New York Law Review

Tag: Tenure

  • Matter of Board of Educ. of the City Sch. Dist. of the City of Rochester v. Nyquist, 24 N.Y.3d 505 (2014): Employee’s Right to Elect Disciplinary Procedures

    Matter of Board of Educ. of the City Sch. Dist. of the City of Rochester v. Nyquist, 24 N.Y.3d 505 (2014)

    When a collective bargaining agreement (CBA) is renegotiated or becomes effective on or after September 1, 1994, Education Law § 3020(l) requires that tenured employees must be given the option to elect the disciplinary procedures outlined in Education Law § 3020-a, regardless of any alternative disciplinary procedures detailed in the CBA.

    Summary

    A tenured school social worker was suspended without pay and denied a hearing under Education Law § 3020-a, with the School District insisting she could only challenge the discipline through the CBA’s grievance procedure. The CBA, while containing an alternative disciplinary procedure, was renegotiated after September 1, 1994. The Court of Appeals held that Education Law § 3020(l) mandates that any CBA effective after that date must allow tenured employees to choose between the CBA’s procedure and the statutory § 3020-a process, thus affirming the employee’s right to elect the statutory procedure.

    Facts

    The petitioner, a tenured school social worker, was suspended for 30 days without pay by the respondent School District for alleged misconduct. The School District informed the petitioner that she was required to challenge her suspension using the grievance procedures outlined in the CBA. The petitioner was denied a hearing under Education Law § 3020-a despite her request. The CBA, originally negotiated before September 1, 1994, had been renegotiated in 2006 and stated that disciplinary actions “may” be processed as a grievance. The CBA also stipulated that tenured teachers could not be discharged without Education Law §3020 and §3020-a process.

    Procedural History

    The petitioner commenced an Article 78 proceeding to challenge the disciplinary action, arguing she was entitled to the protections of Education Law § 3020-a. Supreme Court initially ruled against the petitioner. The Appellate Division reversed the Supreme Court’s decision, granting the petition and holding that the petitioner had the right to choose the statutory review process. The School District appealed to the Court of Appeals.

    Issue(s)

    Whether Education Law § 3020(l) requires that all CBAs becoming effective on or after September 1, 1994, afford tenured employees facing discipline the right to elect the review process provided by Education Law § 3020-a, even if the CBA contains an unaltered alternative grievance procedure agreed upon before September 1, 1994, but the CBA itself was altered after that date.

    Holding

    Yes, because Education Law § 3020(l) mandates that CBAs altered by renegotiation or becoming effective on or after September 1, 1994, must provide tenured employees with the option to choose the disciplinary procedures outlined in Education Law § 3020-a, irrespective of any alternative procedures in the CBA. The purpose of the 1994 amendment was to “secure the right of tenured employees to avail themselves of the process set forth in Education Law § 3020-a.”

    Court’s Reasoning

    The Court reasoned that the legislative intent behind the 1994 amendment to Education Law § 3020(l) was to ensure that tenured educators facing disciplinary charges could choose the procedural protections of Education Law § 3020-a. While the statute grandfathers pre-September 1, 1994, CBA discipline review procedures in unaltered CBAs, its dominant purpose was to secure the right of tenured employees to use § 3020-a. The court stated, “the statute unambiguously provides that when a CBA is altered by renegotiation or takes effect on or after September 1, 1994, it must permit tenured employees to elect section 3020-a’s discipline review procedures.” The Court rejected the School District’s argument that only renegotiation of the *discipline procedures* themselves triggers the employee’s option, finding this interpretation grammatically incorrect and at odds with the statute’s purpose. The Court noted the legislature’s recognized the importance of tenure in the educational context and its intention to preserve the process by which tenured educators are disciplined. The Court also noted that the CBA stated that a disciplinary action “may,” not that it “must,” be processed in accordance with the agreement’s grievance and arbitration provisions, making it statutorily inoffensive.

  • City of Long Beach v. Civil Service Employees Assn., 8 N.Y.3d 465 (2007): Arbitrability of Collective Bargaining Agreements and Provisional Employee Tenure

    8 N.Y.3d 465 (2007)

    A collective bargaining agreement (CBA) provision granting tenure rights to provisional civil service employees beyond the statutory time limit is unenforceable as against public policy because it violates the merit and fitness requirements of the New York State Constitution and the Civil Service Law.

    Summary

    The City of Long Beach sought to stay arbitration demanded by the Civil Service Employees Association (CSEA) on behalf of terminated provisional employees, arguing that the CBA’s ‘tenure’ provisions for these employees violated public policy. The New York Court of Appeals held that the CBA provisions, which granted tenure-like rights to provisional employees after one year of service, were unenforceable because they conflicted with the Civil Service Law’s merit-based appointment system. Allowing such provisions would undermine the constitutional mandate for appointments based on merit and fitness, ascertained through competitive examinations.

    Facts

    The City of Long Beach, following a critical report from the New York State Civil Service Commission regarding its provisional appointments, terminated several provisional employees who had been serving beyond the statutorily prescribed time. The CSEA, representing these employees, filed grievances, arguing that under the CBA, these employees had acquired ‘tenure’ and were entitled to be rehired. The CBA stated that employees with one year of service were deemed tenured and protected from separation, except in specific circumstances. It further stipulated that displaced provisional employees should be transferred to other open positions for which they qualified.

    Procedural History

    The City petitioned to stay arbitration. Supreme Court granted the City’s petition, holding that the CBA provisions were unenforceable due to the employees’ provisional status. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a provision in a collective bargaining agreement that grants tenure rights to provisional civil service employees after one year of service is arbitrable when such a provision conflicts with the merit and fitness requirements of the New York State Constitution and the Civil Service Law.

    Holding

    No, because granting the relief sought by the provisional employees under the CBA’s ‘tenure’ provisions would violate the Civil Service Law and public policy by circumventing the constitutional mandate for merit-based appointments.

    Court’s Reasoning

    The Court of Appeals emphasized that while public policy generally favors arbitration of public sector labor disputes, arbitration is not permissible when it violates a statute, decisional law, or public policy. The court found that the CBA’s tenure provisions for provisional employees directly contravened Article V, Section 6 of the New York Constitution, which mandates that civil service appointments be based on merit and fitness, as determined by competitive examination where practicable. The Civil Service Law, implementing this constitutional provision, allows provisional appointments only when no eligible list exists and limits such appointments to a maximum of nine months. The Court stated, “The statutory scheme contained in section 65 by its very terms prohibits any right of tenure to provisional employees. Properly construed, the Civil Service Law renders the provisions of the CBA upon which CSEA relies meaningless.” Granting tenure rights to provisional employees who have served beyond the statutory limit would undermine the merit-based system and perpetuate the misuse of provisional appointments. The Court further reasoned that allowing the City to agree to provide superior rights to provisional employees holding positions beyond the statutory time period would be against public policy. Chief Judge Kaye dissented in part, arguing that the portion of the CBA that required displaced provisional workers to be transferred to an open position was severable and arbitrable. The majority rejected this argument, holding that no relief may be granted because it is contrary to statute and decisional law.

  • Matter of Smith v. Board of Educ., 83 N.Y.2d 914 (1994): Seniority Calculation for Tenure Purposes

    Matter of Smith v. Board of Educ., 83 N.Y.2d 914 (1994)

    Seniority for tenure purposes under Education Law § 2585(3) is measured from the date of formal appointment to a certificated position under the Education Law, and time accrued in a Civil Service appointment cannot be credited toward service in a certificated administrative position.

    Summary

    Smith, previously a Director of Civil Service Personnel, was reclassified to a certificated position of Director of Civil Service Personnel under the Education Law. When her position was later terminated due to fiscal constraints, Smith challenged the Board of Education’s calculation of her seniority date. The Court of Appeals held that Smith’s seniority was properly measured from the date of her formal appointment to the certificated position, not from her prior service under the Civil Service Law. The court reasoned that no law or statute supports transferring seniority from a Civil Service appointment to a certificated position under the Education Law, thus the Board’s action was not arbitrary or capricious.

    Facts

    Smith was appointed Director of Civil Service Personnel on August 8, 1983, under the Civil Service Law. She received permanent certification as a School Administrator/Supervisor on September 1, 1986. On October 6, 1987, Smith requested reclassification of her position to a certificated position under the Education Law. The Board of Education reclassified her on February 6, 1989, with a seniority date of that day, initiating a new three-year probationary period. Smith noted her objection to the seniority date. Citing fiscal constraints, the Board terminated Smith’s position on February 1, 1992, citing her as the least senior within the tenure area.

    Procedural History

    Smith commenced an action challenging her termination, alleging miscalculation of her seniority date. Supreme Court granted the petition, setting Smith’s seniority date to October 6, 1987. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Board of Education acted arbitrarily in measuring Smith’s seniority under Education Law § 2585(3) from the date of her formal appointment to a certificated position (February 6, 1989), rather than from the date she initially requested reclassification (October 6, 1987), or from her initial appointment under civil service law.

    Holding

    No, because under Education Law § 2585(3), seniority is measured from the date of formal appointment to a certificated position under the Education Law, and Smith’s prior service under the Civil Service Law is not transferable to her certificated position seniority.

    Court’s Reasoning

    The Court of Appeals reasoned that “seniority” is defined as “length of service in a designated tenure area, rather than length of service in the district” (8 NYCRR 30.1[i]). Because Smith was first appointed to the certified administration position under the Education Law on February 6, 1989, her seniority under Education Law § 2585(3) must be measured from that date. The court explicitly rejected Smith’s argument that her previous duties under the Civil Service Law should count towards her seniority in the certificated position. The court emphasized that no case law or statute supports transferring seniority from a Civil Service appointment to a certificated position under the Education Law. The court distinguished Matter of Crandall, noting that in that case, the petitioners had been appointed to substitute positions under the Education Law prior to their probationary periods, which created continuous service. Here, Smith’s prior appointment was under the Civil Service Law, not the Education Law, so her service was not continuous. The court concluded that Smith could not properly credit the time accrued in her Civil Service appointment toward her service in her certificated administrative position. The key distinction is that credit is only given for continuous service within the educational system. The court’s decision emphasizes the importance of formal appointments and adherence to the statutory framework in determining seniority rights, providing clarity for school districts in managing personnel matters related to tenure and seniority.

  • Adlerstein v. Board of Education, 64 N.Y.2d 90 (1984): Authority to Assign Duties to Suspended Teachers

    Adlerstein v. Board of Education, 64 N.Y.2d 90 (1984)

    A school board can assign non-teaching duties to a tenured teacher during a suspension period pending disciplinary hearings, provided the assignment is reasonably related to the teacher’s competence and training and maintains the dignity of the profession; furthermore, a school superintendent has broad authority to transfer teachers between schools absent contractual limitations or evidence of malice or bad faith.

    Summary

    These consolidated cases address the extent of a Board of Education’s authority over tenured teachers during suspension. Adlerstein, an art teacher, refused a reassignment to a different school after a disciplinary proceeding and sought reinstatement to his original position. Radoff, a social studies teacher, refused to perform tasks assigned during his suspension pending a disciplinary hearing and was subsequently dismissed. The New York Court of Appeals held that the Board could assign non-teaching duties to suspended teachers, and a superintendent has broad powers to transfer teachers between schools. The Court affirmed the denial of Adlerstein’s motion and affirmed Radoff’s dismissal.

    Facts

    Adlerstein, a senior art teacher, was suspended due to allegations of inadequate instruction and classroom management. He was reassigned to the Superintendent’s office but didn’t report. After reinstatement, he was assigned to a different school, which he refused. Radoff, a social studies teacher, was suspended and assigned tasks in the Board’s personnel office, which he refused to complete. This refusal led to a second set of charges and his eventual dismissal.

    Procedural History

    Adlerstein filed an Article 78 proceeding seeking reinstatement and back pay. Special Term initially denied the petition, then granted it in part, awarding back pay. The Appellate Division reversed. Adlerstein appealed. Radoff also filed an Article 78 proceeding challenging his dismissal. The Appellate Division confirmed the Board’s determination. Radoff appealed by permission of the Court of Appeals.

    Issue(s)

    1. Whether a Board of Education may require a suspended teacher to perform non-teaching assignments during the suspension period pending disciplinary proceedings.
    2. Whether a school superintendent has the authority to transfer a teacher to a different school after reinstatement following a disciplinary proceeding.

    Holding

    1. Yes, because the statutory language authorizing suspension pending a hearing does not preclude assigning other duties, and such assignments serve public interests. Also because, the non-teaching assignment bears a reasonable relationship to the suspended teacher’s competence and training and is consistent with the dignity of the profession.
    2. Yes, because the superintendent has broad authority to transfer teachers between schools absent contractual limitations or evidence of malice or bad faith.

    Court’s Reasoning

    The Court reasoned that suspension pending a hearing is not a form of censure or discipline but a measure to protect students and the public interest. The Court emphasized that the purpose of tenure is to ensure job security for competent teachers, which isn’t frustrated by temporary non-teaching assignments related to their expertise. Citing Education Law § 2566(6), the Court upheld the superintendent’s broad power to transfer teachers, absent contractual conflicts or evidence of bad faith. The court distinguished Bailey v McDougall, noting it addressed transfers as disciplinary actions under a different section of the Education Law. The court stated that nonteaching assignments which bear a reasonable relationship to the suspended teacher’s competence and training and is consistent with the dignity of the profession is permissible because “the rationale of Matter of Jerry was not his or her release from all service but the protection of a suspended teacher from impoverishment during the period of suspension”. Regarding the transfer, the court noted, “[T]he subdivision does not specify that he must be returned to the same position in the same building from which he was suspended, but only that he be restored to his position as an art teacher, subject, as he was before suspension, to transfer by the superintendent to any other school within the district.”

  • Matter of Moritz v. Board of Education, 54 N.Y.2d 865 (1981): Part-Time Teaching Service and Tenure Acquisition

    Matter of Moritz v. Board of Education, 54 N.Y.2d 865 (1981)

    Part-time teaching service does not automatically fulfill the statutory requirement of a three-year probationary term for tenure eligibility under New York Education Law § 3012, unless explicitly provided for by contractual agreement.

    Summary

    The New York Court of Appeals held that a teacher, Moritz, was not entitled to tenure because her part-time teaching service did not satisfy the three-year probationary period required by Education Law § 3012. The court emphasized that the Commissioner of Education consistently interpreted the statute to require full-time service for tenure eligibility. While contractual agreements could grant tenure credit for part-time work, the absence of such a provision meant Moritz could not claim tenure by estoppel or acquiescence, having failed to complete the probationary term with the requisite full-time service.

    Facts

    Moritz sought tenure from the Board of Education. Section 3012 of the Education Law requires a three-year probationary period for teachers before they are eligible for tenure. Moritz’s teaching service was part-time. The Commissioner of Education’s policy requires full-time teaching service to satisfy the probationary period for tenure eligibility.

    Procedural History

    The Special Term dismissed Moritz’s petition. The Appellate Division reversed this decision. The New York Court of Appeals reversed the Appellate Division’s order, reinstating the Special Term’s dismissal.

    Issue(s)

    Whether part-time teaching service fulfills the statutory requirement of a three-year probationary term under Education Law § 3012, thereby entitling a teacher to a tenured appointment.

    Holding

    No, because the statute does not expressly provide a probationary term for part-time teachers, and the Commissioner of Education has consistently interpreted the statute to require full-time service. Furthermore, in the absence of a contractual provision granting tenure credit for part-time service, such credit is not mandated.

    Court’s Reasoning

    The Court of Appeals deferred to the Commissioner of Education’s long-standing interpretation of Education Law § 3012, which requires full-time teaching service to fulfill the three-year probationary term. The court noted that the statute is silent regarding part-time teachers, implying that the default requirement is full-time service. “Inasmuch as the statute does not expressly provide a probationary term for part-time teachers, the denial of tenure credit for part-time service is not arbitrary.”

    The court distinguished this case from situations where a contractual agreement explicitly grants tenure credit for part-time service, citing Matter of Schlosser v Board of Educ., 47 NY2d 811. In the absence of such an agreement, the court refused to mandate tenure credit for part-time service. Moritz’s claim of tenure by estoppel or acquiescence was rejected because she had not completed the probationary term with the required full-time service. The court stated: “Having failed to complete the probationary term with the required service, petitioner may not claim tenure by estoppel or acquiescence.” This highlights the importance of clear contractual provisions in defining tenure eligibility for non-traditional employment arrangements.

  • Matter of Liverpool Cent. School Dist. v. Liverpool Cent. Teachers Assn., 42 N.Y.2d 1038 (1977): Enforceability of Collective Bargaining Agreement Limiting Superintendent’s Discretion in Tenure Recommendations

    Matter of Liverpool Cent. School Dist. v. Liverpool Cent. Teachers Assn., 42 N.Y.2d 1038 (1977)

    A collective bargaining agreement that limits a school district superintendent’s discretion in making tenure recommendations is enforceable, provided the limitation is procedural rather than substantive and does not violate public policy.

    Summary

    This case concerns the enforceability of a collective bargaining agreement provision that limited the school district superintendent’s discretion in making tenure recommendations. The arbitrator found that the school district violated the agreement. The New York Court of Appeals held that the provision was enforceable because it related to procedure rather than substance and did not contravene public policy. This case distinguishes between procedural and substantive limitations on a superintendent’s discretion and emphasizes that while substantive limitations are generally unenforceable, procedural limitations are permissible if they do not violate public policy. The concurring opinion highlights the statutory framework governing tenure decisions.

    Facts

    The Liverpool Central School District and the Liverpool Central Teachers Association entered into a collective bargaining agreement. A dispute arose concerning the interpretation and application of provisions in the agreement governing teacher evaluations and tenure recommendations. The Teachers Association alleged that the School District violated the agreement by failing to properly evaluate a probationary teacher and by denying her tenure based on an improper recommendation from the district superintendent. The matter was submitted to arbitration.

    Procedural History

    The arbitrator ruled in favor of the Teachers Association, finding that the School District had violated the collective bargaining agreement. The School District then sought to vacate the arbitrator’s award in state court. The lower courts upheld the arbitrator’s decision. The New York Court of Appeals affirmed the lower court’s decision, finding the collective bargaining agreement enforceable.

    Issue(s)

    Whether a provision in a collective bargaining agreement that limits the school district superintendent’s discretion in making tenure recommendations is enforceable.

    Holding

    Yes, because the limitation imposed by the collective bargaining agreement was procedural rather than substantive and did not violate public policy.

    Court’s Reasoning

    The court reasoned that the collective bargaining agreement provision related to procedure rather than substance because it concerned the process by which the superintendent made tenure recommendations, not the ultimate decision of whether to grant tenure. The court distinguished its prior holdings in Matter of Cohoes City School Dist. v Cohoes Teachers Assn. and Matter of Candor Cent. School Dist. (Candor Teachers Assn.), stating that those cases involved substantive limitations on the discretion of the school board, which were deemed unenforceable as against public policy. The court emphasized that the arbitrator’s interpretation of the agreement limited the power of the district superintendent but did not remove it entirely. The court found that the agreement did not prevent the superintendent from exercising discretion, but merely regulated the manner in which that discretion was exercised.

    Judge Meyer’s concurring opinion emphasized that the ultimate discretion regarding tenure denial resides in the superintendent rather than the school board, except in districts governed by specific Education Law sections. The concurrence reasoned that because the collective bargaining agreement provision relating to the superintendent was substantive rather than procedural, the reasoning of the majority was not acceptable. However, Judge Meyer concurred with the result because the building principal’s violation of the agreement was sufficient to warrant the award.

    The court determined that the arbitrator’s award was consistent with public policy because it did not infringe upon the school board’s ultimate authority to grant or deny tenure. The court also noted that collective bargaining agreements are generally favored under New York law, and that courts should be reluctant to interfere with the terms of such agreements unless they are clearly contrary to public policy. The court underscored that the agreement in question did not compromise the school board’s essential functions or responsibilities.

  • New York Institute of Technology v. State Division of Human Rights, 40 N.Y.2d 316 (1976): Limits on Agency Power to Order Tenure as Discrimination Remedy

    New York Institute of Technology v. State Division of Human Rights, 40 N.Y.2d 316 (1976)

    While the State Commissioner of Human Rights possesses broad authority to remedy discrimination, ordering an educational institution to grant tenure as a remedy should be reserved for only the most extraordinary circumstances, where other remedies have proven ineffective and the institution’s tenure procedures are irreparably tainted.

    Summary

    Dr. Laura Canuto alleged sex discrimination after being denied tenure at New York Institute of Technology (NYIT). The Commissioner of Human Rights found NYIT had discriminated against her and ordered the college to grant her tenure. The New York Court of Appeals held that while the Commissioner has broad powers to remedy discrimination, compelling tenure is an extraordinary remedy. The court reasoned tenure decisions involve subjective academic judgments best left to the institution. Ordering tenure is appropriate only when the institution’s processes are irreparably tainted, making fair consideration impossible. The case was remanded for the Commissioner to reconsider remedies short of tenure.

    Facts

    Dr. Laura Canuto was hired as an assistant professor of physics at NYIT in 1969. She was promoted to associate professor in 1971. She was considered for tenure in 1972-1973 but was denied after initial approvals. The denial was internally appealed, citing a shrinking physics department. Because Dr. Canuto had taught at a college level for seven years, including three at NYIT, she was given a terminal contract.

    Procedural History

    Dr. Canuto filed a complaint with the State Division of Human Rights, alleging sex discrimination. The Commissioner of Human Rights found the Institute had engaged in discriminatory practices and ordered NYIT to restore Dr. Canuto to her position with tenure, plus back pay. The State Human Rights Appeal Board affirmed. NYIT sought review in the Appellate Division, arguing the discrimination finding lacked substantial evidence and challenging the tenure order’s breadth. The Appellate Division confirmed the Appeal Board’s determination, finding a factual basis for the discrimination and the remedy reasonable. NYIT appealed to the New York Court of Appeals.

    Issue(s)

    Whether the State Commissioner of Human Rights, upon finding that an educational institution discriminated against a professor in denying tenure, can order the institution to grant the professor tenure.

    Holding

    No, because ordering tenure is an extraordinary remedy that should be reserved for the most egregious of circumstances where all other remedies have proven ineffective and the institution’s tenure procedures are irreparably tainted.

    Court’s Reasoning

    The Court of Appeals recognized the university’s unique role in society, emphasizing its responsibilities for education, research, and critical thought. It stated that faculty appointments, promotions, and tenure are sensitive areas where courts and agencies should rarely intervene, showing “the greatest caution and restraint.” The court noted that tenure systems protect academic freedom but can also lead to inflexibility and protect less-qualified instructors. Referencing *Matter of Pace Coll. v Commission on Human Rights of City of N. Y.*, the court noted that universities are not businesses with fungible workers; subjective judgments play a proper role.

    The court acknowledged the Commissioner’s broad authority under the Human Rights Law to take affirmative action to cure the effects of discrimination, including hiring, reinstatement, and back pay. However, it stated this law primarily addresses general business and industry, not specialized fields like education. While not ruling out the possibility of the Commissioner ordering tenure in a proper case, the court emphasized that such a remedy should be reserved for the gravest circumstances. The court reasoned tenure decisions require balancing objective criteria and legitimate subjective considerations, including academic contributions, specialization, and departmental needs. The responsibility for this assessment belongs to the institution, not the Commissioner, whose viewpoint is narrower and who lacks professional educational expertise. “Only under the gravest of circumstances, where all other conceivable remedies have proved ineffective or futile should the commissioner enter the campus to impose the conferring of tenure.”

    The court found that in this case, the Commissioner determined that Dr. Canuto was denied “an opportunity to qualify for tenure” based on her sex. Thus, the more direct remedy would be to require the institution to fairly consider her application, rather than mandating tenure. Citing *Matter of Holland v Edwards*, the court stated the imposed remedy must be reasonably related to the discrimination found to exist. The court held that in the absence of circumstances of sufficient gravity to justify the imposition of tenure, the tenure requirement should be deleted from the order and remanded for the agency to determine appropriate alternative remedies.

  • New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979): Sufficiency of Evidence for Sex Discrimination in Faculty Tenure Decisions

    New York City Commission on Human Rights v. Pace College, 47 N.Y.2d 704 (1979)

    Statistical data alone is insufficient to prove a pattern of sex discrimination in academic tenure decisions; however, evidence that an employee was treated differently due to their gender, even if not overtly discriminatory, can support a finding of unlawful discrimination.

    Summary

    The New York City Commission on Human Rights appealed a decision overturning its finding that Pace College (now University) discriminated against women faculty, specifically Dr. Winsey, in promotion and tenure. The Court of Appeals modified the order, holding that while statistical data presented was insufficient to prove a widespread pattern of discrimination, there was sufficient evidence to support the Commission’s finding that Dr. Winsey was discriminated against due to her sex and assertive advocacy for her rights, which was viewed negatively because she was a woman.

    Facts

    Dr. Winsey, a faculty member at Pace College, filed a complaint alleging sex discrimination in promotion and tenure decisions. She held a doctorate in cultural anthropology and a master’s degree in speech and human relations. She was initially hired as an adjunct professor in 1966 and became a full-time associate professor in 1968 in the Social Science Department after failing to secure a position in the Speech Department. She was informed by the head of the Speech Department that he did not like women around him because he could not use “four-letter” words and that he could not pay her as much as a man because it would “demoralize” his department. Despite positive evaluations and a heavy workload, her attempts to be promoted to full professor were unsuccessful, and she was ultimately given a terminal contract.

    Procedural History

    The New York City Commission on Human Rights found Pace College guilty of sex discrimination. Special Term overturned the Commission’s determination. The Appellate Division affirmed the Special Term’s decision. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the statistical evidence presented was sufficient to support the Commission’s finding of a pattern of discrimination against women faculty at Pace College.

    2. Whether there was sufficient evidence to support the Commission’s finding that Dr. Winsey was individually discriminated against because of her sex.

    Holding

    1. No, because the statistical data was superficially plausible but failed to account for historical reasons and a proper pool of eligible candidates.

    2. Yes, because there was sufficient evidence that Dr. Winsey was treated differently than a similarly situated man would have been, due to her gender and assertive advocacy for her promotion.

    Court’s Reasoning

    The Court held that while statistics are helpful in determining discriminatory employment practices, a statistical predicate alone is not enough, especially when historical reasons exist for statistical bias. The Court emphasized the fallacy of drawing employment ratios from a large group without limiting it to those eligible for hiring or appointment. The Court noted the Commission failed to adequately define the pool of eligible candidates for comparison.

    However, regarding Dr. Winsey’s individual complaint, the Court found sufficient evidence to support the Commission’s finding of discrimination. Explicitly discriminatory comments made to and about her, coupled with her termination after she pursued promotion, suggested that she was treated differently due to her sex. The court reasoned that Pace’s justification that Dr. Winsey was a “troublemaker” was pretextual. The Court stated, “What Dr. Winsey did to cause her termination would not have been considered ‘troublesome’ if she had not been a woman.”

    The Court emphasized that those who discriminate unlawfully rarely do so openly, instead resorting to subtle tactics and mixed motives. In this case, the evidence of Dr. Winsey’s non-promotion had this character, and the commission was entitled to weigh the evidence and draw permissible inferences.

    The Court quoted Judge Fuld in Matter of Holland v Edwards, “those who discriminate unlawfully are not likely to do so in open, plainly-appearing fashion… Instead, there is likely to be covert resort to subtle tactics and the pretext of intermingled motives and reasons to obscure the substantial cause.”

  • Board of Education v. Timpson, 32 N.Y.2d 468 (1973): Competitive Exams and Civil Service Appointments

    Board of Education v. Timpson, 32 N.Y.2d 468 (1973)

    Civil service appointments must be based on merit and fitness, ascertained through competitive examination where practicable, and temporary service in a higher position without passing the required exam does not qualify an individual for permanent appointment.

    Summary

    The Board of Education sought to annul the Commissioner of Education’s determination that Adele Timpson should receive a permanent appointment as principal. Timpson had served as an “acting” principal for 11 years but had repeatedly failed the required licensing exam. The Commissioner argued that Timpson’s long service entitled her to the position. The court held that the Commissioner’s determination was arbitrary and violated the constitutional mandate that civil service appointments be based on merit and fitness ascertained by competitive examination. The court emphasized that temporary assignments do not satisfy the requirements for permanent appointments and tenure.

    Facts

    Due to community opposition and a lack of space, the Board established P.S. 100 in upper Harlem in 1960. The first principal resigned after one year. Mrs. Timpson, a licensed assistant principal, accepted the “acting” principal position in September 1961. She failed the principal’s examination six times. The Board denied her requests for a license, salary, and tenure, despite positive performance reviews. Since 1969, she received the first-step salary for a principal due to her acting capacity.

    Procedural History

    In 1969, Timpson petitioned the Commissioner, who directed the Board to grant her a permanent appointment. The Board initiated an Article 78 proceeding to annul the Commissioner’s determination. Special Term initially granted the Commissioner’s motion to dismiss, agreeing that Timpson had acquired tenure. The Appellate Division reversed, finding the determination unconstitutional. Special Term then ruled against the Commissioner after an answer was filed, annulling the Commissioner’s decision. The Court of Appeals reviewed the Appellate Division’s non-final order.

    Issue(s)

    Whether the Commissioner of Education acted arbitrarily by directing the Board of Education to grant a permanent principal appointment to an individual who had not passed the required competitive examination, based solely on her extended service as an “acting” principal.

    Holding

    No, because the constitutional mandate requires appointments to civil service positions be based on merit and fitness, ascertained by competitive examination where practicable, and temporary service in a higher position without passing the required exam does not qualify an individual for permanent appointment.

    Court’s Reasoning

    The court emphasized the constitutional requirement (N.Y. Const., art. V, § 6) that civil service appointments be based on merit and fitness, ascertained through competitive examination where “practicable.” The court cited Matter of Goldhirsch v. Krone, 18 N.Y.2d 178, 185, underscoring that individuals cannot be appointed to higher positions without the necessary examination, even with satisfactory performance in a temporary role. The court quoted the Bacon v. Board of Educ. of City of N.Y., 205 Misc. 73, 79, case, stating, “If the beneficent merit system with competitive examinations is to be preserved, we must adhere strictly to the rule that only one who has passed the prescribed appropriate examination is entitled to a certificate of appointment.” The court found the Commissioner acted arbitrarily by bypassing the examination requirement. The court also clarified that serving in an “acting” capacity is not an appointment as envisaged by section 2573 of the Education Law; it is simply a voluntary assignment, and therefore, does not fulfill the probationary period requirement for tenure. The Court distinguished Matter of Mannix, noting that the applicant in that case had passed the prescribed examination, while Timpson had not. The court acknowledged the federal court litigation, Chance v. Board of Examiners & Bd. of Educ. of City of N. Y., 330 F. Supp. 203, which found discrimination in the exam process, potentially offering Timpson future opportunities under revised testing procedures. The court concluded that the remedy for Timpson’s situation does not lie in bypassing constitutional requirements but in creating fairer examination procedures.