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March 31, 1982

Helene COHEN, Plaintiff,

The opinion of the court was delivered by: LEVAL


Plaintiff Helene Cohen, a teacher formerly employed by defendant Board of Education of the East Ramapo Central School District, brings this action against the Board and two named individual administrators for damages and injunctive relief pursuant to 42 U.S.C. §§ 1981, 1983 and the Fourteenth Amendment. Plaintiff alleges that she was denied her property interest in her tenured position without due process and equal protection of the law. Defendant's motion to dismiss on the ground of res judicata, collateral estoppel, failure to join an indispensable party, and failure to state a claim upon which relief may be granted was denied on June 9, 1980. Plaintiff now moves for an order compelling defendants to answer plaintiff's interrogatories and compelling defendants to produce for plaintiff's inspection those documents requested by plaintiff. Defendants move for summary judgment.

 Plaintiff's action is based on three claims. First, she claims that she did not receive adequate notice prior to the loss of her tenured teaching position at the East Ramapo School. Second, she claims that she did not receive the constitutionally required pretermination hearing. Her last claim is that defendants' action in terminating her was arbitrary and capricious and resulted in her being treated differently from others similarly situated. Defendants claim that plaintiff's action is time-barred and, in the alternative, that she was given adequate notice, had no right to a pretermination hearing, and although treated differently from other teachers, was treated on the basis of rational differences in her situation.


 Plaintiff was hired in September 1967 by the Board of Education of the East Ramapo Central School District to teach as an "intensive teacher" on a part-time basis. Intensive teachers were part of defendants' "Ramapo Plan for the Individualization of Instruction," which provided intensive instruction for students in the upper and lower ten percent of students as measured by a performance scale. Some of this instruction was provided by part-time teachers such as the plaintiff. Under a policy of the defendants, adopted on December 20, 1965, part-time teachers were treated identically to full-time teachers for the purpose of determining tenure and seniority. In other words, a part-time teacher was credited with one year of teaching for each year even though he or she was only teaching part-time. The first collective bargaining agreement between defendant and the East Ramapo Central School District Teachers Association, signed in June 1968, incorporated defendants' tenure and seniority policy. Each collective bargaining agreement through June 30, 1977, continued this policy.

 Under this policy, plaintiff satisfactorily completed a three-year probationary period and was appointed to serve as a tenured teacher in the elementary tenure area beginning September 1970. In September 1972, plaintiff was promoted to a full-time regular elementary teacher position. After another three-year probationary period, she was given tenure as a full-time regular elementary teacher. Her status was not changed until 1976.

 In that year, defendant Board of Education was pressed by declining enrollment and by decreasing financial resources. The Board decided that it had to eliminate some tenured teaching positions. Section 2510 of the New York Education Law requires that tenured teachers be laid off or "excessed" on the basis of their seniority. N.Y.Educ.Law § 2510(2) (McKinney 1981). Pursuant to that section, the Board excessed a number of teachers on the basis of their seniority as computed at that time by Mrs. Elinor Waldman, defendant Board's Director of Personnel. In computing seniority, Mrs. Waldman used a method that deviated from prior Board policy and from the collective bargaining agreement: she computed seniority on a pro-rata basis. For example, she credited teachers who had one year of full-time teaching with one year of seniority and teachers who had taught one year on a part-time basis with one-half year of seniority. The terminations that resulted from the Board's decision and Mrs. Waldman's calculations became effective on June 30, 1976.

 Within four months of the lay-offs, twenty part-time teachers who had been terminated began proceedings under Article 78 of the New York Civil Practice Law and Rules, N.Y.Civ.Prac.Law §§ 7801-7806 (McKinney 1981). Schlosser v. Board of Education, 62 A.D.2d 207, 404 N.Y.S.2d 871 (1978), aff'd, 47 N.Y.2d 811, 391 N.E.2d 1364, 418 N.Y.S.2d 388 (1979). These actions sought review of defendants' actions, reinstatement, and back pay. Although the plaintiff was aware of these proceedings, she did not join them, presumably because at the time she was not affected by the termination order.

 On November 18, 1976, Mrs. Waldman met with plaintiff and informed her that there had been an error in the computation of plaintiff's seniority. That error was to be corrected, and as a result, the plaintiff and Anne Bonfield were to be laid off, and teachers Larry Denerstein and Sarah Herman were to be rehired. Mrs. Waldman indicated, however, that both plaintiff and Ms. Bonfield could continue teaching at the school on the same schedule and in the same classes as regular substitute teachers. The only difference in their employment would be their salaries and seniority: for plaintiff, it meant a salary reduction of about $ 8,260 and reduction of her seniority from 9.3 years to 4.3 years. What else occurred during this meeting is in dispute. On December 1, 1976, defendant Board of Education terminated plaintiff's employment as a regular tenured teacher, effective on the same day. Plaintiff was notified of this action on December 2, 1976. Plaintiff chose to continue as a regular substitute.

 Sometime in December 1976, plaintiff received a notice of pendency in the Schlosser Article 78 proceedings. The notice indicated that certain excessed teachers had begun an action that might adversely affect the seniority of those notified. The notice indicated that those who wished could intervene in the action. Several teachers intervened on the side of defendants; some others supported in large part, but not completely, the position of the petitioners. Plaintiff did not intervene, even though her attorney in this action also represented some of the petitioners in Schlosser.

 In June 1977, plaintiff was terminated as a regular substitute teacher. She has not worked for defendant Board since. Under section 2510(3) of the New York Education Law, a school board that has laid off tenured teachers under section 2510(2) must establish a preferred eligible list of candidates for appointment to vacancies that may subsequently arise. N.Y.Educ.Law § 2510(3) (McKinney 1981), amended by N.Y.Educ.Law § 2510(3) (McKinney Supp.1981). Excessed teachers with the most seniority are to be placed at the top of the list. Although not required to, defendant Board has had a policy of filling regular substitute positions that arise from the preferred eligible list. Plaintiff was placed on the list at the position determined by her seniority as calculated by Mrs. Waldman on the pro-rata basis. Several positions have opened, but not a sufficient number to require the Board to rehire the plaintiff, given the pro-rata calculation of plaintiff's seniority. If seniority had been calculated on the full-credit basis, plaintiff would have been credited with seniority sufficient to require the Board to rehire her from the preferred eligible list.

 In May 1977, plaintiff and Anne Bonfield brought an Article 78 proceeding against defendants in the Supreme Court, Rockland County. Bonfield v. Board of Education, No. 3019 (N.Y.Sup.Ct. June 22, 1977) (hereinafter cited as Cohen I ). On July 18, 1977, Justice Beisheim of the Supreme Court, Rockland County, entered a judgment in favor of the Board of Education in Schlosser. This judgment was reversed on May 17, 1978, by the Appellate Division, which held that the Board was required to compute the part-time teachers' seniority on the basis of the full-credit method contained in the collective bargaining agreements and in the Board's policy. The action was remanded to the Supreme Court.

 One month after the reversal in Schlosser, Justice Silberman filed his opinion in Cohen I. He found that, although the result was unfortunate in light of the Appellate Division's decision in Schlosser, plaintiff's Article 78 action was time-barred by the four-month statute of limitations for such actions. He held that she could not attack defendants' recalculation of her seniority because more than four months had passed between the time that her cause of action accrued, December 2, 1976, and the time that she filed her complaint, May 6, 1977. This decision was subsequently affirmed by the Appellate Division and leave to appeal to the Court of Appeals was denied.

 Plaintiff filed another Article 78 proceeding on December 26, 1978, alleging that positions had become vacant and then filled in violation of her right to be rehired under N.Y.Educ.Law § 2510(3). Cohen v. Board of Education, No. 233 (N.Y.Sup.Ct. Sept. 4, 1979) (hereinafter cited as Cohen II ) Justice Kelly, in the Supreme Court, Rockland County, dismissed plaintiff's petition. He found that her claim was not time-barred because she had alleged a violation that occurred on or about September 1, 1978. He based his dismissal instead on the fact that her claim relied on a determination of her seniority under a full-credit system, but that the decision in Cohen I had determined that, as to the plaintiff, her seniority was as the Board had determined it in 1976 on the pro-rata basis.

 In the meantime, Justice Marbach was considering Schlosser on remand. On September 13, 1979, Justice Marbach ordered that teachers beginning employment after December 20, 1965, and prior to July 1, 1971, be granted seniority on a full-time basis regardless of whether they were full-time or part-time. The parties dispute whether that order was to apply to all teachers in the East Ramapo School District or only to the petitioners in the Schlosser proceeding.

 Most recently, the Appellate Division reversed Justice Kelly's decision in Cohen II. 84 A.D.2d 536, 443 N.Y.S.2d 170 (1981). The Appellate Division found that "the only issue decided in the prior proceeding (Cohen I ) was that petitioner's claim pursuant to subdivision 2 of section 2510 of the Education Law was barred by the applicable Statute of Limitations." Id. at 537, 443 N.Y.S.2d at 172. Because Cohen II is based on events that occurred after the commencement of Cohen I, the dismissal in Cohen I is not res judicata in Cohen II. The Appellate Division also found that the dismissal in Cohen I was "based exclusively upon the technicalities of CPLR 217 as it related to the cause of action there pleaded. Neither petitioner's claim to additional seniority credit, nor the question of whether said claim may have been barred by the doctrine of laches was adjudicated therein .... Thus, petitioner ...

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