Opinion
Index e2020-0120
10-21-2020
In the Matter of the Application of Jeanette Lasko, as President of the Watkins Glen Faculty Association, and Watkins Glen Faculty Association, Petitioners, v. Board of Education of the Watkins Glen Central School District, Watkins Glen Central School District, and Greg Kelahan, in his official capacity as Superintendent of the Watkins Glen Central School District, Respondents, For a Judgment pursuant to Article 78 of the Civil Procedure Law and Rules.
Unpublished Opinion
DECISION AND ORDER
Hon. Christopher P. Baker, Supreme Court Justice
FINDINGS OF FACT
In an order to show cause dated October 1, 2020. petitioners seek, inter alia, the following relief:
(1) A declaration that respondents' policy regarding telework accommodations is null and void, arbitrary and capricious, ultra vires, irrational, in violation of law, in violation of lawful procedure, and a failure to perform a duty enjoined upon respondents in violation of law;
(2) A permanent injunction to enjoin respondents from further implementation of their policy during the COVID-19 pandemic;
(3) Vacatur of respondents' decisions regarding telework accommodations requests under their policy, along with reconsideration, and;
(4) Mandating that respondents comply with Executive Orders 202.45 and 202.60.
As set forth in the verified petition before The Court, in anticipation of the return of in-person school instruction for the 2020-2021 school year as permitted by Governor Andrew Cuomo on or about August 7, 2020, respondents drafted a document entitled the "Watkins Glen Central School District Reopening Plan-July 2020 revised 9-3-20." Pursuant to Executive Order 202.60, signed by Governor Cuomo on September 4, 2020, and effective September 1, 2020, schools statewide are to be open for instruction ". .. subject to adherence to Department of Health issued guidance and directives.'' To assist school districts in the formulation of their reopening plans, the New York State Education Department (hereinafter "NYSED") authored a comprehensive document entitled "Recovering, Rebuilding, and Renewing: The Spirit of New-York's Schools Reopening Guidance." This document required that all school reopening plans be submitted on or before July 31, 2020, along with the mandate that all guidelines developed and released by the New York State Department of Health (hereinafter “NYSDOH")(''Interim Guidance for In-Person Instruction at Pre-K to Grade 12 Schools During the COVID-19 Public Health Emergency") on July 13, 2020 be included in such plans. NYSED's Guidance compelled school districts to prepare their reopening plans for ". . . in-person, remote and hybrid models of instruction," along with written protocols ". . . detailing how the district/school will provide accommodations to all students and staff who are at high risk or live with a person at high risk." Similarly. NYSDOH's July 13, 2020 Guidance, under the heading of "Vulnerable Populations," explained, in pertinent part:
"Policies regarding vulnerable populations, including students, faculty and staff who are at an increased risk for severe COVID-19 illness, and individuals who may not feel comfortable returning to an in-person educational environment, to allow them to safely participate in educational activities and, where appropriate, accommodate their specific circumstances. These accommodations may include but are not limited to remote learning or telework, modified educational or work settings, or providing additional PPE to individuals with underlying health conditions .. ."
Respondents' plan, which was adopted and approved by the Board of Education, included both NYSDOH and NYSED's Guidance documents as cited above, along with incorporating additional guidelines promulgated by the Association of Educational Safety and Health Professionals (hereinafter "AESHP"), entitled "Practical Guidance for Schools Re-emerging from a Pandemic." Under the heading of "Employees at High Risk," AESHP Guidance states, in pertinent part:
"Have conversations with employees if they express concerns. Some people may be at higher risk of severe illness. This includes older adults (65 years and older) and people of any age with serious underlying medical conditions. By using strategies that help prevent the spread of COVD-19 in the workplace, you will help protect all employees, including those at higher risk. These strategies include:
• Implementing telework and other social distancing practices ..."
The crux of the petition stems from the allegation that respondents have denied all requests for telework accommodations made by staff and faculty in contravention of Executive Orders 202.45 and 202.60, NYSDOH Guidance, and their own re-opening plan. Petitioner contends that respondents' policy is to unconditionally deny all requests for telework accommodations on the basis that said accommodation is incompatible with the essential functions of their job duties. Petitioner points to the denial of Sarahjane Harrigan's request for telework accommodation, who has been employed by the school district as a music teacher for the past twenty-one (21) years.
According to the allegations in the verified petition, Ms. Harrigan, who suffers from Chronic Stage IV kidney disease and an autoimmune disease, submitted a request in August to provide telework/remote music instruction to elementary students. Her accommodation request was denied by respondents purportedly on the basis that "it is not a reasonable accommodation under the ADA. It does not allow for teachers to perform essential functions of the job." Ms. Harrigan was advised to engage in further discussion for alternative accommodations, wherein she proposed to provide remote instruction from a classroom within the elementary school building which would then be live streamed into the students' classroom. Respondents denied this request, and instead offered her a one (1) year leave of absence without pay, and alternatively, additional PPE. Ms. Harrigan did not accept these offers, and instead proposed alternative and/or supplemental accommodations in light of her health issues, which she claims were also rejected by respondents.
In light of the foregoing, petitioner claims that denial of telework accommodation to vulnerable faculty and staff, while at the same time affording students the option of fully remote learning, is arbitrary and capricious. Moreover, petitioner asserts that respondents" policy regarding denial of telework accommodation is in violation of Executive Orders 202.45 and 202.60, along with NYSDOH and NYSED Guidances, While the petition does not seek a determination or the granting of individual accommodation requests under state law. it does seek to compel respondents to follow the NYSDOH criteria in accommodating vulnerable faculty and staff. Thus, mandamus relief is sought by petitioners.
Respondents have filed and served a verified answer which explicitly details that petitioner has failed to demonstrate that [respondents] have violated a mandate to provide telework to a party requesting such accommodation, instead, respondents maintain that all of the documents before The Court, including but not limited to the aforementioned Guidance papers issued by NYSDOH, NYSED, AESHP and their own re-opening plan, demonstrate that telework is an option or potential accommodation, and is not mandatory for those seeking it. Nevertheless, respondent explains that there is no plan in effect which unconditionally denies all telework accommodation requests, pointing to the granting of such an accommodation to a member represented by petitioner.
The first objection in point of law raised by respondents is that petitioner lacks standing in that they are challenging policies which apply to all employees, students and visitors to the school district without demonstrating harm unique to its membership. Essentially, respondents' contention that petitioner has not sustained the requisite injury-in-fact to confer standing to bring this litigation.
The second objection in point of law is that mandamus relief is unavailable as there is no mandate requiring telework accommodation.
Memoranda of law has been filed with The Court.
CONCLUSIONS OF LAW
The Court in The Society of the Plastics Industry, Inc., et al., v. County of Suffolk, et al., 77 N.Y.2d 761 is recognized as establishing the general rules for standing in the context of justiciable controversies, essentially requiring an aggrieved party to demonstrate an injury-in-fact. As explained by the Court, "standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria" (Id. at 769; see, Comment, Standing of Third Parties to Challenge Administrative Agency Actions, 76 Cal.L.Rev. 1061, 1067-1068 [1988]; see also, Warth v. Seldin, 422 U.S. 490, 498). More importantly, given the current state of affairs, it is important to remember "that an issue may be one of vital public concern does not entitle a party to standing. Courts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which functioned here. By contrast to those forums, a litigant must establish its standing to seek judicial review" (Id.).
In the recent case of Mental Hygiene Legal Services v. Daniels, 33 N.Y.3d 44, 50, the Court, in analyzing, inter aha, organizational standing, reiterated the necessity of a petitioner to demonstrate an injury-in-fact which “. . . necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral or conjectural but is sufficiently concrete and particularized to warrant judicial intervention" (New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 214; citing The Society of the Plastics Industry. Inc., et al., v. County of Suffolk, et al., supra at 722; Spokeo, Inc. v. Robins, 136 S.Ct. 1540). While an organization can establish standing in several ways, the requirement of an injury'-in-fact is constant. Therefore. "... a claimed injury may not depend upon speculation about what might occur in the future, but must consist of cognizable harm, meaning that petitioner has been or will be injured'" (Matter of Brennan Ctr. for Justice at NYU Sch. of Law v. New York State Board of Elections, 159 A.D.3d 1299, quoting New York State Assn. of Nurse Anesthetists v. Novello, supra at 214).
In determining whether petitioner has standing in its own right, or alternatively associational/organizational standing, the injury-in-fact requirement must be analyzed in the context of the mandates set forth in the above-referenced Executive Orders, Guidance documents established by the NYSED, NYSDOH and AESHP, as well as through the rights, statutory or otherwise, afforded lo petitioners" members in respondents* re-opening plan. A thorough reading of these documents clearly indicate that a telework accommodation is not mandated or required by law, statute or Executive Order. The only requirement is that telework be considered as a potential accommodation to vulnerable populations. While normally discussed in instances seeking the extraordinary remedy of mandamus, which is denied when there is no clear legal right to the relief sought, the same reasoning applies to the standing issue before The Court as it relates to the absence of an injury-in-fact here, either to Ms. Harrigan herself or to any of petitioner's members. Petitioner has failed to demonstrate that a telework accommodation is statutorily mandated or required for which denial thereof would evince a clear and cognizable injury so as to confer standing. Simply put, protocols, Executive Orders, and Guidance documents from state agencies that require respondent to consider telework as an option/ potential accommodation and which suggest other accommodations, i.e., modified work settings, additional PPE, etc., are just that-suggestions which have been adopted and incorporated into respondents" re-opening plan. The fact that petitioner does not agree with respondents' decision, especially when viewed in the context that telework accommodation was granted to another member, does not give rise to an injury-in-fact to a right that does not exist, Petitioner has failed to demonstrate an injury-in-fact, as it is undisputed that Ms. Harrigan's request for telework accommodation was considered by respondent in conjunction with its re-opening plan, although denied. She was presented with alternative accommodations as set forth in adopted protocols which were not accepted by her.
It is therefore, ORDERED, that the petition is hereby denied and dismissed in its entirety.
This shall constitute the Decision and Order of The Court.