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Isn't NY an at-will employment state and an employer can terminate employment as stated in the employee handbook or HR procedures?
Yes, unless a person is fired for an illegal reason (called "wrongful termination"), such as discrimination or employer retaliation against an HR complaint (sexual harassment, for one example). This woman will have to make a case that she was discriminated against, or the synagogue retaliated against her in some way.
But, as jbgusa said, it's easy to mount a frivolous lawsuit anyway.
Back in May 2021 a New York area synagogue hired an instructor. Long story short, she was fired when a virulently anti-Zionist blog post she co-wrote ten or so days after she was hired a blog post came to light. Excerpt from blog:Note that the blog refuses to capitalize Israel, the name of the country.
This was the subject of a New York Times article (link). More recently, Jonathan Tobin posted this blog post,Jewish institutions shouldn’t be hiring anti-Semites. Excerpt from Tobin article (link in title of article)What are people's views? Is this a violation of academic freedom? On the other hand should a synagogue have to hire an anti-Zionist, borderline anti-Semitic Jew?
The question is: would you want your children and grand children in a class taught by this idiot?
She is vindictively suing the synagogue. That is the issue. She perhaps fantasizes about destroying the synagogue as much as she appears to fantasize about Israel's destruction. That is why the discussion.
Quote:
Originally Posted by Rachel NewYork
It is my understanding and expectation that our Constitutional guarantee of religious liberty will prevail in the synagogue's defense. There is a legal precedent adopted by the Supreme Court involving the First Amendment rights of religious institutions in disputes with employees who hold positions essential to the religious institution's central mission.
This is my hope as well. I imagine you’re referring to the ministerial exception, which is an absolute defense against employment discrimination lawsuits filed against religious institutions by their “ministers.” In this context, “minister” is a broad and religiously neutral term that refers to a religious organization’s choice of employees than can be considered spiritual messengers. This goes far beyond ordained clergy and could easily include a Hebrew School teacher. The U.S. Supreme Court has found that the exception applies to lay teachers at Catholic schools, after all.
Suffice to say, Sander’s claims would be dead in the water under Title VII of the Civil Rights Act of 1964. The big wrinkle here is that Sander is only pursuing claims under New York State Labor Laws. My legal practice only sporadically brings me to New York, so I don’t know whether or to what extent the Ministerial Exception has been tested in New York State Court. New York State Labor Laws are far broader in terms of defining legally protected classes, and protected activities, than their federal (and most other state and local) counterparts. If I understand correctly, Sander is suing on the basis that she was engaging in a “legal recreational activity” (i.e., blogging) outside of normal work hours. Fairly few anti-discrimination laws reach that broadly as it pertains to private employers.
It still sounds like a huge stretch, but there is an angle, and the case could present multiple issues of first impression.
Sander also is not only suing the synagogue, but also two of its rabbis and the executive director.
Quote:
Originally Posted by jbgusa
That's what I expect as well. But I am concerned that the synagogue's insurance company, if there is one who is defending the lawsuit will want to settle. Also, given my familiarity with our Board of Trustees there will be not a small amount of sympathy for her. People ache for political correctness.
Quote:
Originally Posted by Rachel NewYork
I'm sure you're right that the insurance company will want to settle, and I'm not so sure that's a bad thing.
The goal was to remove this person from her position in the synagogue, right? Achieving that is enough, IMO. Let the insurance company settle, let those who feel sorry for the woman do so, and leave the anger and vindictiveness to the haters like this woman. The synagogue has a higher calling.
Judging from the website and bio of Russell Yankwitt, who entered his appearance as defense counsel, there probably is an insurance carrier involved.
A quick settlement wouldn’t be a bad thing if Sander’s monetary demand were reasonable just to get peace of mind and move on from this mishegas. This is where a private mediator or a magistrate can really come in handy, especially since she’s personally named the two rabbis and executive director as individual defendants, which is incredibly unfortunate. However, I strongly suspect her demand is anything but reasonable. I suspect the case will at least proceed to summary judgment, which, at the risk of oversimplification, is a defendant’s last big chance to boot a lawsuit from court before it can go to trial. The synagogue probably has a good chance of winning on summary judgment. But if the synagogue loses, the demand will only get higher, and they will face great risk at trial.
Quote:
Originally Posted by Rachel NewYork
Yes, unless a person is fired for an illegal reason (called "wrongful termination"), such as discrimination or employer retaliation against an HR complaint (sexual harassment, for one example). This woman will have to make a case that she was discriminated against, or the synagogue retaliated against her in some way.
But, as jbgusa said, it's easy to mount a frivolous lawsuit anyway.
Yes it is. I can tell you that if this were in Pennsylvania, Sander wouldn’t have her pinkie toe (much less a leg) to stand on. But that still doesn’t stop bottom-feeding plaintiff’s lawyers from taking legal leaps of faith.
Quote:
Originally Posted by jbgusa
I generally agree with you. A scan of the docket activity of her counsel indicates that they are in the habit of filing a lot of meritless suits, in particular one against Fordham University. An excerpt of the Appellate Division decision dismissing one action:
This is the first paragraph of the petition from Ahmad Awad v. Fordham University, Supreme Court, New York County, Index No. 153826/2017:
The attorneys involved in both the action against the synagogue and this Fordham action include Herbst Law PLLC, New York (Robert L. Herbst of counsel), for Jewish Studies Scholars (in the Fordham action). His co-counsel in the Fordham action is one Alan Levine, Center for Constitutional Rights. The Complaint in the action against the synagogue was signed by Mr. Herbst, with Jethro Eisenstein acting as co-counsel. A settlement serves to further fund litigation on behalf of SJP. While SJP was not names in Jessica Sander's original blog post it is fair to assume that there is some connection between and among the attorneys and Ms. Sander. That means buying off Ms. Sander further encourages this pernicious activity. The litigation and blog links are available to the general public so there is no copyright issue and I encourage all to look at this. This was found after a two-minute search.
Good finds. I noticed that Eisenstein shares my law school alma mater, which I find very unfortunate. Herbst, to his credit, is a Yale grad.
Judging from the website and bio of Russell Yankwitt, who entered his appearance as defense counsel, there probably is an insurance carrier involved....I suspect the case will at least proceed to summary judgment, which, at the risk of oversimplification, is a defendant’s last big chance to boot a lawsuit from court before it can go to trial. The synagogue probably has a good chance of winning on summary judgment. But if the synagogue loses, the demand will only get higher, and they will face great risk at trial.
I suspect, given the Appellate Division, First Department's approach (this synagogue's in the Second Department) it will get dismissed on motion under CPLR 3211. See cases cited in this post, Post 17, upthread, Should Synagogues be Allowed to Fire Anti-Zionist School Teacher. The case in question is Awad v. Fordham Univ., 189 A.D.3d 605, 606, 139 N.Y.S.3d 154, 156 (2020), leave to appeal denied, 36 N.Y.3d 911, 168 N.E.3d 853 (2021). Unlike Bronx Supreme, which entertained the Fordham lawsuit, the Westchester judges are a lot more politically correct, and the synagogue involved has many "pillars of the community" among its members, including at least one Judge on Westchester Supreme and at least one NY Assemblyperson.
I suspect, given the Appellate Division, First Department's approach (this synagogue's in the Second Department) it will get dismissed on motion under CPLR 3211. See cases cited in this post, Post 17, upthread, Should Synagogues be Allowed to Fire Anti-Zionist School Teacher. The case in question is Awad v. Fordham Univ., 189 A.D.3d 605, 606, 139 N.Y.S.3d 154, 156 (2020), leave to appeal denied, 36 N.Y.3d 911, 168 N.E.3d 853 (2021). Unlike Bronx Supreme, which entertained the Fordham lawsuit, the Westchester judges are a lot more politically correct, and the synagogue involved has many "pillars of the community" among its members, including at least one Judge on Westchester Supreme and at least one NY Assemblyperson.
As much as I would love to see it dismissed on the grounds that even if everything Sander asserted were true, there would be no legal basis for her claims, ministerial exception-type cases are inherently fact-intensive. Since Sander was just a teacher, I don’t know if her case can be kicked out of court on the pleadings alone, as if she were a rabbi or cantor.
The Fordham case is somewhat different, although there are certainly parallels. There’s no question here that Sander has standing to sue as an aggrieved party, in the sense that the synagogue terminated her employment. Also, while educational institutions are granted considerable deference in carrying out their affairs, religious institutions are given even more deference in this regard (and rightly so).
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