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Sunday, October 3, 2021

From ADVOCATZ: Claimant Wins Unemployment Benefits After Resigning for "Good Cause"


Re-posted from, Sept. 7, 2017:

The case of Yolanda Cohen decided by the Appellate Division Third Department shows the importance of a fact-based defense by a Claimant showing “good cause” for resignation due to workplace harassment.

We at Advocatz use terms such as “Just Cause” (or ‘good cause’) and “bad faith” in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

“Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take any action prescribed by law. What constitutes a good cause is usually determined on a case-by-case basis and is thus relative.

Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless since that party’s serious illness is a good cause or justification for having additional time to take the legal action.”

( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). “good cause”. Black’s Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the “good cause” justification.

Similarly, a valid defense should have a fact-based presentation of bad faith by the defendant(s).

From Wikipedia:

“Bad faith (Latinmala fides) is double-mindedness or double heartedness in duplicityfraud, or deception. It may involve intentional deceit of others or self-deception.

The expression “bad faith” is associated with “double heartedness”, which is also translated as “double-mindedness”. A bad faith belief may be formed through self-deception, being double-minded, or “of two minds”, which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, “of two hearts”, or “a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another”. The concept is similar to perfidy, or being “without faith”, in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre‘s analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.

Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim.”

Betsy Combier

President and Founder, ADVOCATZ
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Appellate Division, Third Department

In the Matter of the Claim of

2017 NY Slip Op 05885

In the Matter of the Claim of YOLANDA COHEN, Respondent.



Appellate Division of the Supreme Court of New York, Third Department.

Decided July 27, 2017.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2015, which ruled that claimant was entitled to receive unemployment insurance benefits.

Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor of counsel), for appellant.

Michelle I. Rosien, Philmont, for Yolanda Cohen, respondent.

Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.


EGAN, Jr., J.

Claimant worked for the employer as a paralegal from 2007 to 2012, during which time various disciplinary charges were lodged against her. In February 2012, claimant and the employer entered into a stipulation of settlement resolving the most recent round of disciplinary infractions. Pursuant to the terms of that stipulation, claimant would waive her right to a Civil Service Law § 75 hearing and would resign effective March 15, 2012. In the interim, claimant would be allowed to collect her accrued annual leave and, going forward, would receive a “neutral reference” from the employer. Notably, the stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of claimant was made.

Claimant subsequently filed an application for unemployment insurance benefits, and the Department of Labor issued initial determinations disqualifying claimant from receiving benefits upon the grounds that she voluntarily left her employment without good cause or, alternatively, lost her employment due to misconduct. Following a lengthy hearing, an Administrative Law Judge (hereinafter ALJ) overruled the initial determinations, finding that claimant had good cause to separate from her employment and had not otherwise committed disqualifying misconduct. In so concluding, the ALJ found that claimant had been subject to a hostile work environment. The Unemployment Insurance Appeal Board subsequently adopted the ALJ’s findings and affirmed the ALJ’s decision, prompting this appeal by the employer.

We affirm. As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits (see e.g. Matter of Flint-Jones [Federal Reserve Bankof N.Y.— Commissioner of Labor], 144 AD3d 1288, 1288-1289 [2016]), and the same holds true for a claimant who engages in disqualifying misconduct (see e.g. Matter of Trunzo [Commissioner of Labor], 145 AD3d 1308, 1309 [2016]). That said, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney’s Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted]; accord Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 AD3d 998, 998 [2012], lv dismissed 19 NY3d 831 [2012]; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” (Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, 1023 [2016] [internal quotation marks and citations omitted]; see Matter of Trunzo [Commissioner of Labor], 145 AD3d at 1309).

Claimant and the employer’s witnesses presented competing accounts of claimant’s work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the “bullying” and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer’s account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve (see Matter of Saunders [Life Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317-1318 [2013]). As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant’s testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ’s findings that claimant’s actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her “hostile” and “untenable” work environment — an environment that, in turn, provided “a compelling reason for her to resign.” As there is substantial evidence to support the Board’s decision in this regard, it will not be disturbed — despite the presence of other evidence in the record that could support a contrary conclusion (see Matter of Barrier Window Sys., Inc. [Commissioner of Labor], 149 AD3d 1373, 1375 [2017]).

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs

see Matter of Kolmel:

Matter of Kolmel v City of New York
2011 NY Slip Op 07265 [88 AD3d 527]
October 18, 2011
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 7, 2011


In the Matter of William Kolmel, Appellant,
City of New York et al., Respondents.


Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Edward F. X. Hart of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-2009 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-2009 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

“[A] . . . probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law” (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). “Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith” (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a “U” rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283 [2008]).

Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner’s manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).

However, petitioner submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe petitioner’s teaching during either of his final two years at the school. This was in violation of DOE’s rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner’s assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]). Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 31350(U).]

NYSED Commissioner's Decision #17,344 (2018) on "Religious Exemption" From Immunization For a Child


New York State Education Commissioner MaryEllen Elia 

Commissioner MaryEllen Elia  granted K.M's request for a religious exemption from immunizations required by Pixie Nursery School pursuant to Public Health Law (“PHL”) §2164, saying:

"Based on the record before me, I find that the weight of the evidence supports petitioner’s contention that her opposition to immunization stems from sincerely-held religious beliefs."

Decision No. 17,34

Appeals of K.M., on behalf of her daughter A.M., from an action of the Pixie Nursery School regarding immunization.

(March 13, 2018)

ELIA, Commissioner.--In two related proceedings using the same caption (“Appeal I” and “Appeal II”), petitioner challenges the determination of the Pixie Nursery School (“respondent” or “Pixie”), a nonpublic school,[1] that her daughter, A.M. (“the student”), is not entitled to an exemption from the immunization requirements of Public Health Law (“PHL”) §2164. Because these proceedings present similar issues of fact and law, they are consolidated for decision. Appeal I must be dismissed and Appeal II must be sustained in part.

In February 2016, petitioner registered the student at Pixie for the 2016-2017 school year, commencing in September 2016. On March 21, 2016, petitioner submitted tuition payment and a physician’s report indicating that the student’s immunizations are incomplete because of a “religious exemption.” Petitioner alleges that respondent’s director, Sara Vasilakos (“director”) contacted petitioner on or about March 30, 2016, and informed petitioner that the school does not accept religious exemption requests. In April 2016, petitioner re-submitted an enrollment application and a Request for Religious Exemption to Immunization Form dated April 20, 2016, with a letter requesting a religious exemption from the immunization requirements of PHL §2164 on behalf of the student. In the letter, petitioner described her Catholic faith and upbringing and explained how her familial relationships, Christian tradition and experiences played an important role in her life and religious beliefs. She also elaborated on how her faith guided many aspects of her life.

Petitioner further explained:

Our bodies are a temple, not of our own but a sanctuary for Him. I interpret his word and implement the word by maintaining a lifestyle that is healthy and clean. [The student] was born a healthy girl with a strong and healthy immune system created by God to defend her body against disease and illness. I rely on Gods [sic] healing power and the power of prayer ... It would be a contradiction of my God’s word to take my daughter to a physician and purposely introduce disease and unclean chemicals into her body knowing that she has a strong, healthy, and intact immune system.

Petitioner also stated that “[i]mmunization corrupts the purity of the sacred and precious blood. It tricks the body into unnatural immune responses, which was created by man and not by God.” She also cited to various Biblical verses and texts and explained her interpretation of those Biblical verses and texts.

By letter dated May 6, 2016 respondent denied petitioner’s request, stating:

While we respect your right to claim a religious exemption for not having your child vaccinated, it is the policy of the school not to accept any child who has not been immunized. This is for the child’s well-being as well as that of the current students and staff.

Appeal I ensued.

Subsequent to the initiation of Appeal I, by letter dated June 28, 2016, respondent further notified petitioner that her request had been reviewed and was denied because her claims were “based on moral, philosophical and personal belief[s].” Appeal II ensued. Petitioner’s request for interim relief was granted on August 30, 2016.

Petitioner asserts that she has genuine and sincere religious beliefs that are contrary to immunization. Petitioner maintains that respondent’s denial of her request was arbitrary and capricious and is in violation of the New York State Education Department’s (“Department”) guidance because respondent has a “blanket policy of denying all religious exemptions ...” and “I was denied procedural due process as the exemption application was not even accepted and/or considered, let alone judged to be insincere and disingenuous [emphasis omitted].” Petitioner also contends that respondent’s denial of her request was arbitrary and capricious because it failed to sufficiently evaluate the sincerity or religious nature of her beliefs. Petitioner seeks a religious exemption for the student pursuant to PHL §2164.

Respondent appears to argue that it is not subject to the requirements of PHL 2164. In its letter dated June 28, 2016, issued in response to Appeal I, respondent determined that petitioner’s objections to immunization are not based on sincerely held religious beliefs, but rather are based on moral, philosophical and personal objections to immunizations.

Initially, I must address several procedural issues. Appeal I must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). In Appeal I, petitioner challenged respondent’s refusal to consider her request for a religious exemption to immunization. Respondent subsequently did consider the request and respondent’s June 28, 2016 determination to deny petitioner’s request for a religious exemption based upon respondent’s evaluation of the sincerity of petitioner’s religious beliefs, therefore, renders Appeal I academic.

With respect to Appeal II, petitioner’s affidavit of service indicates that the petition was personally served on Pixie’s director on August 12, 2016. Thereafter, the secretary of respondent’s board of trustees submitted an unverified letter, dated August 22, 2016, identified as respondent’s “response in opposition to [the petition] dated August 11, 2016.” However, the correspondence did not constitute an answer or other pleading, nor was it verified in accordance with §275.6 of the Commissioner’s regulations. No further response to the petition was submitted. By letter dated October 13, 2016, my Office of Counsel informed respondent that §§275.9 and 275.13 of the Commissioner’s regulations require that “each respondent upon whom a copy of a petition has been served shall serve and file an answer thereto.” My Office of Counsel further informed respondent that no answer had been filed within the time allotted. Because respondent has not submitted a verified answer to the petition pursuant to §§275.5 and 275.12 of the Commissioner’s regulations, the factual allegations set forth in the petition are deemed to be true statements (8 NYCRR §275.11; see e.g. Appeal of Adamitis, 38 Ed Dept Rep 765, Decision No. 14,137). To the extent that respondent relies on its unsworn correspondence, dated August 22, 2016, such unsworn correspondence will be considered solely for any argument contained herein and will be weighted accordingly.

Next, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677). A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810). Therefore, to the extent that petitioner attempts to raise constitutional issues in regard to Appeal II, I decline to consider such constitutional claims.

Finally, to the extent that petitioner seeks damages and fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Turning to the merits, PHL §2164 prohibits a school from admitting a child without evidence that the child has received certain immunizations. However, PHL §2164(9) provides as follows:

This section shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school.

The determination of whether petitioner qualifies for a religious exemption for her child requires the careful consideration of two factors: whether petitioner’s purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (see Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 503; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410). It is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption (Sherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 FSupp 81). However, the exemption does not extend to persons whose views are founded upon medical or purely moral considerations, scientific or secular theories, or philosophical and personal beliefs (Farina v. Bd. of Educ. of the City of New York, et al., 116 FSupp2d 503).

Whether a religious belief is sincerely-held can be a difficult factual determination that must be made, in the first instance, by school district officials (Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875). A parent or guardian who seeks a religious exemption must submit a written and signed statement to the school district stating that they object to his or her child’s immunization due to sincere and genuine religious beliefs which prohibit the immunization of his or her child (10 NYCRR §66-1.3[d]). If, after reviewing the parental statement, questions remain about the existence of a sincerely-held religious belief, the principal or person in charge of a school may request supporting documents (10 NYCRR §66-1.3[d]).

In determining whether beliefs are religious in nature and sincerely-held, school officials must make a good faith effort to assess the credibility and sincerity of petitioner’s statements and may consider petitioner’s demeanor and forthrightness. While school officials are not required to simply accept a statement of religious belief without some explanation, they similarly should not simply reject a statement without further examination (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In Appeal II, petitioner argues that respondent rendered its June 28, 2016 determination that she did not have sincerely-held religious beliefs without “further examination” and “constructively denied [her] an in-person meeting.” In its June 28, 2016 letter, respondent states that it “read and researched [petitioner’s] declaration” and sets forth the specific reasons for its denial of petitioner’s religious exemption request. In that letter, respondent also notes that petitioner’s statement “did not indicate what stopped her from immunizing [the student after February 6, 2014]” and that petitioner failed to “provide a statement of which ingredients are contrary to her belief.” It does not appear from the record, however, that prior to making a determination, respondent questioned or asked petitioner to explain these aspects of her statement.

As discussed above, school officials should not simply reject a statement without further examination (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of H.K. and T.K., 49 id. 56, Decision No. 15,957; Appeal of S.B., 48 id. 332, Decision No. 15,875). Should any need for elaboration regarding such statement have arisen, respondent should have requested an explanation or supporting documentation (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of C.O., 52 id., Decision No. 16,421). Nevertheless, while the record indicates that, after reviewing petitioner’s exemption request, questions remained about the existence of a sincerely-held religious belief, respondent neither requested a meeting nor requested supporting documents from petitioner as required by Department of Health regulations (see 10 NYCRR §66-1.3[d]; Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of R.R., 54 id., Decision No. 16,663). As a result, respondent is urged to review its communications, processes, and procedures to ensure compliance with applicable laws, regulations, and guidance in the processing of exemption requests and to avoid confusion on the part of parents requesting such exemptions (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920; Appeal of R.R., 54 id., Decision No. 16,663).

In any case, although the record indicates that respondent did not specifically question petitioner regarding the issues raised above prior to denying her exemption request, respondent did raise such issues in its June 28, 2016 letter and, as a result, while petitioner did not have the opportunity to respond to these particular concerns prior to respondent’s denial of her exemption request, petitioner has now had sufficient opportunity to address them (see Appeal of A.Z. and L.C., 56 Ed Dept Rep, Decision No. 16,920).

I find no merit in respondent’s argument that, as a private school, it is exempt from the requirements of PHL §2164 or that it has the right to deny petitioner’s religious exemption request based on its concerns over the health and safety of its pupils and staff. The religious exemption set forth in PHL §2164(9) applies to private and parochial schools and is available to students who attend such schools (Bowden, et al. v. Iona Grammar School, et al., 284 AD2d 357; Appeal of L.S., 48 Ed Dept Rep 227, Decision No. 15,845; Appeal of L.S., 47 id. 476, Decision No. 15,758).

Furthermore, PHL §2164(1)(a) provides in pertinent part:

[T]he term ‘school’ means and includes any public, private or parochial child caring center, day nursery, daycare agency, nursery school, kindergarten, elementary, intermediate or secondary school.

Also, with respect to the age of the student or the voluntariness of her enrollment in respondent’s school, PHL §2164[1][b] provides in pertinent part, “the term ‘child’ shall mean and include any person between the ages of two months and eighteen years.” Accordingly, the exemption provisions apply to the student (Appeal of D.W. and N.W., 50 Ed Dept Rep, Decision No. 16,144).

I find that petitioner has sufficiently demonstrated a genuine and sincere religious belief within the meaning of PHL §2164. While I have generally held that mere citations to statements that are religious in nature, general statements about God, the perfection of the immune system, and citations to Biblical verses and passages, without more, are insufficient to establish genuine and sincere religious beliefs against immunization (see Appeal of B.R. and M.R., 50 Ed Dept Rep, Decision No. 16,250; Appeal of I.M. and G.M., 50 id., Decision No. 16,164; Appeal of C.S., 50 id., Decision No. 16,163); here, petitioner relies on Biblical verses and passages to explain the precise nature and origin of her beliefs as described in her April 2016 exemption request. Her beliefs appear to be based on her own interpretation of Biblical texts in accordance with her Catholic upbringing and life experiences, are religious in nature, consistent, and straightforward. Further, there is no evidence in the record before me that petitioner’s position is not religious in nature or that it is based on moral, philosophical, scientific, medical or personal preferences. Aside from its own conclusory statements, respondent fails to identify any specific examples to support its characterization of petitioner’s beliefs. Nor is there any indication on the record before me that respondent requested any supporting documents or other information from petitioner to further explain or clarify her religious beliefs.

In support of her exemption request, petitioner sufficiently explains and elaborates why her beliefs keep her from immunizing the student. Petitioner states:

[A]fter renewing my relationship with GOD, I was washed clean of sin. He is all-knowing, and as such I can walk in faith that he will provide protection and guidance for his children.

Petitioner further acknowledges that she may seek medical intervention “should my child(ren) become unhealthy and their body is in crisis, I will seek advice from a physician as well as pray to my God” and “[t]here is a significant difference between a body in crisis needing help and a body that is healthy accepting a procedure.” To support this position, petitioner refers to the following Biblical citation: “‘But when Jesus heard that, he said unto them, they that be whole need not a physician, but they that are sick.’ (Matthew 9:12 KJV).” Further, I note that the fact that petitioner would consent to medical treatment of a sick child is not necessarily determinative. Individuals need not oppose medical treatment per se to qualify for a religious exemption but must assert only that they believe in reactive as opposed to proactive medical treatment (Lewis, et al. v. Sobol, et al., 710 F Supp 506).

In support of its determination to deny petitioner’s exemption request, respondent stated that petitioner’s “statement of request for religious exemption of immunizations had no direct or supportive foundation in either the Old or New Testament of the Christian Bible.” Respondent further stated:

A review ... of [petitioner’s] religious declaration ... was deemed as non-supportive of her religious request for immunization exemption. [Respondent’s] Board and Minister concluded that [petitioner’s] beliefs could not be substantiated in the Christian Bible [and petitioner’s] request ... is not supported by historical positions on vaccinations by either the Catholic Church or any Protestant denomination.

I agree with respondent that the record does not support a finding that the Catholic Church or Protestant religion has taken the position that the use of vaccines is forbidden or prohibited; however, as previously stated, it is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption (Sherr, et al. v. Northport-East Northport Union Free School Dist., et al., 672 FSupp 81; Appeal of B.S., 56 Ed Dept Rep, Decision No. 17,058; Appeal of D.W. and N.W., id., Decision No. 16,144; Appeal of L.S., 48 id. 227, Decision No. 15,845). Accordingly, it is not necessary for petitioner’s religious objections to be in accordance with the Christian Bible or Catholic or Protestant tradition or that of any other organized religion, provided that they are religious in nature.

The record indicates that another factor considered by respondent in denying petitioner’s exemption request was the student’s immunization history. However, the fact that a child has been immunized in the past is not necessarily dispositive in determining whether a genuine and sincere religious belief against immunizations exists (Lewis, et al. v. Sobol, et al., 710 FSupp 506; Appeal of K.N.N.M. and E.A.Y., 52 Ed Dept Rep, Decision No. 16,410; Appeal of L.K., 45 id. 10, Decision No. 15,243). Indeed, petitioner explained:

[W]hen I was a new mom, I vaccinated my daughter and then stopped February 6, 2014. I thought I was doing the ‘right’ thing and never looked at the process from a religious perspective. I never looked at it that I was not trusting God. I trusted the pediatrician and did not look at it like I was replacing doctor’s orders as the sovereign of God. I have put the past behind me, and I view this as a lesson learned, through life experience. I had no knowledge of the foreign ingredients in vaccinations.... It is through God’s word and my personal and always growing understanding of his sacred text, while reading his word to my daughter, my viewpoint changed.

Accordingly, the student’s prior immunization history and the fact that petitioner changed her mind concerning vaccination does not evince a lack of sincerity or diminish the sincerity of petitioner’s religious beliefs.

Based on the record before me, I find that the weight of the evidence supports petitioner’s contention that her opposition to immunization stems from sincerely-held religious beliefs. Respondent’s argument that petitioner’s objection to immunization is not supported by the Christian Bible or based on Catholic or Protestant law or tradition is of no merit. Therefore, on this record, I disagree with respondent that petitioner’s exemption request fails to establish petitioners claimed religious opposition to vaccinations. Petitioner explains and specifies the precise nature and origin of her beliefs in her own words. Her beliefs appear to be religious in nature, are well-articulated and, contrary to respondent’s conclusory assertion, there is no evidence that petitioner’s position is not religious in nature or based on moral, philosophical, scientific, medical or personal preference. Accordingly, I conclude that petitioner has met her burden and that the record, as a whole, shows that petitioner objects to immunization based on sincerely-held religious beliefs.


IT IS ORDERED that respondent grant petitioner’s daughter a religious exemption from the immunization requirements pursuant to Public Health Law §2164(9).


[1] Respondent asserts that it is an unincorporated nursery school.

Education Fraud Inside NYC Public Schools

Parents, beware: Have your kids read to you -- whether an age-appropriate book or The Post story
on last night's Yankees game. You need to know where they really stand.
                                                                                        Getty Images/iStockphoto

While excellent teachers are forced into hidden rubber rooms city-wide because of false charges, principal retaliation, and lies, the NYC Department of Education will, on Monday, remove more excellent teachers from the classroom and replace these educators with uncertified substitutes who may or may not have licenses to teach in the content areas they are assigned. This is the policy known as "Children Last, Money first".

Teachers union chief says NYC is ‘hiding’ student in-person attendance

NYC Schools Are In Full Swing But Afterschool Programs Struggle To Find Enough Staffing

Another troubling problem is the fact that the NYC Department of Education is intent on secrecy. Student-on-student violence and actual attendance records are kept hidden in order to swing their huge Public Relations office whichever way the NYC PTCs ("People Who Count" -i.e. political and financial bigwigs) blow.

NYC Council bills would require Education Dept. to report more detailed attendance, COVID-19 data

The fraud of public education in New York City is being displayed in social media, newspapers and by whistleblowers every day, all day. See:

 Education Law 3020-a Arbitration Up-Close and Personal: The Case of Teddy Smith

The New York City 3020-a Arbitration “Teacher Trial” Is Based on Fraud

and my daughter's essay on TERC Math written when she was in 4th grade:

You should also read an excellent website worth checking out for the dumbing down of children in math:

NYC HOLD National on Mathematics Education Reform

No parent, teacher, arbitrator or Administrative Judge should believe what they are told. Get the facts or get help in finding the facts.

Betsy Combier
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 

Are you sure your kid can read? All too many US public schools won’t tell you the truth
Michael Benjamin, NY POST, October 2, 2021

We ask that question of any parent whose child attends a city Department of Education school and more broadly of families (especially urban ones) all across the nation. And not just elementary-school children, but even middle- and high-schoolers.

Because all too many public schools not only fail to teach basic skills; they promote students with decent grades without ever alerting families to how bad things really are. If there was a silver lining to the sick farce of remote learning this last year and a half, it was that it forced many parents to get more involved in their children’s education. And lots and lots of them woke up to the horrible truth.

This is one reason, as we noted recently, that some 1.5 million families have pulled their children from the public schools in the wake of COVID. Many went to charter public schools; others to Catholic or other private ones or to homeschooling.

It’s also why parents in Queens District 26 are rebelling: Solid middle- and working-class black families are appalled that the system has put their kids on the path to nowhere when they had every reason to believe the next generation would exceed them.

On the other side of things, it’s also why the teacher-union-controlled state education authorities have suspended all meaningful academic assessments for yet another year: They don’t want to risk parents learning how far behind their kids have fallen. They know the terrible news will prompt more public fury.

These failures in early education are routine, especially in low-income black and Hispanic neighborhoods. De facto “social promotion” — moving the kids on to the next grade, no matter how unprepared they are — hides the truth.

By high school, the scams get more elaborate, yielding the endless series of “worthless diploma” scandals The Post keeps exposing — only to have more pop up. Because at that point, the only way to graduate the kids is for the school to cheat.

Then again, those state educrats are busy watering down and even eliminating the testing and other standards that make that cheating “necessary.” Soon all the kids will be above average!

As a last resort, apologists for the system will blame . . . the parents, pointing to kids who don’t try from families that don’t seem to care. Yet the system also increasingly doesn’t work for those who do care, like the families in District 26.

Charters, by the way, typically deal with that challenge, by pushing parents to commit. Unlike the regular public schools, they don’t shrug. And they’re also far less willing to let children disrupt classes at the expense of those who want to learn.

We have some hope for New York City: Likely next mayor Eric Adams spelled it out recently: “Sixty-five percent of black and brown children don’t meet proficiency in the Department of Education.” That means: “Our school system is dysfunctional and we have to stop acting like it’s not. We sometimes have to call a thing the thing and be honest about the basic essentials.”

Sadly, we see no sign so far that Gov. Hochul will follow suit: She’s too busy appeasing Democratic Party factions ahead of next year’s primary, and the United Federation of Teachers — the stakeholder that prospers most from the status quo — is one of the most potent factions. Adams proved that you can win a primary even in New York City while refusing to kowtow to the UFT, but Hochul lacks the imagination or perhaps the will.

And Adams isn’t mayor yet, nor will change come easy. And he can’t do anything about the same obscene failure in Chicago, Los Angeles and all across America.

Parents, beware: Take your children aside right now and have them read to you — whether an age-appropriate book or The Post story on last night’s Yankees game. You need to know where they really stand.