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Tuesday, October 19, 2021

CSEA Wins Improper Practice Charge Against the NYS Unified Court System For Unilateral Imposition of a COVID-19 Vaccine Requirement Without Proper Negotiation

 



Matter of Civil Serv. Emp. Ass'n v. N.Y.S. Public Emp't Relations Bd.

UCS Enjoined, Restrained From Implementing Mandatory Vaccination Requirement

New York Law Journal, October 19, 2021 at 12:00 AM

DOCKET
Practice Area: Employment Litigation
Date filed: 2021-09-24
Court: Supreme Court, Albany

Attorneys: for plaintiff: For Petitioner: Steven M. Klein, of counsel, Daren J. Rylewicz, Esq., Civil Service Employees Association Inc., Albany, New York.; for defendant: For Respondent: Anthony Perry, Esq. and Lisa Evans, Esq., Office of Court Administration, New York, NY. For New York State Public Employment Relations Board: Michael Fois, Esq., Albany, New York.

Judge: Justice Christina Ryba
Case Number: 908328-21

CASE DIGEST SUMMARY

Petitioner CSEA filed an improper practice charge against the NYS Unified Court System claiming its unilateral imposition of a mandatory COVID-19 vaccination requirement absent proper negotiation with CSEA violated its CBA. PERB found reasonable cause to believe UCS's unilateral implementation of the requirement was an improper practice, authorizing CSEA to commence this suit for injunctive relief and restraining UCS from implementing the requirements until PERB was able to issue a decision on the merits. CSEA argued the requirement constituted a new work rule changing terms and conditions of employment, thus UCS's unilateral imposition constituted an improper practice. The court agreed finding reasonable cause to believe UCS's unilateral imposition of the requirement was an improper practice violating CSL §209-a(1)(d). It also found UCS's imposition of the requirement before receiving PERB's decision on the improper practice charge would result in immediate and irreparable injury to UCS employees and CSEA, granting its application for temporary injunctive relief and enjoining UCS from applying the requirement.

FULL CASE DIGEST TEXT

On September 3, 2021, petitioner Civil Service Employees Association Inc., Local 1000, AFSCME, AFL — CIO (hereinafter CSEA), the bargaining unit for certain non-judicial employees of respondent New York State Unified Court System (hereinafter UCS), filed an improper practice charge against UCS alleging that its unilateral implementation of a mandatory COVID-19 vaccination requirement without proper negotiation with CSEA violated its collective bargaining obligations under Civil Service Law §209-a (1) (d)

Given the impending September 27, 2021 effective date of the mandatory vaccination requirement, CSEA sought injunctive relief from the New York State Public Employment Board (hereinafter PERB) pending a decision on the improper practice charge. 

In a determination dated September 13, 2021, PERB found reasonable cause to believe that UCS’s unilateral implementation of the mandatory vaccination requirement was an improper practice and that immediate and irreparable injury would occur absent an injunction. Accordingly, PERB authorized CSEA to commence the instant proceeding pursuant to Civil Service Law §209-a (4) for injunctive relief enjoining and restraining UCS from implementing the mandatory vaccination requirement until PERB is able to issue a decision on the merits of the underlying improper practice charge. 

The matter is presently before the Court as Acting Part 1 Justice for consideration of CSEA’s application for temporary injunctive relief enjoining USC from implementing the mandatory vaccination requirement — which is scheduled to commence on September 27, 2021 — pending the outcome of the underlying improper practice charge filed with PERB.

The Court conducted oral argument on the request for temporary injunctive relief with counsel for all parties via Teams on September 23, 2021, and the matter is now ripe for determination. Pursuant to Civil Service Law §209 — a (4), a party may file an improper employer practice charge to petition the Court for injunctive relief where PERB finds “that (i) there is reasonable cause to believe an improper practice has occurred, and (ii) where it appears that immediate and irreparable injury, loss, or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of or return to, the status quo to provide meaningful relief”. 

When such a petition is filed, Civil Service Law §209-a (4) (d) permits the Court to grant the necessary injunctive relief pending the determination of the underlying improper practice charge upon a finding “that there is reasonable cause to believe an improper practice has occurred and that it appears that immediate and irreparable injury, loss or damage will result thereby rendering a resulting judgment on the merits ineffectual necessitating maintenance of, or return to, the status quo to provide meaningful relief.” Civil Service Law §209-a (4) (d) further provides that “[s]uch relief shall expire on decision by an administrative law judge finding no improper practice to have occurred, successful appeal or motion by respondent to vacate or modify pursuant to the provisions of the civil practice law and rules, or subsequent finding by the board that no improper practice had occurred.”

Here, the mandatory vaccination requirement that forms the basis of CSEA’s improper practice charge against UCS was first enunciated in an emailed directive of Chief Administrative Judge Lawrence Marks, dated August 25, 2021, advising that UCS was implementing a mandatory COVID-19 vaccination requirement for all non-judicial employees that would take effect on September 27, 2021, with full details to follow in a forthcoming announcement. Those specific details were later set forth in a Memorandum entitled “Mandatory Vaccination Requirement”, which was disseminated via email to all nonjudicial personnel on September 10, 2021. 

The Memorandum, which was jointly authored by UCS’s Chief of Operations, Nancy J. Barry, and Chief of Administration, Justin A. Barry, directs in relevant part as follows:
All non-judicial personnel must be fully vaccinated against COVID-19 by September 27, 2021, or as soon thereafter as medically practicable provided they have received at least one dose of a COVID-19 vaccine by such date.
To this end, no later than September 27, 2021, all-non-judicial personnel must either submit proof that they: (1) are fully vaccinated; or (2) have received at least one dose of any COVID19 vaccine.

The Memorandum proceeds to outline acceptable forms of proof of vaccination, the procedures for submitting such proof, the requirement that partially vaccinated employees submit to regular mandatory COVID-19 testing until fully vaccinated, and the manner in which an employee may seek a medical or religious exemption to the mandatory COVID-19 vaccination requirement. The Memorandum further delineates the consequences to be imposed upon employees who fail to comply with the mandatory vaccination requirement as follows:
Non-Compliance
Employees who fail to comply with the provisions of this Policy are prohibited from reporting to work and may be considered absent without authorization for which approval to charge accruals may be denied until they have taken steps to remedy their non-compliance. Continued failure to comply may result in disciplinary action, up to and including termination.

CSEA contends that the mandatory vaccination requirement constitutes a new work rule which changes the terms and conditions of employment, and that therefore UCS’s unilateral promulgation and implementation of the mandatory vaccination requirement without prior negotiation constitutes an improper practice in violation of Civil Service Law §209-a.1 (d). Under the Taylor Law (Civil Service Law §200 et seq.), a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2]), and the failure to do so constitutes an improper employment practice (see, Civil Service Law §209 — a [1] [d]).

Thus, an employer is prohibited from unilaterally imposing a work rule affecting the “terms and conditions of employment” absent a clear legislative intent permitting the unilateral change without prior negotiation (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d 480, 486 [1995]). Whether a particular issue is a new work rule affecting the “terms and conditions of employment”, and is thus a mandatory subject of negotiation, is a matter within PERB’s primary jurisdiction to determine (see, Matter of Town of Carmel Police Benev. Ass’n v. Public Empl. Rels. Bd. of the State of NY, 267 AD2d 858, 859 [1999]). However, work rules involving the possibility of discipline or termination have been found to affect the terms and conditions of employment (see, Matter of Levitt v. Board of Collective Bargaining of City of NY, 79 NY2d 120 [1992]).

Upon a full review of the record and consideration of the contentions advanced by the parties during oral argument, the Court concludes that there is reasonable cause to believe that UCS’s unilateral imposition of the mandatory vaccination requirement is an improper practice that violates Civil Service Law §209-a (1) (d). The mandatory vaccination requirement potentially implicates a variety of terms and conditions of employment requiring mandatory negotiation, including but not necessarily limited to possible discipline and termination for non-compliance (see, Town of Carmel Police Benev. Ass’n Inc. v. Pub. Emp. Rels. Bd. of State of NY, 267 AD2d at 859 [1999]). While the requirement for mandatory bargaining may be circumvented where a clear legislative intent grants the employer authority to impose the unilateral change in question (see, Matter of City of Schenectady v. New York State Pub. Empl. Relations Bd., 85 NY2d at 486 [1995]), UCS has failed to identify any statute which specifically permits the imposition of a mandatory COVID-19 vaccination requirement without prior negotiation. Moreover, UCS has failed to produce any Executive Order or administrative regulation which would authorize the mandatory vaccination requirement it seeks to impose.

To the extent that UCS argues that its authority to unilaterally impose a mandatory vaccine requirement upon its employees is derived from Judiciary Law §211, the Court is not persuaded. Although that statute permits the Chief Judge to establish administrative policies for general application to UCS personnel, Judiciary Law §211 (1) (d) expressly requires that such standards “be consistent with the civil service law” — which as previously noted requires UCS to negotiate in good faith with the bargaining representative of its current employees regarding “terms and conditions of employment” (Civil Service Law §204 [2] ). Moreover, to the extent that UCS relies upon a recent decision of the Honorable Lawrence L. Love in New York City Municipal Labor Committee v. The City of New York (Supreme Court, New York County, Sept. 22, 2021) lifting a temporary injunction relating to mandatory vaccinations, that case is distinguishable because, unlike this case, authority for the mandatory vaccination order therein was premised upon an emergency Executive Order and various administrative regulations authorizing the adoption of vaccination measures to control the spread of COVID-19. Similarly, this case is distinguishable from Matter of Serafin v. New York State Department of Health (Index No. 908296-211) inasmuch as the mandatory vaccination requirement, in that case, was premised upon statutory and regulatory authority.

Next, the Court also determines that UCS’s imposition of the mandatory vaccination requirement on September 27, 2021, before receiving PERB’s decision on the improper practice charge, will result in immediate and irreparable injury to UCS employees and CSEA. Indeed, if PERB ultimately deems UCS’s mandatory vaccination requirement improper, CSEA-represented employees who unwillingly complied with the directive will have no recourse because they will suffer a harm that is not compensable by money damages. In addition, CSEA will suffer irreparable harm to its fundamental purpose and diminish the trust of those it represents if UCS is allowed to even temporarily circumvent the collective bargaining requirements required by the Civil Service Law while the underlying improper practice charge is pending before PERB.

In view of the Court’s finding that there is reasonable cause to believe an improper practice has occurred and that irreparable injury will result unless the status quo is maintained, CSEA’s application for temporary injunctive relief is hereby granted.

For the foregoing reasons, it is hereby

ORDERED that respondent New York State Unified Court System is hereby enjoined and restrained from applying the mandatory vaccination requirement, scheduled to commence on September 27, 2021, to non-judicial employees represented by CSEA, and it is further

ORDERED that the Administrative Law Judge in the underlying improper practice proceeding is directed to issue a decision on the merits of the charge within 60 days of this decision.

This constitutes the Decision of the Court, the original of which is being transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for petitioner shall promptly serve notice of entry on all other parties (see, Uniform Rules for Trial Courts [22 NYCRR §202.5-b [h] [1], [2]).

Dated: September 24, 2021

See previous action posted on NYC Rubber Room Reporter :

NYC Rubber Room Reporter, September 23, 2021


UPDATE September 24, 2021

CSEA filed a petition seeking restraining order; hearing set for Oct. 1

CSEA files lawsuit to block New York vaccine mandate

The petition is one of at least three that seek to halt the mandate set to take effect Monday [September 27, 2021]

, Times Union, Sept. 23, 2021

ALBANY — The state Civil Service Employees Association has filed a petition on behalf of roughly 5,600 members who work in the state's court system seeking an injunction to halt the vaccine mandate that is scheduled to go into effect on Monday.

A similar petition was also filed in state Supreme Court in Albany this week on behalf of a group of Buffalo-area physicians, nurses and a nursing home administrator. Assemblyman David DiPietro, an Erie County Republican, is also listed as a plaintiff in that case.

The legal action is unfolding as Gov. Kathy Hochul's administration has not backed down from a mandate that was announced in July by former Gov. Andrew M. Cuomo. It requires a multitude of public-facing workers, mainly in hospitals, nursing homes and other long-term care facilities, to receive at least their first vaccination by Sept. 27 — and for others a deadline of Oct. 7 — or risk being suspended or terminated from their jobs.

The mandate affects both public and private health care facilities. Thousands of nurses and other medical professionals have declined to be vaccinated; officials with hospitals and group homes that care for the disabled said a staffing crisis that existed before the coronavirus pandemic will be exacerbated if many of those workers are off the job next week.

Many hospitals are reducing or eliminating elective surgeries and some are diverting patients to other hospitals to deal with the staffing issues.

Hochul's office on Wednesday did not answer questions about whether the governor might delay the mandate or has a plan in place if large numbers of nurses and other health care professionals are suspended from their jobs beginning Monday.

At a news conference Thursday morning, the governor said she "will be announcing a whole series of initiatives to be prepared for a situation on Monday that I hope doesn't happen.

"These are obviously very caring people or they obviously would not have chosen this profession," she said. "Every single person who ends up in your care has the right to know ... that there is no chance they will be infected by the person charged with protecting them and their health. ... Those who have done the right thing don't want to be with people who are not vaccinated ... they're entitled to a safe workplace as well."

Health care industry officials, including many private hospitals, are separately making plans for a potential staffing crisis.

“The science is clear, vaccines work, and we need as many people vaccinated as soon as possible. But this could turn out to be the paradox of the mandate,” Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said in a statement issued Thursday morning. “We want to make staff and residents safer through vaccination, but if people start walking off the job and there aren’t enough workers to take care of residents, we actually put them in jeopardy.”
 
Balboni, who is not calling for the mandate to be rescinded or delayed, said his organization and industry administrators are calling for a staffing emergency plan, which may include mutual-aid requests, increased distribution of personal protective equipment, real-time monitoring by the state’s health department and increased testing.

Hochul's administration this week was locked in negotiations with multiple state labor unions, who have said the state's mandate should have been subject to collective bargaining and not simply imposed under a provision of state health law.

In the case filed by CSEA this week, they said the Public Employment Relations Board had determined the state Unified Court System's vaccination mandate for judges and nonjudicial employees "constitutes an improper practice" and authorized the union to file for a temporary injunction in state Supreme Court. CSEA is seeking a stay of the mandate until an administrative law judge issues a decision in their PERB case.

In the case filed on behalf of the Buffalo-area medical professionals, they assert that the U.S. Food and Drug Administration earlier this month reported a "1,000 percent increase" in adverse reactions to coronavirus vaccines at a meeting where it recommended against requiring booster shots for people under 65.

That petition also states the mandate does not provide exemptions for religious beliefs or for those "that were previously infected with COVID-19 and who have natural immunity."

Natural immunity "is at least as effective as vaccination at preventing future COVID-19 infections," the petition states, adding that a person who gets vaccinated to keep their job but suffers an adverse reaction "will be without any legal recourse for any such injuries or damages they suffer as a result of vaccination."

Late Wednesday, after the Times Union asked the governor's office for comment, it issued a statement saying that separate agreements with CSEA and the Public Employees Federation would allow nurses and other health care professionals at state-run hospitals to be eligible to work overtime at 2.5 times the normal rate of salary, up from 1.5 times. But that incentive, which would be retroactive to Sept. 16 and last through the end of the year, is not tied to the vaccine mandate.

Three people familiar with the negotiations between Hochul's administration and multiple labor unions said the incentive being offered by the administration is for affected health care employees to receive a half-day of vacation if they are vaccinated. That offer, however, is contingent on the unions agreeing that their members would not have contractual rights to use accrued time, such as sick or vacation days, to offset any lost hours while they are suspended.

None of the unions had agreed to the proposal by late Wednesday.

Even before the coronavirus pandemic, hospitals and other medical providers and long-term care facilities were facing a staffing crisis  — including group homes for disabled individuals, where some nurses are being forced to work 24-hour shifts.

The state Department of Health estimated this week that about 81 percent of hospital employees have been fully vaccinated. The mandate set to take effect on Monday requires the workers to have at least one COVID-19 vaccination shot.

Last week, a federal judge in Utica issued an order temporarily restraining employers from enforcing the state vaccine mandate on health care workers who have sought a religious exemption.

The ruling by U.S. District Judge David N. Hurd was handed down in a case filed against Hochul, health Commissioner Dr. Howard Zucker — whose resignation was announced Thursday — and state Attorney General Letitia James on behalf of 17 medical professionals. It is scheduled to be argued next week.

Saturday, September 25, 2021

Federal Appeals Court Temporarily Blocks NYC Teacher Vaccine Mandate Pending a Review By Three-Member Panel

 

The mandate represents “a rational policy decision” on how to best protect kids from the
virus, said judge.

UPDATE: Early Friday evening, a federal appeals court granted a temporary injunction staying the enforcement of the mandate requiring all city public-school employees to be vaccinated against the coronavirus (COVID-19) by Monday.

The United States Court of Appeals for the Second Circuit said the injunction is in place only until a three-member panel of the court can review an appeal of a Brooklyn federal court judge’s ruling on Thursday, which upheld the mandate.

A group of teachers had filed a suit two weeks ago seeking to block the vaccine requirement. The teachers are appealing the ruling by Judge Brian M. Cogan.

The review, which is on an expedited basis, could possibly occur over the weekend.

“We’re confident our vaccine mandate will continue to be upheld once all the facts have been presented because that is the level of protection our students and staff deserve,” said a Department of Education (DOE) spokeswoman. “Our current vax-or-test mandate remains in effect and we’re seeking speedy resolution by the Circuit Court next week. Over 82 percent of DOE employees have been vaccinated and we continue to urge all employees to get their shot by September 27.”

Updated: Sep. 25, 2021, 8:43 a.m. | Published: Sep. 24, 2021, 2:24 p.m.STATEN ISLAND, N.Y. — 


A federal judge has rejected a bid by hundreds of teachers to halt enforcement of the city’s controversial mandate which requires all public-school employees to be vaccinated against the coronavirus (COVID-19) by Monday or face losing their job.

Brooklyn federal court Judge Brian M. Cogan shot down the plaintiffs’ request for a preliminary injunction.

The judge said he wasn’t unsympathetic to the plaintiffs’ predicament, but the mandate is reasonable.

“In denying plaintiffs’ motion, this court is not impugning either the integrity or validity of the plaintiffs’ concerns,” wrote Cogan in a decision handed down Thursday. “No one will get the last laugh if it turns out that 10 or 20 years from now, plaintiffs’ fear of long-term deleterious effects from the vaccination proves to be well-founded. … However, the court cannot reasonably conclude that the (city’s) arguments in favor of vaccination were not made in good faith, or that they are irrational.

“Substantive due process, therefore, requires the court to afford deference to (the city’s) weighing of the competing concerns.”

The plaintiffs are challenging the ruling.

“My partner, Louis Gelormino, and myself respect the court’s decision but obviously disagree with it,” said Mark J. Fonte, a lawyer for the plaintiffs. “With the deadline looming, we are moving expeditiously to appeal this decision to the U.S. Court of Appeals and plan to file with the court today. We are cognizant of the anxiety of our clients and are hoping to prevail on appeal.”

Two weeks ago, the plaintiffs had filed the suit against the city, Department of Education (DOE), and officials seeking class-action status, along with injunctive relief and compensatory damages.

The vaccine mandate, they contend, is arbitrary and capricious and interferes with their right to pursue their chosen profession.

The suit also cited concerns about the potential long-term effects of a newly-developed vaccine for which long-term data is not available.

In addition, the plaintiffs maintain the mandate violates the Equal Protection Clause of the Fourteenth Amendment. Other municipal union employees may opt-out of the vaccine through weekly testing; however, public-school employees don’t have that recourse.

They can, however, apply for a religious or medical exemption.

The mandate requires every city DOE employee — including teachers, principals, custodians and central office staff — to receive at least one dose of the vaccine by Monday.

SEPARATE STATE COURT LAWSUIT



On Wednesday, a Manhattan state Supreme Court justice, responding to a separate lawsuit, lifted a temporary injunction which had blocked the enforcement of the mandate.



Cogan, likewise, denied a temporary injunction, although his ruling does not nullify the federal suit.



The decision allows the enforcement of the mandate, for now, until the suit itself is decided.



“Yet again, another court has cleared the way for a vaccine mandate at the DOE which is in the best interest of children and department employees,” said Nick Paolucci, director of public affairs and press secretary for the city Law Department. “The court has again recognized the authority of the Health Department to implement a mandate that is firmly grounded in science and the expertise of public health officials from across the nation.”



In his ruling, Cogan acknowledged the mandate may ultimately disqualify the plaintiffs from their jobs in city public schools.



However, it wouldn’t preclude them from working elsewhere, such as in private schools in the city or public schools outside the five boroughs.



“Plaintiffs are not being denied their fundamental right to pursue their profession,” he wrote.



Requiring workers to be inoculated by a vaccine approved by the federal Food and Drug Administration does not impinge on their rights, said the judge.

The mandate represents “a rational policy decision” on how to best protect kids during a global pandemic, Cogan said.



“Although plaintiffs argue that there are other proven means of preventing the spread of COVID-19 in schools, among them frequent testing and mask-wearing, it is not shocking for the city to conclude that vaccination is the best way to do so, particularly at a time when viral transmission rates are high,” wrote the judge.



In support, the city had cited the federal Centers for Disease Control and Prevention’s recommendation that teachers and staff be vaccinated “as soon as possible,” Cogan said.



RATIONAL BASIS



The judge also said there was a rational basis for the difference between the mandate requirements for public school employees and other city workers.



While allowing opt-out testing for other workers might be appropriate, the stiffer vaccine mandate for teachers and school employees is “not unreasonable,” said the judge.



School workers are in close contact indoors for “long hours” each day with children under age 12 who are not eligible to be vaccinated, he said.



Social distancing, mask-wearing and testing may be sufficient to protect other municipal workers, particularly since a number of them would be inoculated, said the judge.

Schools, however, are another story.

“It is not irrational to conclude that such measures would not adequately protect unvaccinated children in a school setting, especially as some of these children will have preexisting conditions that make them especially vulnerable,” wrote Cogan.



In addition, if the vaccine reduces the risk of infection, as the city contends, the mandate would minimize teacher and student absences due to contraction of the virus or quarantine, the judge said.

Wednesday, August 4, 2021

Judicial Watch Files a Lawsuit To Protect The Right of Teacher Jeanne Hedgepeth To Speak Out on Facebook Criticizing Chicago Riots

Palatine High School | Township High School District 211

This case will provide guidelines for teachers on speaking out as private citizens on matters of public concern. Kudos to Judicial Watch

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Judicial Watch Files Civil Rights Lawsuit for High School Teacher Fired for Facebook Posts Criticizing Chicago Riots, Looting, and Violence in the Aftermath of George Floyd Killing
Press Release


Judicial Watch announced today that it has filed a federal civil rights lawsuit on behalf of Palatine, Illinois tenured high school teacher Jeanne Hedgepeth, who was fired by the suburban-Chicago school district where she had worked for 20 years after posting comments on Facebook criticizing the riots, violence, and shootings in Chicago in the aftermath of the May 25, 2020, killing of George Floyd. Hedgepeth made the posts on her personal Facebook page while vacationing after the end of the school year, just as some of the most severe violence was occurring. In her posts, Hedgepeth recommended studying Thomas Sowell, whom she described as a “treasure” and a “truth seeker,” and praised political commentator and activist Candice Owens and talk show host Larry Elder. She alleges that the firing violated her First Amendment rights.

The lawsuit, filed in the U.S. District Court for the Northern District of Illinois, seeks damages from the school district, Township High School District 211, and district board members and officials who participated directly in the firing (Hedgepeth v. Britton et al. (Case No. 1:21-cv-03890)).

The lawsuit explains:

In late May and early June 2020, Hedgepeth was vacationing in Florida after the end of the 2019-20 school year when violent street protests, rioting, looting, and shootings erupted in Chicago and many other U.S. cities in the aftermath of the killing of George Floyd on May 25, 2020 by Minneapolis police officers. In Chicago alone, 82 persons were shot, 19 fatally, over the May 30-31, 2020 weekend. On May 31, 2020, which the Chicago SunTimes described as the most violent day Chicago had seen in 60 years, Mayor Lori Lightfoot asked Governor J.B. Pritzker to deploy the Illinois National Guard in the city.

That same day, May 31, 2020, Hedgepeth posted the following photos of herself on the beach in Florida along with the comment, “I don’t want to go home tomorrow. Now that the civil war has begun I want to move.”

An individual responded, “Follow your gut! Move!!!!!!!!!” Hedgepeth answered, “I need a gun and training.” The individual replied, “me too!”

Another individual posted a meme that same day suggesting that the riots could be stopped with a septic tank truck and a pressure cannon. Hedgepeth reposted the meme, obviously in jest, adding, “You think this would work?”

On or about June 1, 2020, Hedgepeth posted the following comment on Facebook in the course of an exchange of posts begun the previous day with a third individual:

I am about facts, truth seeking and love. I will speak on any topic I choose because I live in a free country. I find the term “white privilege” as racist as the “N” word. You have not walked in my shoes either so do not make assumptions about me and my so called privilege. You think America is racist? Then you have been hoodwinked by the white liberal establishment and race baiters like Jesse Jackson and Al Sharpton. Travel the world and go see that every nation has racism and some more than others but few make efforts such as we do to mitigate or eliminate it. I have lived and seen. The people I am informed by about the black experience in America are actually some of the smartest people in America. And it so happens they are black. I highly recommend studying Thomas Sowell, who is now retired and in his 80’s. A treasure. A truth seeker. [D]oes REAL research and analysis. Candice Owens is one of the smartest and most courageous women in America and Larry Elders speaks the truth with a great sense of humor and FACTS not feelings. They are who I listen to when it comes to facts about the black experience in America. Don’t you think there is a deeper problem than racism when 50% of murders in America are committed by 13% of the population? Do you think there might be a subtle genocide of black babies when most planned parenthoods are put in poor neighborhoods and that 30% of abortions are black babies. [B]lack women only make up 7% of the U.S. population. The greatest power you have is what you believe about yourself. [W]hat have Democrats, mainstream media and intellectuals in ivory towers been telling the black community to believe about themselves for forty years? Wake up and stop believing them, then things will change.

All of Hedgepeth’s posts were on her personal Facebook page. None of Hedgepeth’s posts identified her as a teacher or a District 211 employee, nor did Hedgepeth post them in her capacity as a teacher or a District 211 employee. None of the persons with whom Hedgepeth exchanged Facebook posts were current District 211 or Palatine High School teachers, staff, or students.

Upon returning from her vacation in early June 2020, Hedgepeth learned that the school district was investigating her for her Facebook posts. She was fired by the school board six weeks later, on July 16, 2020, by a vote of 5-2. In her defense, Hedgepeth noted that the posts were on her personal Facebook page and were made “out of school.” She also expressly invoked her First Amendment rights.

“The school district took what could have been a teachable moment about respecting diversity of viewpoints and turned it into a clear civil rights violation,” said Judicial Watch President Tom Fitton. “Jeanne Hedgepeth had every right to express herself freely and openly on her personal Facebook page, outside of school, about matters of undeniable public concern. Firing her for opposing lawlessness, speaking out about gun rights, praising black conservatives, and criticizing Democrats and tenets of Critical Racial Theory violated the First Amendment, and the school district and district officials who did so will be held accountable.”

Judicial Watch is being assisted by attorney Christine Svenson of Palatine, Illinois.

See also:

Ex-Palatine H.S. teacher fired for anti-riot, anti-BLM Facebook posts files First Amendment suit vs District 211, school board members

By Jonathan Bilyk, July 21, 2021

A former Palatine High School teacher who was fired in the summer of 2020 over her Facebook posts critical of riots and looting that erupted in Chicago amid protests led by the Black Lives Matter movement, has sued the Palatine school district that formerly employed her, saying the district trampled on her First Amendment speech rights.

Named defendants include Township High School District 211, and individual defendants including those sitting on the District 211 school board in July 2020 and the district’s superintendent and human resources director.

The suit comes as Hedgepeth also continues to pursue a separate defamation lawsuit in Cook County court against current District 211 board member and Black Lives Matter activist Tim McGowan.

Both cases center around Hedgepeth’s termination in July 2020 from the teaching job she had held at Palatine High School for 20 years.

According to the new federal complaint, Hedgepeth was vacationing in Florida in late May 2020 when rioters and looters inflicted hundreds of millions of dollars in damage on Chicago’s central business district and other major corridors in the city. The riots broke out amid widespread protests against racism, triggered by the death of George Floyd at the hands of police in Minneapolis earlier that month.

According to the complaint, Hedgepeth then posted photos, memes and other comments critical of the looting and rioting.

For instance, she posted photos of herself on a beach in Florida, captioned: “I don’t want to go home tomorrow. Now that the civil war has begun I want to move.”

She also reposted a meme, created by someone else, saying authorities seeking to stop rioters should “mobilize the septic trucks, put a pressure cannon on em… hose em down… the end.” Hedgepeth added the comment: “You think this would work?”

In June, Hedgepeth added more in-depth comments on Facebook, as part of a discussion.

Those said, in part:

“I find the term ‘white privilege’ as racist as the ‘N’ word. You have not walked in my shoes either so do not make assumptions about me and my so-called privilege. You think America is racist? Then you have been hoodwinked by the white liberal establishment and race-baiters like Jesse Jackson and Al Sharpton. Travel the world and go see that every nation has racism and some more than others but few make efforts such as we do to mitigate or eliminate it.”

She added: “Don’t you think there is a deeper problem than racism when 50% of murders in America are committed by 13% of the population? Do you think there might be a subtle genocide of black babies when most planned parenthoods are put in poor neighborhoods and that 30% of abortions are black babies. [B]lack women only make up 7% of the U.S. population. The greatest power you have is what you believe about yourself. [W]hat have Democrats, mainstream media and intellectuals in ivory towers been telling the black community to believe about themselves for forty years? Wake up and stop believing them, then things will change.”

The complaint noted all of Hedgepeth’s comments were on her personal Facebook page, and she did not identify herself as a teacher or employee of Palatine High School District 211. Further, none of the people she engaged with in those posts were District 211 students or employees.

However, the complaint said Hedgepeth was immediately placed under investigation by the school district, and was fired by the school board about one month later, with the school board citing her Facebook posts as justification.

In her defamation lawsuit against McGowan, Hedgepeth accused McGowan of falsely smearing her as a racist, and then orchestrating a campaign against her that resulted in her termination. McGowan had organized “anti-racism” protests in Palatine in the summer of 2020 under the banner of BLM.

He posted a video to Facebook in which he laid out accusations of racism against Hedgepeth.

McGowan was elected to the District 211 school board in November 2020, thanks to support from the District 211 teachers union.

A Cook County judge refused McGowan’s attempt to dismiss Hedgepeth’s lawsuit, and the case remains pending.

In her federal lawsuit against the District 211 board, Hedgepeth asserts the board’s decision to fire her over personal Facebook posts amounts to a violation of her First Amendment free speech rights.

Hedgepeth’s “protected speech was a substantial or motivating factor in (District 211’s) decision to terminate Plaintiff’s employment, and, but for Plaintiff’s protected speech, Defendants would not have terminated Plaintiff’s employment,” Hedgepeth’s lawsuit asserts.

The lawsuit seeks unspecified compensatory damages from District 2011 and punitive damages against District 211 human resources director James A. Britton; District 211 school board members Kimberly Cavill, Anna Klimkowicz, Robert J. Lefevre Jr., Edward M. Yung and Steven Rosenblum; and District 211 Superintendent Lisa A. Small.

Hedgepeth is represented in the federal action by attorneys Paul J. Orfanedes, of Judicial Watch, of Washington, D.C., and Christine Svenson, of Svenson Law Offices, of Palatine.

She is represented in the Cook County defamation case by attorney Joel F. Handler, of the Handler Law Group, of Chicago.

Monday, July 5, 2021

Religion and Politics: An Unmarried Teacher at a New Jersey School Is Fired, Then Sues

Victoria Crisitello

The big picture here is, separation of church and state, religion and politics:

where do you draw the line?

Victoria Crisitello, an art teacher at a Catholic school in New Jersey, became pregnant but was not married. The principal, a Roman Catholic nun, told her she was being fired because she was "pregnant and unmarried".

Rita Schwartz, president of the National Association of Catholic School Teachers, is quoted as saying,

 "“The church is supposed to hate the sin, but not hate the sinner,” Ms. Schwartz said. “They should be very happy that she’s not having an abortion. Don’t you think?”

“It should have been handled with love,” she added. “The whole thing in our religion is not fear. It’s not firing. It’s love. She needs help here. She needs people to work with her, and that’s what they’re supposed to be doing — not ‘Off with her head.’”


Here is Ms. Crisitello's Petition to the N.J. Supreme Court

Betsy Combier

betsy.combier@gmail.com

Editor, ADVOCATZ.com
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Editor, Parentadvocates.org
Editor, New York Court Corruption
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Editor, Inside 3020-a Teacher Trials


An Unmarried Catholic Schoolteacher Got Pregnant. She Was Fired.

A lawsuit that she filed in New Jersey is testing the First Amendment limits of religious freedom.

NY TIMES, June 28, 2021

When a Catholic school art teacher was asked to take on extra responsibilities, she requested a raise, explaining that she was about to have a baby.

Weeks later, she was fired from her New Jersey elementary school. The principal, a Roman Catholic nun, told her she was being terminated “because she was pregnant and unmarried,” court records show.

The woman sued. Her daughter is now 7, but the lawsuit remains in limbo, caught in a yearslong back-and-forth between New Jersey’s trial and appellate courts.

An appeals court has twice sided with the ex-teacher, Victoria Crisitello. But last month, the state’s highest court, acting on an appeal by the school, agreed to hear the case, signaling a willingness to wade into the highly charged debate over the relationship between the government and religion.


Its decision comes less than a year after the United States Supreme Court upheld the rights of church-run schools to terminate lay teachers, one of a string of recent decisions by a court far more likely to rule in favor of religious rights than not.

The archdiocese that oversees the New Jersey school, St. Theresa in Kenilworth, has framed its legal argument as a must-win fight for the “fundamental freedom of religion.”

“Sex out of wedlock violates a fundamental Catholic belief that the school in this instance felt it could not overlook,” lawyers for St. Theresa’s wrote in a petition to the state Supreme Court.

Ms. Crisitello’s lawyer, Thomas A. McKinney, says the case is as much about gender discrimination and sexual double standards as it is about First Amendment rights.

The principal acknowledged in depositions that she made no effort to determine if other staff members, including men, were engaged in extramarital sex, court records show.


Because the school’s only proof of a violation of its morals code was the pregnancy itself, “only a woman could be punished, not a man,” Mr. McKinney said.

“If you’re going to punish someone for doing something,” he said, “it has to be applied equally and evenly.”

Ms. Crisitello, who attended St. Theresa School as a child, was fired in 2014 and no longer works as a teacher. Her daughter was later baptized in the Catholic church that runs the prekindergarten-to eighth-grade school.

Ms. Crisitello, through her lawyer, declined to comment. School officials did not return a call for comment.

“I don’t think she expected any of this,” Mr. McKinney said. “I don’t look at this as an attack on the Catholic Church.”

Last July, the Supreme Court ruled that federal employment discrimination laws do not apply to teachers at church-run schools whose duties include religious instruction. In doing so, it expanded the scope of employees deemed outside the reach of employment discrimination protections — known as the “ministerial exception” to workplace bias laws.

It is no longer only trained or ordained ministers and religious leaders who may be excluded from work bias protections; the federal court ruled that lay employees involved in promoting church doctrine were also exempt from federal employment discrimination laws.


The broadened definition could arguably be applied to nearly any employee of a religious school, significantly altering job protections, even in a state like New Jersey, where workers have traditionally enjoyed strong legal safeguards, said Stacy Hawkins, a Rutgers Law School professor who teaches employment law.


Ms. Crisitello’s lawsuit was twice tossed out by trial court judges, only to be restored each time on appeal.

Her lawyer, seeking to differentiate the case from the Supreme Court decision that expanded the ministerial exception — Our Lady of Guadalupe School v. Morrissey-Berru — stressed that Ms. Crisitello taught art, not religion. She was first hired as an aide in a preschool classroom, he said, and had never taught religion.

New Jersey’s appellate court, citing legal precedent, found there was evidence the school had not attempted to enforce its morals code equally, invoking in its ruling characters from Nathaniel Hawthorne’s “The Scarlet Letter.”

“While a religious school employer may validly seek to impose moral doctrine upon its teaching staff, punishment singularly directed at the Hester Prynnes, without regard to the Arthur Dimmesdales, is not permissible,” the judges quoted.

The appellate judges published the opinion, making it the guiding legal standard in New Jersey unless overturned. That has increased the urgency of the case for the Archdiocese of Newark.


“This case affects the fundamental freedom of religion not only for the Catholic Church and its institutions, but also for the operations of other religious organizations,” a spokeswoman for the archdiocese, Maria Margiotta, said in a statement. “Potentially, all religious organizations, including all Catholic schools in the archdiocese, are impacted.”

The school also brought on an additional lawyer, Peter G. Verniero, a former state attorney general and state Supreme Court judge.

Mr. Verniero said the school’s successful request for intervention by the state Supreme Court spoke for itself and declined additional comment.

The school argued in its petition to the court that the Guadalupe decision covered employees like Ms. Crisitello. It also said that a male teacher at another school in the archdiocese was discharged after his unmarried girlfriend became pregnant, undercutting the claim that only women could be punished.


“Religious institutions of many faiths in this state are now at risk of being swept into the vortex of employment litigation, contrary to the constitutional vision regarding the separation of church and state,” the petition states.

The court has not set a date for oral arguments in the case, which is being watched closely by experts in workplace bias law and a national Catholic schoolteacher union.


Depending on the outcome, it could attract the attention of the United States Supreme Court, lawyers said.

Professor Hawkins said she believed that would be unlikely unless more than one state veered from the legal standard established in Guadalupe. “I think the court will likely wait to see if there is any broader concern that lower courts are not adhering to its decision before it will revisit the issue,” she said.

It is not the first time a teacher at a church-run school was penalized for personal decisions.

An unwed teacher was fired in 2018 from a Catholic school in Pennsylvania after becoming pregnant. In 2016, a female basketball coach who was also a dean at Paramus Catholic High School in Bergen County, N.J., was terminated after marrying another woman. (The Archdiocese of Newark later reportedly settled the woman’s lawsuit out of court.)

Catholic schools, already coping with declining enrollments, often face complaints from parents concerned about flagrant deviations from church moral teachings by teachers, creating a tension that can be difficult for tuition-reliant private schools to navigate, said Mary Kay Rossi, president of the Catholic Teachers Union of South Jersey.

Still, she said her union has handled at least two similar cases involving pregnancies, both of which were resolved without termination.

Rita Schwartz, president of the National Association of Catholic School Teachers, which represents about 3,000 parochial school employees nationwide, bristled at the decisions made by a church still caught in the throes of a sex abuse scandal involving priests.

“The church is supposed to hate the sin, but not hate the sinner,” Ms. Schwartz said. “They should be very happy that she’s not having an abortion. Don’t you think?”


“It should have been handled with love,” she added. “The whole thing in our religion is not fear. It’s not firing. It’s love. She needs help here. She needs people to work with her, and that’s what they’re supposed to be doing — not ‘Off with her head.’”


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