Private Education Matters: November 2023 by lcwlegal

November 2023

Private Education Matters

Table Of Contents EMPLOYEES

Leaves Of Absence

Did You Know?

Discrimination

Business & Facilities

Construction Corner

LCW Best Practices Timeline

Consortium Call Of The Month

Contributors: Grace Chan Partner | San Francisco Hannah Dodge Associate | San Francisco

Brett A. Overby Associate | San Diego

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Private Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Private Education Matters should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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Court Upholds School’s Termination Of Long-Time Teacher Following Indefinite Medical Leave. Nancy Der Sarkisian was an English teacher at Austin Preparatory School, a private Catholic independent school in Reading, Massachusetts, for twenty-four years. In September 2019, Der Sarkisian underwent hip surgery and told the School she would be out for approximately four weeks. The School granted her request for leave and hired a substitute teacher to cover her classes. Der Sarkisian intended to return to School in October 2019, but she then required a second surgery and so she informed the School she would need leave for the entire first semester. The School requested that Der Sarkisian’s doctor provide an updated Family Medical Leave Act (FMLA) Certification because the leave was going to be longer than initially represented. In the certification, Der Sarkisian’s doctor opined that Der Sarkisian would likely require 2-3 months to recover, and would not be able to return until January 5, 2020. The School gave Der Sarkisian information about the School’s long-term disability program at this time. In November 2019, Der Sarkisian completed the long-term disability program application and notified the School that she required a third surgery and was unsure when she could return to school. Der Sarkisian told the School she required intravenous injections of antibiotics at home until at least February 7, 2020. Shortly thereafter, Der Sarkisian told the School she would need additional time to rehabilitate following her three surgeries. At this point, Der Sarkisian had exhausted her available FMLA and sick leave, so the School asked her to have her doctor complete an accommodation form so the School could determine whether there was a reasonable accommodation that would allow Der Sarkisian to perform the essential functions of her job. Der Sarkisian’s doctor indicated that her impairment would last three to six months, it affected a number of her major life activities, and she would have difficulty performing all of her job functions. Der Sarkisian’s doctor did not suggest

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Leaves of Absence

employees any accommodations aside from total temporary disability. After reviewing the accommodation form on December 26, 2019, the School terminated Der Sarkisian’s employment, stating that they had a growing need to fill her position and could not provide an extended and continuing leave of absence with no set end date. Der Sarkisian sued the School for discrimination under the Americans with Disabilities Act (ADA) and related Massachusetts law. The trial court granted the School’s motion for summary judgment, holding that regular attendance was an essential function of Der Sarkisian’s role when she was terminated. The trial court concluded that Der Sarkisian had not satisfied her burden to demonstrate that a reasonable accommodation existed that would have allowed her to perform this essential function, and therefore she could not make out a disability discrimination case. Der Sarkisian appealed. To establish a claim for disability discrimination, Der Sarkisian must show that (1) she was disabled within the meaning of the ADA; (2) she was a “qualified individual;” and (3) she was discharged because of her disability. The Court of Appeals concluded that Der Sarkisian’s claim failed at step one because she did not demonstrate that she was a qualified individual. While Der Sarkisian held the skills and qualifications to teach at the School, the Court of Appeals agreed with the trial court that in-person attendance was an essential function of her job. The Court of Appeals determined that a further extension of her leave of absence would not have allowed her to perform her essential functions. The Court of Appeals also agreed with the trial court that Der Sarkisian did not carry her burden to demonstrate that her request for a further leave of absence was facially reasonable. Der Sarkisian argued that the School’s former policy of offering 110 sick days and a year-long unpaid leave of absence demonstrated that her request was reasonable. The Court of Appeals disagreed. The School deliberately removed those policies from their handbook before the school year at issue, and instead offered a disability insurance policy, from which Der Sarkisian received benefits.

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On appeal, Der Sarkisian also argued that she would have taken an unpaid leave of absence and the School could have had other faculty members cover her classes pending her return. The Court of Appeals said that the School did not have to lower its employment standards or reallocate essential functions of Der Sarkisian’s job to make other faculty jobs more onerous in order to accommodate Der Sarkisian. Moreover, these accommodations would not have satisfied the School’s need for instruction of Der Sarkisian’s five classes and the need to give students continuity throughout the school year. The Court of Appeals upheld the trial court’s decision and granted summary judgment for the School. Der Sarkisian v. Austin Preparatory Sch. (1st Cir. Nov. 7, 2023) 2023 U.S. App. LEXIS 29679. Note: LCW reported on this case in February. This case shows that a school may not need to provide an indefinite leave of absence for employees if schools maintain appropriate documentation and justification as to why the leave would be unreasonable.

Court Grants Teacher Attorneys’ Fees Only For Successful FMLA Claims. Ronald Dantowitz was hired as an astronomy teacher and director of an observatory at Dexter Southfield Academy, a private school in Brookline, Massachusetts. As the observatory director, Dantowitz was responsible for keeping the School’s telescope in working order. Dantowitz’s son was born in 2010 and has been severely autistic since birth. In 2014, Dantowitz himself was diagnosed with a mild condition of autism spectrum disorder. Dantowitz disclosed his diagnosis to his supervisor and other administrators at the School. In August 2018, Dantowitz requested a leave of absence to care for his son. The School’s administrators directed Dantowitz to the School’s leave policy, rather than leave under the FMLA. Dantowitz conferred with his attorneys, who helped arrange for Dantowitz to take leave under the FMLA.

In December 2018, Dantowitz returned to School. During the following two months, Dantowitz’s performance was closely evaluated and he received poor performance reviews. One criticism was that Dantowitz had only notified the School in June 2018, shortly before requesting leave, that the telescope required serious repairs. In January 2019, Dantowitz was terminated. Dantowitz filed suit against the School claiming five claims of disability discrimination under Massachusetts law and two claims under the FMLA. The School offered to settle the case for $300,000, which Dantowitz rejected. At the time, Dantowitz had already incurred approximately $150,000 in attorneys’ fees. The case went to trial and the jury ruled in favor of the School on the Massachusetts disability discrimination claims and in favor of Dantowitz on the FMLA claims. The jury awarded Dantowitz $15,000 in damages, specifically for back pay. The jury awarded Dantowitz zero dollars for front pay, emotional distress, and compensatory losses. Dantowitz asked the Court to alter the judgment amount, seeking liquidated damages and $1.5 million in front pay. The Court awarded $15,000 in liquidated damages based upon the Court’s finding that the School failed to prove that they acted in good faith and had reasonable grounds to believe its actions were not a violation of the FMLA. Dantowitz filed a petition seeking over $352,000 in attorneys’ fees and over $20,000 in costs. The Court granted Dantowitz’s petition for attorneys’ fees for his successful FMLA claims. The FMLA allows reasonable attorneys’ fees to be awarded in addition to any judgment. The Court determined a reasonable amount of attorneys’ fees based on the number of hours reasonably spent on the litigation, multiplied by a reasonable hourly rate. The Court then reduced the amount of fees based on the relative amount of time the attorneys spent on the disability discrimination claims rather than the FMLA claims. Since the disability discrimination claims were not successful, Dantowitz could not recover attorneys’ fees for that time. The Court also considered the amount of the settlement offer that Dantowitz rejected to gauge the benchmark results obtained at trial. In this case, the results at trial were significantly lower than the settlement offer Dantowitz rejected.

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while in pending status, but warned that if the medical certification was not submitted, he would not be covered.

Dantowitz v. Dexter Southfield, Inc., Mot. for Attorney Fees (D. Mass. Nov. 2, 2023), 1:20-CV-10540.

Although Mohamed began his leave in late September, he waited over a month to fly to Italy. Mohamed claimed he used that time in America to provide “emotional support” to his father and obtain an affordable airline ticket.

Note: This case serves as a reminder that employees may recover attorneys’ fees for successful FMLA related claims, and illustrates that, even when schools are largely successful on their claims, attorneys’ fees can still create a significant cost. Here, the employee was only granted $15,000 in damages, and yet, the school had to pay over $150,000 in attorneys’ fees.

University’s Decision To Terminate Librarian After Failure To Submit FMLA Certification Upheld. Abdulkadir Mohamed worked in George Washington University’s main library for nearly three decades. In 2019, Mohamed reached out to the University about taking leave under the FMLA to attend to his father in Italy. The University told Mohamed he could apply for leave through a contractor, Lincoln Financial, and warned Mohamed that he would need to send Lincoln a medical certification form by a certain deadline to qualify for the leave. Mohamed applied to Lincoln, seeking time off from September 24 to November 29. Lincoln acknowledged Mohamed’s request and told him that its response was “not an approval,” and that he would need to provide a completed medical certification within 15 days after his scheduled leave start date. Lincoln also cautioned that failure to provide the certification may result in delay of his leave request and that time taken may count against him in accordance with the University’s attendance policy. On September 20, the University emailed Mohamed to tell him that his FMLA request was still pending, per his submission of the medical certification to Lincoln. Mohamed was authorized to begin his leave

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The Court ultimately awarded Dantowitz $162,450.91 in attorneys’ fees. This amounted to 40% of the amount Dantowitz requested, which the Court described as extremely generous. The Court considered that two out of seven of Dantowitz’s claims were successful, that the FMLA claims took less than one third of the time and effort as the disability claims, that Dantowitz recovered only 1 percent of the requested jury award and 14 percent of the settlement amount he rejected, and that Dantowitz failed to receive any compensation for his front pay bids.

Mohamed seemed to understand, replying that the information was very helpful, that he was going to commence his FMLA leave while it was still pending, and would send the certification directly to Lincoln in a timely fashion. Mohamed asked Lincoln to extend the 15-day certification deadline twice; Lincoln denied both of those requests.

Having not submitted the medical certification, on October 9, Lincoln denied Mohamed’s FMLA application. The University called and emailed Mohamed repeatedly, notifying him his leave had been denied and he needed to contact Human Resources. The University checked to make sure that Mohamed had not been in touch with Lincoln either, and Lincoln confirmed that it had heard nothing from Mohamed. In early November, the University fired Mohamed. Mohamed sued under the FMLA, claiming interference with his FMLA rights. For an FMLA interference claim, Mohamed must show (1) employer conduct that tends to interfere with, restrain, or deny the exercise of FMLA rights; and (2) prejudice arising from the interference. The Court determined that the University did nothing to interfere with Mohamed’s ability to take FMLA leave. Mohamed argued that the University approved him for leave, told him to communicate solely with Lincoln about the leave, and then fired him for abandoning his job, even though the University knew he had not abandoned his job. The Court did not find Mohamed’s arguments persuasive. The University never told Mohamed he was fully approved for leave and warned him about his conditional status pending submission of the certification. The Court noted that the University was permitted to require a medical certification and impose a 15-day deadline for submitting the appropriate documentation under the FMLA.

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While employers can relax the 15-day deadline where practicable, here, Mohamed was not making a diligent, good faith effort to comply with the requirement. Mohamed did not provide the FMLA certification forms to his father’s healthcare providers until November 6, more than three weeks after it was due, which the Court said was not diligent. Mohamed said he had difficulty getting the certification completed because he needed his father’s consent and the doctor was located overseas. The Court stated that the University was not able to provide leniency in this situation because Mohamed was non-responsive to their calls and emails. The Court granted summary judgment in favor of the University. Mohamed v. George Wash. Univ. (D.D.C. Sep. 22, 2023) 2023 U.S.Dist.LEXIS 169745. Note: While this case is a straightforward application of the FMLA process, it is noteworthy due to the diligence the University took to work with the employee and adhere to its obligations under the FMLA. The University attempted to contact the employee several times, worked with the contractor, and followed-up in writing about the steps the employee needed to take to obtain approval for his leave.

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discrimination

Recently, the Department of Education’s Office for Civil Rights and the Department of Health and Human Services’ Office for Civil Rights have completed a series of investigations that are relevant for independent schools. While these investigations only apply to schools receiving federal funding, they provide helpful guidance for schools to consider. Taft College Taft College entered into a resolution with the U.S. Department of Education’s Office of Civil Rights (OCR) based on allegations that the college did not comply with its Title IX obligations in responding to harassment based on sex, including sex stereotyping. In particular, OCR found that the College failed to respond to repeated allegations from one of its students, who is transgender, after the College’s employees harassed the student based on sex for more than a year. The allegations included that a professor told the student, in front of her whole class, that based on her physical appearance, that professor did not consider the student “feminine enough,” and that on another occasion, an administrator of the student’s program knowingly excluded the student when addressing other female students as “ladies” during class. The student also alleged that she asked the Director of the program to include pronoun options other than “he” and “she” on its intake forms, and the Director refused, stating that plural pronouns were invalid and not commonly used except for members of the LGBTQ community. The student provided details of more than a dozen specific incidents during which seven different College staff and faculty members referred to the student by her previous male name and/or with male pronouns. The allegations also included that another transgender student requested that staff address the student with plural pronouns, and the professor responded by throwing up his hands and stating he was “too old to deal with the request.”

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Office Of Civil Rights Investigations.

OCR’s investigation reflected that the College received repeated notice that the student was experiencing almost daily harassment, including through faculty misgendering the student on an almost daily basis, but the College did not respond to these allegations to confirm whether they were occurring or to redress the harm the student reported experiencing. As a result, OCR concluded that the College subjected the student to a hostile environment based on the student’s sex, and that the environment negatively impacted the student’s education. The College committed to take steps to ensure nondiscrimination on the basis of sex, and resolved to take the following actions: • Offering to reimburse the student for counseling to address the effects of the sex-based harassment during the student’s enrollment. • Reviewing and revising, as necessary, its policies and procedures to clarify that harassment based on sex includes harassment based on sex stereotyping. • Training its employees who respond to sex-based harassment about the College’s obligations under Title IX. • Providing documentation to OCR demonstrating that the College’s responses to complaints of sex-based harassment during the 2022-2023 and 2023-2024 academic years complied with Title IX. The letter to Taft College can be found here, and the resolution agreement can be found here. Arcadia University The U.S. Department of Education OCR resolved a sexual harassment investigation at Arcadia University in Pennsylvania. OCR determined the University violated Title IX when it failed to investigate possible sexual harassment by a University professor despite the University repeatedly receiving reports over several years from students and faculty that the professor harassed students.

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OCR determined that when the University finally initiated an investigation into the allegations in 2021, the University stopped the investigation once the professor resigned, violating the University’s Title IX obligations to determine whether sex discrimination occurred and to redress any hostile environment students may have suffered. OCR’s investigation established that several students and faculty reported to the University from 2018 to 2021 that the professor repeatedly engaged in sexual harassment of female students. The conduct ranged from inappropriate comments about body parts and inappropriate comments about the professor’s wife’s dresses. One student reported that the professor touched her elbow and she recoiled. The professor asked the student not to report him for sexual harassment and stated he would call on a male student to avoid accusations. The various conduct was reported to the former chief of human resources and a dean. OCR also found evidence that showed students reported the professor’s sexually harassing conduct in the professor’s course evaluations from 2019 onward. For example, one student stated that the professor made many sexually inappropriate comments on a regular basis, which made students uncomfortable. Another student wrote that there were many strange comments of a sexual nature during class. The former chief of human resources mistakenly believed she could not pursue an investigation because the professor was tenured, and that the conduct alleged did not state a Title IX claim because no allegation was made of inappropriate touching. OCR obtained evidence showing that the former chief of human resources believed that the professor retaliated against the students who first reported his conduct by accusing the students of cheating, but that the University did not address these concerns. The resolution agreement required the University to take the following steps: • Assign a third party to complete its investigation of the formal complaint against the professor and, if the conduct alleged is substantiated, and created a hostile environment on the basis of sex, offer individual remedies to the individuals who filed the formal complaint. • Conduct a comprehensive investigation of the professor’s actions for a period of four years to determine whether his actions created a hostile

environment on the basis of sex for other students, and if so, offer appropriate remedies. • Conduct a review of all Title IX complaints of student- and staff-involved sexual harassment for a period of three years, to ensure that each complaint was resolved in compliance with Title IX, and if not, provide appropriate remedies. • Provide to OCR documentation of Title IX case file reviews for a period of two years. • Conduct a climate survey with students, and provide OCR a summary of the survey results and the University’s proposed corrective actions in response to the survey results for OCR approval. And, • Revise the University’s Title IX Policy and Procedures, provide Title IX training to University faculty and staff, and post its Title IX training materials on its website. The resolution letter can be found here, and resolution agreement can be found here. North End Rehabilitation & Healthcare Center North End Rehabilitation & Healthcare Center (North End) is a skilled nursing facility in Boston, MA that offers a variety of clinical services, including rehab, chronic kidney disease management, a ventilator program, longterm care, and respite care. The Department of Health and Human Services’ Office for Civil Rights conducted an investigation after receiving information that North End was violating the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act by denying admission to individuals because they were taking Suboxone or Methadone to treat their Opioid Use Disorder (OUD). OCR found that these individuals were taking prescription medication to treat OUD and were otherwise eligible for admission to North End. OCR stated that individuals receiving medications to treat their OUD are protected under federal civil rights laws such as the Affordable Care Act and Section 504 of the Rehabilitation Act. North End’s practice of declining admission to individuals with OUD, without an individualized assessment, screened out individuals with disabilities and denied them the opportunity to participate or benefit from services based on their disability.

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• Revise its admissions policy; • Provide training to admissions personnel on federal civil rights laws and opioid use disorder; • Update customer service intake scripts with revised language to include whether the individual with a disability is qualified for the services provided at North End with a reasonable accommodation; and • Before denying admission based on safety criteria, North End will conduct an individualized assessment, that relies on current medical knowledge or on best available evidence, to determine whether the individual poses a direct threat to the health and safety of others that cannot be reduced by reasonable modifications to its policies, practices, or procedures. A copy of the Voluntary Resolution Agreement may be found here.

Colorado Cannot Stop Christian School From Participating In Universal Preschool Program Over Religious Policies. In 2020, Colorado voters approved proposition EE, establishing a dedicated source of funding for statewide preschool. Under the program, eligible preschool providers receive tuition reimbursement from the state for certain students. Eligible preschool providers must at minimum, provide children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability. Providers must sign a Program Service Agreement, which requires, among other things, that preschools do not discriminate on protected classifications. The Agreement also requires providers to strictly comply with all applicable federal and state laws, rules, and regulations. Darren Patterson Christian Academy is a private, Christian school. In accordance with its Christian focus, the School only hires employees who share its faith—all employees must be “born-again Christian” and adhere to certain lifestyle requirements, including

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North End voluntarily agreed to settle the matter and agreed to take the following actions:

abstinence from sexual activity outside of the context of marriage between a man and a woman. The School also believes that there are two immutable sexes, male and female, and aligns its policies accordingly, including mandating separated bathrooms and dress codes based on boys’ and girls’ biological differences. The School also forbids using pronouns that do not correspond to a student’s or employee’s biological sex. In January 2023, the School agreed to participate in the universal preschool program and signed the Program Service Agreement. The Department approved the School to participate. In May, the School sought an exemption from the Executive Director of the Department, stating that the non-discrimination clause violated its religious beliefs, including its policies on bathroom and locker room usage, pronoun usage, and dress codes. The School also expressed concerns that they may be prohibited from hiring co-religionists. The Executive Director said she lacked authority to create exemptions for faith-based providers and that the nondiscrimination clause is mandated in state statute, but noted that providers could reserve seats for congregants. After receiving this response, the School sued two state executives charged with overseeing the universal preschool program, bringing claims under the First Amendment’s religion clauses, the freedom of association clause, and the free speech clause. The School also filed a motion for a preliminary injunction to allow it to continue participating in the program while abiding by its internal policies regarding hiring and student conduct. To succeed on a preliminary injunction, the moving party must show: (1) that they are substantially likely to succeed on the merits of their claim; (2) that they will suffer irreparable injury if the court denies the injunction; (3) that the “threatened injury” without the injunction outweighs the opposing party’s injury under the injunction; and (4) the injunction is not adverse to the public interest. The School argued that the program's nondiscrimination rules violates its constitutional rights to hire ministers who share its faith and co-religionists, and otherwise violates its First Amendment religious and speech rights to enact policies driven by its faith, including its policies regarding bathroom usage, dress codes, and pronoun usage.

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Under the first prong, the Court found that the School showed a likelihood of success on the merits. The Court found that the Department’s nondiscrimination policy likely violated the School’s rights by interfering with the School’s selection of key employees in accordance with its religious convictions under the ministerial exception, which protects churches and other religious institutions to decide matters of faith without government intrusion. Here, the teachers are likely considered ministers and subject to the ministerial exception, because the teachers are committed to mentoring and disciplining students in the Christian faith. Furthermore, the teachers are expected to integrate Biblical principles into their curriculum and co-curriculum. The School explicitly bases its hiring decisions on religious criteria and the Court determined that the School could not abandon those criteria without abandoning their religious beliefs. The Court also found that the School likely had a plausible freedom of association claim—the School has the freedom to not associate with those who would compromise their expression of beliefs. The Court found that the non-discrimination hiring policy would require the School to hire those who disagree with its religious expression and evangelistic mission. The Court found that the Department’s rules forced the School to choose between adhering to religious beliefs and risk exclusion from the program or complying with the Department’s rules and abandon their beliefs. The School sought to hire co-religionists and to continue internal policies related to gender distinctions, as rooted in their religious beliefs. These policies violate the Department’s non-discrimination standards, but at the same time, infringe on the School’s rights to participate in a government benefit program without disavowing its religious character.

Finally, the Court found that the Department allowed categorical exemptions from its admission policies for preschools operated by houses of worship that seek to reserve seats for members of the School’s congregation. The Court found that the statute explicitly allows the Department to grant exemptions from the nondiscrimination standards if doing so is necessary to ensure the availability of a preschool program in the community. Here, the Department provided exemptions to other programs, or expressed a willingness to do so, but denied an exemption for the School. In light of the Court’s findings in all of these positions, the State would need to show that their interests were of the highest, most compelling order and that the law was created in the most narrowly tailored way to pursue those interests. The Court found that the State did not meet this high burden and that the School would succeed on the merits of the claim. Under the second prong, the Court found that the School would suffer irreparable harm due to their loss of their First Amendment freedoms. Under the third and fourth prongs, the Court found that where a law is likely unconstitutional, the interests of the government do not outweigh the other party’s rights to have its constitutional rights protected. The Court granted the School’s preliminary injunction, meaning the state of Colorado cannot expel, punish, withhold funds from, or otherwise discipline the School under the universal pre-school program on the basis of the School’s policies. Darren Patterson Christian Acad. v. Roy (D.Colo. Oct. 20, 2023) 2023 U.S.Dist.LEXIS 198528. Note: This case provides an overview of the competing interests that can arise between state non-discrimination requirements and organizations’ religious tenets.

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Brian Walter

Jennifer Rosner

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November 2023

Congratulations to LCW Partners Brian Walter and Jennifer Rosner for being chosen as Los Angeles Business Journal’s Leaders of Influence: Labor & Employment Attorneys 2023!

business & Facilities University’s Hurtful Comments Towards Contractor Results In Intentional Infliction Of Emotional Distress Claim.

Yale argued that N.E.S.A.I.M. could not state a claim for intentional infliction of emotional distress, because as a corporate entity, it cannot experience distress. The Court agreed and concluded that a corporation cannot experience emotional distress, and therefore dismissed this claim.

N.E.S.A.I.M. is a minority owned company that provides snow and ice removal services. Todd Howell is a Black, African-American small business owner and owns N.E.S.A.I.M. Joseph Signore is the Supervisor of Landscaping and Maintenance Services at Yale.

Yale argued that Mr. Howell failed to show that (1) Yale intended to cause him emotional distress or knew or should have known that emotional distress was likely to result; and (2) that Yale’s actions constituted extreme or outrageous conduct.

In November 2019, N.E.S.A.I.M. and Howell entered into a contract with Yale to provide the University with snow and ice removal services. On November 29, 2019, Mr. Signore met with Mr. Howell and other N.E.S.A.I.M. personnel. During this meeting, Mr. Signore allegedly expressed distaste for Mr. Howell as a minority contractor. Mr. Signore also allegedly said, “[L]ike all other [B]lack minority contractors, N.E.S.A.I.M. would not have adequate or proper tools to do the contracted job, would not have sufficient employees, would use improperly or undocumented employees, and would add employee numbers to the balance sheets;” “[B]lack minority contractors, including the plaintiff N.E.S.A.I.M., performed horribly;” and that “he hates dealing with minority owned businesses.”

The Court rejected Yale’s argument and concluded that the affirmative and direct nature of Mr. Signore’s actions showed intent to cause Mr. Howell distress. If Mr. Howell had separately discovered Mr. Signore’s decision to terminate the contract was motivated by racial animus, then the Court’s conclusion may be different. However, here, Mr. Signore directed racially derogatory statements to a Black individual, and it would be rational to infer that such action would cause Mr. Howell distress. The Court also concluded that Mr. Howell alleged conduct that was sufficiently extreme and outrageous. The Court distinguished between situations where employment decisions were motivated by discriminatory intent and situations where employers directed discriminatory comments to individuals or articulated their racial motives. Here, Mr. Signore expressed negative racial stereotypes directly to Mr. Howell and Mr. Signore indicated directly to Mr. Howell that the contract repudiation was motivated by racial discrimination.

Following these remarks, Mr. Signore refused to honor the contract, despite N.E.S.A.I.M.’s extensive experience and completion of $60,000,000.00 in snow removal. The Court therefore denied Yale’s motion to dismiss Mr. N.E.S.A.I.M. and Mr. Howell filed suit against Yale, alleging intentional infliction of emotional distress, among Howell’s intentional infliction of emotional distress claim. other claims. In order to state a claim of intentional infliction of emotional distress, a plaintiff must allege that (1) the defendant intended to inflict emotional distress or knew or should have known that distress was likely to result; (2) the conduct was extreme and outrageous; (3) the conduct caused the plaintiff 's distress; and (4) the plaintiff 's emotional distress was severe.

Howell v. Yale Univ. (D.Conn. Sep. 26, 2023) 2023 U.S.Dist.LEXIS 171330. Note: This case serves as an important reminder that employees can create liability for schools based on the way they speak to nonemployees, including contractors.

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November 2023

construction corner LCW represents and advises private schools and colleges in various business, construction, and facilities matters, including all aspects of construction projects from contract drafting and negotiations to course of construction issues. Through this Construction Corner, LCW will be giving private schools and colleges monthly helpful tips on a variety of topics applicable to campus construction projects. LCW attorneys are available should you have any questions or need assistance with any construction projects no matter what phase you may be in currently.

Construction Projects – How Should Those Involved Work Together? By: Brett A. Overby When we think about the individuals involved in an on-campus construction project, architects and contractors are often the first people who come to mind. There are other individuals, however, who serve important roles in a school’s construction project. The way those involved work together can be critical to managing risk and promoting the success of the project. Traditionally, in any construction project, the role of the architect is to designs the project and the role of the contractor is to perform the work, deciding the means and methods for the construction. This division of duties is most prominent when the school first hires an architect to design the project and then later hires a contractor to execute the construction based on those plans. There is risk, however, with this project delivery system (traditionally called “Design-Bid-Build”) because of the Spearin Doctrine, a concept in construction law dating back to 1918 and arising from the United States Supreme Court’s decision in United States v. Spearin. Under the Spearin Doctrine, an owner (i.e., a school) impliedly warrants design specifications that it provides to a contractor, and the contractor (who is bound to build according to plans and specifications prepared by the owner), will not be responsible for the consequences of any defects in the plans and specifications. When constructability issues arise, the contractor blames the architect for errors and omissions in the plans and specifications. The contractor then requests change orders for additional compensation and more time on the construction schedule. The owner is then caught in the middle of an argument between the architect and the contractor where the architect claims it has prepared the plans and specifications within the standard of care versus the contractor who claims that the plans and specifications have errors and omissions. In light of this, a more integrated project delivery system is preferable in which the school brings on the contractor early under a preconstruction agreement. When the architect, contractor, and owner all work together as a team from the outset of the project, each party contributes and can collaborate to create a successful project. This structure may also help relieve the owner (i.e., the school) from some of the risk that arises under the the Spearin Doctrine. The Owner’s Representative, who oversees the project on the school’s behalf throughout the design and construction process, is another individual who is important to any campus construction project. Schools should consider whether they have someone in-house who has the time, experience, and expertise to serve as the Owner’s Representative. The person who serves in this role should be experienced and knowledgeable in construction management, including reviewing construction documents, project oversight, budget monitoring, construction organization, effective communication, and conflict-resolution. If the school does not have someone in-house with this knowledge, experience and time to dedicate to overseeing a construction project, then the school should consider hiring a third party professional to serve as its Owner’s Representative. • www.lcwlegal.com •

Other individuals important to campus construction projects are the individuals overseeing and performing work for the contractor. Any contract should include provisions requiring the contractor to provide adequate manpower to complete the work and to provide competent supervision. The contract can include the names of key personnel who the school has met, spoken to, and are comfortable with overseeing the project on behalf of the contractor. One of these named, key personnel can be the contractor’s superintendent who oversees and coordinates the work and who the school will likely have a considerable amount of contact with during the construction phase. Good coordination, collaboration, and communication between all team individuals can help promote a successful campus construction project.

Kudos to Attorney Yesenia Z. Carrillo for being named on Business Street's

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• The EEOC recently announced the opening of the 2022 EEO-1 data collection. The deadline to submit EEO-1 Component Data is December 5, 2023. The EEO-1 Component data report is a mandatory EEOC annual data collection requiring all private sector employers with 100 or more employees, including schools, to submit workforce demographic data, including data by job category and sex and race or ethnicity. For more information, please refer to the EEOC’s Instructional Booklet. • Due to the increase in reports of anti-Semitic and Islamophobic incidents in schools since the Israel-Hamas war began, the U.S. Department of Education issued a Dear Colleague Letter, warning schools of their duty to prevent and address discrimination against Jewish, Muslim, Arab, Israeli, and Palestinian American students under Title VI. Title VI only applies to schools receiving federal funding, however the letter provides helpful resources for addressing this type of discrimination. • The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently executed a Memorandum of Understanding to strengthen the agencies’ partnership in promoting safe and healthy workplaces. The agreement expands upon existing coordination between the agencies to allow for more collaboration and information sharing, cross-training, partnering on investigative efforts, and enforcing anti-retaliation provisions. The agreement adds protections for workers speaking out about unsafe working conditions. • President Biden issued an Executive Order and Fact Sheet on the Safe, Secure, and Trustworthy Use of Artificial Intelligence (AI). The Executive Order directs the Secretary of Education to develop resources, policies, and guidance regarding AI, including recommendations for appropriate human review of AI decisions, designing AI systems to enhance trust and safety and align with privacy-related laws and regulations, and developing education-specific guardrails. LCW will provide further updates once the Secretary of Education releases these resources, policies, and guidance.

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November 2023

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lcw best timeline NOVEMBER THROUGH JANUARY Issue Performance Evaluations • We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made. Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems. Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan. Compensation Committee Review of Compensation before issuing employee contracts • The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest. Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed. If lease ends at the end of the school year, review lease terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.

Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates. Review student financial aid policies. Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations. File all tax forms in a timely manner: Forms 990, 990EZ • Form 990: Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000. • Form 990-EZ: Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990-EZ. • A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations Section 1.6033-2(g)(1)(vii)). • The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day. • The School should make its IRS form 990 available in the business office for inspection.

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November 2023

practices Each month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year. Other required Tax Forms common to businesses who have employees include Forms 940, 941, 1099, W-2, 5500 Annual review of finances (if fiscal year ended January 1st) • The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review. • The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.

be separate from the audit committee. Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.

JANUARY/FEBRUARY Review and revise/update annual employment contracts. Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.

• Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee: Although the Act expressly exempts educational institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any members of the staff, including the president or chief executive officer and the treasurer or chief financial officer. If the corporation has a finance committee, it must • www.lcwlegal.com •

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Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.

Question:

Answer:

A school administrator working on updating the School’s enrollment agreement asked whether the School could charge a credit card surcharge to families looking to pay their tuition by credit card.

The LCW attorney advised that California Civil Code Section 1748.1 provides that “[n]o retailer in any sales, service, or lease transaction with a consumer may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means.” However, the attorney advised that the Ninth Circuit (which includes California) held that this section is unconstitutional because it violated freedom of speech protected under the First Amendment. Given this holding, the attorney advised that the School is permitted to impose credit card surcharge fees for paying tuition, but the School needs to ensure that families have advance knowledge of the credit charge surcharge fee and that the fee is clearly and prominently disclosed. For example, the surcharge fee should be clearly described in the School’s enrollment agreements. The surcharge fee should also be the actual amount credit card companies charge the school for processing tuition payments and not anything higher.

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November 2023

Consortium Call Of The Month

Liebert Cassidy Whitmore