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Novak v. Board of Education of the Fayetteville-Manlius Central School District

March 14, 2007


The opinion of the court was delivered by: Scullin, Senior Judge



On February 14, 2005, Plaintiff filed his Complaint asserting eleven causes of action arising out of his five-day suspension without pay from his job as a school bus driver in the Fayetteville-Manlius Central School District. On January 15, 2007, Defendants filed their motion for summary judgment on all of Plaintiff's claims. In response, Plaintiff withdrew six causes of action, so that his remaining claims are for (1) violation of the First Amendment; (2) violation of Article I, § 8 of the New York Constitution; (3) violation of 42 U.S.C. § 1983; (4) deprivation of liberty and property interests without due process; and (5) an injunction. Plaintiff also filed a cross-motion for summary judgment on his remaining claims.

Currently before the Court are Defendants' motion and Plaintiff's cross-motion for summary judgment on Plaintiff's remaining claims. On March 9, 2007, the Court heard oral argument in support of, and in opposition to, these motions. At that time, the Court granted in part Defendants' motion and denied in part Plaintiff's cross-motion for summary judgment dismissing Defendant Judith Clarke from this action, as well as dismissing Plaintiff's procedural and substantive due process claims. The Court reserved decision on all other aspects of the motions. The following constitutes the Court's written decision.


Defendant Fayetteville-Manlius Central School District ("District") has employed Plaintiff as a bus driver since 1994, and Defendant Clarke acted as his supervisor. Prior to 2005, the Fayetteville-Manlius Transportation Association ("Association") represented the District's bus drivers; and, subsequently, a local affiliate of the Service Employees International Union ("SEIU") has represented them.

The collective bargaining agreement ("CBA"), operative during the relevant periods, includes a three-step grievance procedure and a provision allowing the Transportation Supervisor to impose minor discipline. The essential grievance procedure follows:

Step 1: (a) Grievant addresses the grievance with his immediate supervisor.

(b) Within two days of this conference,

Grievant may elect to address the grievance orally with a designated representative of the Director of Business Services. Grievant may request that an Association representative be present.

Step 2: Grievant may file a written grievance with the Director of Business Services who shall give a written answer within three days.

Step 3: Grievant, through the Association only, may appeal to the Superintendent of Schools or his designated representative who shall discuss the matter with the Association's grievance committee within ten school days. The Superintendent or his representative shall give a written decision within five school days after this discussion.

The Association may further appeal within five school days of the decision, and the parties shall appoint an impartial Arbitrator and submit the grievance for his binding decision.

See Affidavit of Mary Ellen Vaillancourt ("Vaillancourt Aff."), sworn to Oct. 19, 2006, at Exhibit "1," at 16-17.

Furthermore, concerning discipline, the CBA waived the procedures set forth in N.Y. Civ. Serv. Law § 75, allowing the Transportation Supervisor to impose discipline up to and including five unpaid days suspension for minor violations of departmental rules and regulations. See id. at Exhibit "1," at 3.

Beginning in 2000, Plaintiff was involved in efforts to affiliate the local driver's union with a larger union. On May 6, 2003, Plaintiff testified before the Public Employment Relations Board ("PERB") in connection with an improper labor practice charge that co-worker Richard Griffith filed against the District. Thereafter, Plaintiff asked Defendant Clarke whether she would consider his absence from work on the day of the hearing a paid sick day or a paid personal day. Defendant Clarke answered that she would consider it to be a paid personal day.*fn2

The next day, Plaintiff filed a grievance; but the Association declined to pursue the grievance to arbitration.

During Plaintiff's union-organizing efforts, he repeatedly told co-workers a story, which has been labeled "the sheep allegory." Plaintiff's version of the allegory follows:

[W]e were like a bunch of sheep and [sic] that what we did was [sit] around in a group all nervously waiting for the wolf to show up. And sure as shooting here sooner or later, here comes the wolf and the wolf would come down and say, I feel like some mutton tonight and he'd come down and he'd take one away and the rest would all close ranks and all mutter, glad it wasn't me, glad it wasn't me. And I said what we should do . . . is when the wolf shows up, we should all turn and say, come on down wolfy, we'll kick your ass, combine together as a group.

See Declaration of Frank J. Vavonese, Esq. ("Vavonese Decl."), sworn to Feb. 20, 2007, at Exhibit "E," at 10-11.

Co-workers reported versions of the story to Defendant Clarke, and she reported the matter to the District's administration on approximately October 30, 2003.

Defendants conducted an investigation and hired a professional investigation service called AMRIC Associates Ltd. ("AMRIC") on November 13, 2003. In their reports to Defendant Clarke and in interviews during the AMRIC investigation, two drivers indicated that Plaintiff told a different version of the story involving the group of sheep killing the wolf or killing "Judy" (referring to Defendant Judith Clarke). The District also interviewed Plaintiff, with his attorney present, on December 1, 2003. At that time, Plaintiff's counsel answered all questions on his behalf. Therefore, the District interviewed Plaintiff again on December 9, 2003, when Plaintiff admitted telling the sheep allegory but denied ever using the word "kill." On January 9, 2004, AMRIC issued the report of its investigation, which stated that it was unlikely that Plaintiff posed a threat at that time. See generally Vavonese Decl. at Exhibit "J."

On February 13, 2004, the District suspended Plaintiff for five days without pay, and Defendant Clarke communicated the decision to Plaintiff in a letter. The letter stated that Plaintiff was suspended for "[d]iscourteous treatment of the public or any other conduct which does not merit the public trust or is inappropriate behavior as a representative of the District" and "[f]alsification or omission or pertinent information of District forms or records including daily work sheets and attendance records, willful misrepresentation of facts, forging another's signature, etc." In addition, the District stated that it found Plaintiff had engaged in "unprofessional conduct or language." In support of its decision, the District essentially stated that Plaintiff lied by denying he used the word "kill" in the sheep allegory and by denying that he made a "sheep 'bleating'" sound at Defendant Clarke on a prior occasion. See Vavonese Decl. at Exhibit "K." Pursuant to the CBA's ...

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