Sex discrimination verdict stands despite debatable jury charge at trial (Krause v. Kelahan Part III)

This is the unusual case where the Court of Appeals finds that the district court, during trial, gave the jury a less-than-accurate statement of legal principle that did not affect the ultimate outcome, which was a verdict for the plaintiff on her sex discrimination claim in excess of $400,000.

The case is Krause v. Kelahan, issued on December 3. I briefed the appeal, which was argued by A.J. Bosman, Esq., who tried the case. Other write-ups on this case are found at this link and this link.This appellate ruling resolves lots of issues, including a plethora of evidentiary matters; essentially, counsel for the school district appealed most of the evidentiary rulings from trial, including hearsay and other matters. 

Plaintiff was a school principal who found herself on the receiving end of the Superintendent's sexist push-back. Plaintiff was eventually fired, and defendants claimed the reasons included her unilateral modification of a student's Section 504 accommodation plan without consultation with the appropriate officers in the school district court, known as the 504 Committee. In response, Plaintiff argued in part that she was told she could implement a temporary modification to the Section 504 plan to see how it would play out.

Here is what happened: when plaintiff's mentor was on the witness stand, defense counsel read allowed a provision of state law: Education Law sec. 4402. That provision governs individualized education plans (IEP's), another way to accommodate disabled students. Under that provision, school districts can modify an IEP without a CSE committee meeting if the parties agree in writing to the changes. The district court then interjected and told the jury that it "just ... heard the law concerning the 504," and that the jury may have to determine if the district complied with the law.

On appeal, defendants argue that the trial judge was essentially telling the jury that the IEP law, Section 4402, guides this case, and that since that law says the IEP may be modified without committee, the jury might find that defendants offered false reasons for plaintiff's termination in finding that plaintiff was essentially fired for doing what the law allowed her to do.

The Court of Appeals finds that a new trial is not in order despite the trial court's statement regarding Section 4402.In light of the "record as a whole," the Court of Appeals (Carney and Lee) finds it was improbable for the jury to be "substantially swayed by the court's brief comment," for the following reasons:

1. The trial court's comment was "somewhat garbled" and contained odd phrasing and was not really a clear instruction that § 4402 applied to § 504 plans.The trial court did not tell the jury that it was required by law to allow plaintiff to agree to the changes in the § 504 plan without consultation with the Section 504 committee.

2. Plaintiff did not exploit the trial court's remark, choosing instead to focus at trial "that she followed the procedure that CSE Chair Lobdell recommended: test proposed changes to the Section 504 Plan for a two-week period and then convene the Section 504 Committee to consider making a formal amendment." Plaintiff's counsel never told the jury that Section 4402 allowed plaintiff to unilaterally change the § 504 plan. This means the trial court's remark "turned out to be peripheral to the main dispute at trial: whether plaintiff had properly altered the § 504 plan without consulting with the proper district authorities.

3. Defendants are partly responsible for this confusion because their lawyer read aloud to the jury the language in Education Law § 4402. In addition, "over the course of the litigation Defendants took inconsistent positions about whether Education Law § 4402 applied to Section 504 plans. For example, at summary judgment, they posited that Education Law § 4402 requires schools to “establish committees and/or subcommittees for the evaluation and placement of students with handicaps,” including students with Section 504 plans." For example, on the summary judgment motion, defendants argued that "Section 504 plans are 'governed by ... state law," Section 4402. They also submitted affidavits from district officials to that effect. "It was not until Beck’s cross-examination (and even then, not until after the court made the disputed comment) that defense counsel first suggested that Education Law § 4402 governed only IEPs."

This issue is quite complex, and probably explains why it took the Court of Appeals 2.5 years to resolve the appeal following oral argument. This issue also informs the dissenting opinion by Judge Sullivan, and treats this issue like a traditional "bad jury instruction."