very effective at developing questions that helped to scaffold student understanding and foster deeper thinking on the themes within the Odyssey. He concluded that, "the classroom environment created by Ms. McGovern is one that is highly supportive, respectful, engaging, and conducive to learning". (Rat 19, 41, 76). During the 2010-2011 academic year at Westlake (Ms. McGovern's third year), Ms. McGovern ran Service Club, a club where students volunteered and got service hours. She also designed curriculum to conform to changing technological advances, such as collaborating with her class and a class in Greece via SKYPE. In December 2010, Principal Keith Schenker called Ms. McGovern at home and asked her to take on a second class based on her excellent performance, for which she would be paid extra. (Rat 19). 11 In January 2011, as the decision for tenure neared, Ms. McGovern was observed by Dr. Susan Guiney, the Superintendent of Schools (a librarian who incidentally had little to no time teaching in a classroom, but felt competent to evaluate a lesson taught to a special education class for which she has absolutely no training). Superintendent Guiney decided this "Highly Effective" teacher from November 2010 was just developing a mere six weeks. (Rat 44). In April 2011, as the decision for tenure drew closer, Ms. McGovern was evaluated by Principal Schenker, and received an evaluation that completely contradicted Schenker's observation five months earlier. Principal Schenker even questioned Ms. McGovern's integrity and professionalism by accusing her of criticizing colleagues to parents via email. (Rat 63). However, Respondent never produced these alleged emails to Ms. McGovern, nor did Respondent include these emails in the record below. (Rat 109). After receiving this observation, Ms. McGovern met with Principal Schenker, who told her he was ordered by Dr. Guiney to rate her poorly to conform with Guiney's January 2011 observation. (Rat 20). On May 5, 2011, Dr. Guiney advised Ms. McGovern she would recommend the Board of Education to terminate Ms. McGovern's services at the end of her probationary period. (Rat 103). 12 Ms. McGovern properly challenged the decision to terminate her employment under Education Law 3031. (Rat 69). However, Ms. McGovern was terminated on June 30, 2011 based on the recommendation of Dr. Guiney. (Rat 20, 78). Ms. McGovern commenced this special proceeding by filing a Notice of Petition and Verified Petition in Supreme Court, Westchester County (R 12-22), alleging that Respondent's decision to deny her tenure and terminate her employment was arbitrary and capricious and made in bad faith (Rat 20). Issue was joined by Respondent's filing a Verified Answer (R 72-84). Ms. McGovern submitted a Verified Reply (R 107-110). Supreme Court granted Ms. McGovern's Petition to the extent of ordering that "a hearing be conducted by the Board of Education to determine the issue of bad faith on the part of the Respondent regarding the Petitioner's [Ms. McGovern's] termination" (Rat 11). The Supreme Court further ordered that "Petitioner is reinstated to her probationary status with back pay pending a hearing, until this matter is resolved" (Id). Regarding Respondent's affirmative defense that the Petition was barred by Ms. McGovern's failure to serve a notice of claim pursuant to the provisions ofNew York Education Law 3813(1), the Supreme Court found that Ms. McGovern was exempt from those requirements. 13 Respondent appealed, and a unanimous panel of the appellate division (Second Department) reversed on the law holding that (1) Ms. McGovern's demand for back pay as well as equitable relief required that she file a notice of claim; (2) that Ms. McGovern did not commence an action to vindicate a public interest; and that (3) Ms. McGovern was not seeking judicial enforcement of a legal right derived through enactment of positive law (R 111-112). Ms. McGovern subsequently filed a motion in this Court for leave to appeal the appellate division's decision, which was granted on May 13, 2014 (Rat 113). 14 ARGUMENT Our lower courts have been plagued by the issue raised herein by Ms. McGovern, to wit: when is a party exempt from the Notice of Claim requirements ofNew York Education Law 3813(1). There is a line of cases under similar provisions of a city charter and Section 50-e of the General Municipal Law wherein this Court has held that a notice of claim is not required where the primary relief is brought in equity and the money damages are merely incidental to the equitable relief requested. See, Fontana v. Town of Hempstead, 18 A.D.2d 1084, ajfd. 13 N.Y.2d 1134; Sammons v. City of Gloversville, 175 N.Y. 346; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 N.Y.2d 361 (1974), rearg denied 36 N.Y.2d 807, Cayuga- Onondaga Counties Bd of Co-op Educational Services v. Sweeney, 89 N.Y.2d 395 (1996). The Second Department has likewise held that the notice of claim requirement is inapplicable where the primary relief sought is equitable in nature. See Matter of Trehy v. Commack Union Free Sch. Dist., 93 A.D2d 891 (2d Dept., 1983) and Ruocco v. Doyle, 38 A.D.2d 132 (2d Dept., 1972). The First Department followed the reasoning of Ruocco in Kahn v. New York City Department of Education, 79 A.D.3d 521 (1st Dept., 2010). The Fourth Department has also found the notice of claim requirements to be inapplicable where the employee.sought monetary damages 15 that were merely incidental to the primary claim for equitable relief, implicitly relying upon Ruocco and Union Free School Dist. Jones v: Board of Educ. Of Watertown City School Dist., 2005 WL 562747 (N.Y. Sup., 2005), affd. 30 A.D.3d 967 (4th Dept., 2006). POINT I THE NOTICE OF CLAIM REQUIREMENTS ARE INAPPLICABLE WHERE MONETARY DAMAGES ARE MERELY INCIDENTAL TO THE PRIMARY CLAIM FOR EQUITABLE RELIEF New York Education Law§ 3813(1), states in relevant part that: No action or special proceeding, for any cause whatsoever ... or claim against the district or any such school, or involving the rights or interest of any district or any such school shall be prosecuted or maintained against any school district, board of education .. . or any officer of a school district [or] board of education ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. The Respondent would have this Court emphasize the first part of the statute and hold that any claims and actions require filing a notice of claim prior to commencement of an action or special proceeding. However, Appellant believes that the ending of the above-cited statute evinces the Legislature's intent that a 16 notice of claim is limited to those actions or special proceedings where the primary relief sought is money damages. The First and Second Department have agreed that the notice of claim requirements do not apply when as litigant seeks only equitable relief. Kahn v. New York City Dept. of Educ., 79 A.D.3d 521, 522 (1st Dept, 2010), affd 18 N.Y.3d 457 (2012); Sheil v Melucci, 94 A.D.3d 766, 767-68 (2d Dept., 2012). There is no reason this rationale cannot be extended to situations where the primary relief is equitable in nature, and monetary damages are merely incidental thereto. For example, an employee of a school district who seeks reinstatement should not have to file a notice of claim, even where such reinstatement would naturally lead to an award of back pay to make the employee whole. In Fontana v. Town of Hempstead, supra this Court, in reversing the denial of the plaintiffs' motion to strike out as insufficient a defense pleaded by the defendant town in an action for injunctive relief against the maintenance by the town of a sewer line installed upon property allegedly owned by the plaintiffs, stated "compliance with the notice of claim requirements of section 50-e of the General Municipal Law and Section 67 of the Town Law is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief." See also, Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594; Sammons 17 v. City of Gloversville, 175 N.Y. 346, 67 N.E. 622; Accredited Demolition Constr. Corp. v. City of Yonkers, 37 A.D.2d 708, 324 N.Y.S.2d 377). In Ruocco v Doyle, 38 A.D.2d 132, 133 (1972), which was cited with approval by the Court of Appeals in Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 N.Y.2d 361 (1974), rearg denied 36 N.Y.2d 807, which was relied upon by the Court of Appeals in 1996 in Cayuga-Onondaga Counties Bd of Co-op Educational Services v. Sweeney, 89 N.Y.2d 395 (1996), the Second Department held that claims, which were equitable in nature, were not barred by the failure to file a notice of claim pursuant to New York Education Law § 3813(1), which is only required when money damages are sought. Ms. McGovern's argument is consistent with the intent behind the enactment ofNew York Education Law§ 3813 (1), which is "to give a school district prompt notice of claims 'so that investigation may be made before it is too late for investigation to be efficient"' (Matter of Board of Educ. [Wager Constr. Corp.], 37 N.Y.2d 283, 289 quoting Matter of Board of Educ. [Heckler Elec. Co.], 7 N.Y.2d 476, 483). 18 POINT II APPELLANT IS EXEMPT FROM THE NOTICE OF CLAIM REQUIREMENTS BECAUSE SHE SOUGHT TO ENFORCE HER RIGHT TO TENURE It is well settled, as recognized by the Respondent and the Second Department, that a notice of claim is not required where a teacher seeks to vindicate tenure rights which are "legal rights guaranteed by State Law and in the public interest" (Matter of Cowan v. Board ofEduc. of Brentwood Union Free School Dist., 99 A.D.2d 831, 833 (1984), Iv granted 62 N.Y.2d 902 (1984), appeal discontinued 63 N.Y.2d 702 (1984)). Although in the case at bar Ms. McGovern has yet to achieve tenure, she is still seeking to enforce her tenure rights. In the event Ms. McGovern prevails, she would have achieved tenure by estoppel because she would have successfully completed her third year of probationary service. (See, Matter ofMcMnnus v Board of Educ. of Hempstead Union Free School Dist., 87 N.Y.2d 183, 187 (1995)). Therefore, in seeking to vindicate a "public" interest, Ms. McGovern is exempt from the notice of claim requirements. 19 CONCLUSION The judgment should be reversed. Dated: Bronx, New York July 3, 2014 20 Respectfully submitted, Jason M. Wol , i:<-:s~. ;:::,---- Attorney for Petitioner-Appellant Elizabeth McGovern 910 Grand Concourse, Ste. 1 F · Bronx, New York 10451 (718) 410-0653