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Dismissal of Age Discrimination Case

[Kucic v Mamaroneck Union Free School District]


Silverman & Associates obtained a decision from the Supreme Court of the State of the New York, Westchester County granting our motion for summary judgment of the plaintiff’s age discrimination claims. The plaintiff, a high school orchestra teacher who was 45 years old at the time, was terminated from her non-tenured position. As a result, plaintiff sued the school district alleging age discrimination under Executive Law Sec. 296. We established that the plaintiff’s employment was terminated for legitimate nondiscriminatory reasons, and the plaintiff failed to raise a triable issue of fact that age was the reason for her termination. The Court granted summary judgment and dismissed the complaint.






Dismissal of Substantive Due Process Claim and First Amendment Retaliation Claim

[Jackson v Peekskill]


Silverman & Associates successfully obtained dismissal of a complaint in the United States District Court, Southern District of New York, on plaintiff's claims of unlawfully providing their minor daughter access to birth control pills and retaliation in violation of the First Amendment.


Plaintiffs are the parents of a minor child who was taken by a school counselor from school to a health clinic to be examined and was then prescribed birth control pills. Plaintiffs alleged that the defendants were deliberately indifferent to their constitutional right to educate their child in accord with their own views, depriving them of their right to substantive due process, retaliation in violation of the First Amendment, and violation of public health law requiring parental consent for administration of medical services to a child.


We successfully argued that the plaintiffs did not plausibly plead any deliberately indifferent actions that deprived plaintiffs of their right to educate their child nor did plaintiffs plausibly assert a claim for retaliation. Since the Court dismissed the federal claims, it declined to hear the state claims, and granted defendant’s motion to dismiss.






Dismissal of Due Process Claims


Caroline B. Lineen obtained a decision from the Southern District of New York granting defendants’ motion to dismiss plaintiff’s Due Process and State-Law claims. The plaintiff, a tenured elementary school teacher, was suspended after a parent reported “possible testing irregularities” where teachers may have coached students during New York State standardized exams. Plaintiff was administratively reassigned to home with full pay and benefits pending the District’s investigation.


As a result, plaintiff brought a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment. On plaintiff’s deprivation of a protected property interest in employment claim, the District Court held, “Plaintiff who continues to receive full pay and benefits has suffered no deprivation of property as a result of her reassignment.” The court also rejected Plaintiff’s claim of deprivation of protected property interest in contractual right to professional development, holding plaintiff, “presents no authority for that proposition and the court has found no case so holding. The scanty facts plaintiff provides do not suggest that she depends on its permanence or that it is important to her livelihood.” Ultimately, all remaining claims were dismissed and plaintiff’s leave to amend was denied.





Dismissal of Claims of Violations of the Fourth Amendment, Americans with Disabilities Act, New York State Human Rights Law

[GM v Massapequa Union Free School District]


Silverman & Associates obtained a dismissal from the United States District Court for the Eastern District of New York on plaintiff's claims of violations of the Fourth Amendment of the United States Constitution, Americans with Disabilities Act, and NY State Human Rights Law.


Plaintiff was an elementary school student diagnosed with attention deficit hyperactivity disorder (ADHD) whose disability sometimes led to uncontrollable fidgeting and certain ticks. Defendant, our client, was his teacher, who allegedly disciplined the plaintiff by segregating him from the class and he also alleged that he was bullied. The Court agreed with the defendant that it lacked subject matter jurisdiction and the plaintiff failed to state a claim. Plaintiff was subject to the exhaustion requirement of the Individuals with Disabilities Education Act (IDEA) and failed to seek relief under it.






Dismissal of Equal Protection Claims Based on Age and Disability

[Chizman v Nassau Board of Cooperative Educational Services]


Silverman & Associates obtained dismissal of lawsuit that alleged claims of age and disability discrimination by the United States District Court, Eastern District of New York. Plaintiff was a sixty-three-year-old custodian at the Nassau Board of Cooperative Educational Services (BOCES), our client. He was diagnosed with chronic obstructive pulmonary disease and hypertension, which impacted his ability to do his job, and several years later with cardiomyopathy and panic attacks. Soon after that diagnosis, he retired. Plaintiff claimed he


was forced to retire due to harassment and discrimination and brought this action. The Court granted the defendant's motion to dismiss plaintiff's claims of age and disability discrimination.






Appellate Division, Second Department Affirms Dismissal of “Bullying” Case


On September 16, 2015, in Maldari v. Mt. Pleasant CSD, we obtained a decision from the Appellate Division, Second Department affirming the summary judgment dismissal of a “bullying” claim.  According to the plaintiff’s allegations, he was teased, pushed and shoved and that an escalating pattern of bullying led to an assault in a high school cafeteria.  During discovery, we produced evidence to establish that the school district did not have notice of any prior similar conduct by the alleged bully.  The Westchester County Supreme Court granted summary judgment to the school district and the plaintiff appealed.


On appeal, the Appellate Division Second Department held that the school district established that there was a lack of actual or constructive notice of any prior similar conduct. Based on the lack of notice, the school district could not be responsible for any claims of negligent supervision of students.  In addition, the court held that the school district established that the cafeteria assault was an unforeseeable act. For these reasons, the plaintiff could not establish a negligent supervision cause of action and the bullying claim was dismissed.






Defense Verdict In Age and Gender Discrimination Pay Disparity Case


Lewis Silverman and Caroline Zacholl obtained a defense verdict in the Eastern District of New York on October 9, 2015 following a five-day trial. The plaintiff was an Assistant Superintendent for Personnel in a Long Island school district. The plaintiff alleged that the school district and its Superintendent discriminated against her because she was lower paid than other administrators who were younger and/or were male.  The defense focused on proof that all Assistant Superintendents received the same percentage rate raise each year and that in a few situations, raises were larger because of consolidation of administrative positions and certain individuals took on more responsibilities and duties.  Prior to summations the  Court dismissed by motion the 42 U.S.C. Section 1983 claims against the Superintendent and the school district.  The jury deliberated for approximately one hour and returned a verdict in favor of the school district dismissing all claims under Title VII, the Age Discrimination in Employment Act and the Equal Pay Act.






Dismissal of Age Discrimination Claim

[McGovern v Mt. Pleasant Union Free School District]


Silverman & Associates obtained a summary judgment dismissal in the United States District Court, Southern District of NY, for our client, the Mount Pleasant Central School District on plaintiff's claims of age discrimination.


Plaintiff was a special education teacher in the district. She was hired for a three-year probationary period, after which a tenure decision would be made. Plaintiff was evaluated several times in the probationary period. She received mixed ratings; some of the assessments were positive, others outlined deficiencies. There were also complaints made about the plaintiff's professionalism and integrity. Plaintiff was not recommended for tenure based on the totality of information on her. Plaintiff was terminated at the end of the school year. The district hired a younger replacement for plaintiff in time for the start of the following school year.


Plaintiff brought forth this age discrimination claim under the Age Discrimination in Employment Act (ADEA), seeking compensatory damages. Plaintiff's evidence did not support an inference that she was terminated for her age. We successfully provided evidence that Plaintiff was terminated for deficiencies in her job performance and questions regarding her professionalism. The Court granted summary judgment.






Dismissal of “Bullying” Claims Asserted under Rehabilitation Act, Americans with Disabilities Act, Negligence, Dignity for All Students Act (DASA)

[AT v East Islip School District]


Silverman & Associates obtained a pre-Answer dismissal by the United States District Court, Eastern District of NY, for our client, the East Islip Union Free School District.


Plaintiff attended school in the district. She had been diagnosed with severe depression, anxiety and mood disorder. She claimed that she was subjected to bullying, harassment, threats and physical assaults by the students in middle and high school. Plaintiffs brought this action alleging seven claims: (1) a Section 1983 claim based on a violation of the daughter's right to equal protection; (2) disability discrimination; (3) disability discrimination pursuant to the Americans with Disabilities Act, (4) a state law claim for negligent supervision or hiring; (5) a state law claim for negligent infliction of emotional distress; (6) a state law claim for negligence; and (7) a claim for negligence with respect to defendant's failure to implement the Dignity for All Students Act (DASA).


We successfully argued that the Court lacked subject matter jurisdiction over the Federal claims related to alleged bullying because plaintiff failed to exhaust administrative remedies and if the Court dismissed the federal claims, it should decline to exercise supplemental jurisdiction over the plaintiff's state claims. Accordingly, the Court dismissed the federal and state claims.






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Case results depend upon a variety of factors unique to each representation. Prior results do not guarantee or predict a similar outcome.

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