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FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023
STATE OF NEW YORK SUPREME COURT
COUNTY OF ALBANY
In the Matter of the Application of
AUDRA SCHMITT,
Petitioner, VERIFIED PETITION
-against-
TEACHERS'
THE NEW YORK STATE Index No.:
RETIREMENT SYSTEM, RJI No.:
Respondent.
Petitioner, Audra Schmitt, by and through her attorneys, Bolaños Lowe PLLC, as and for
her Petition pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), alleges as
follows:
INTRODUCTION
1. This is an action for relief pursuant to Article 78 of the CPLR. As detailed more
thoroughly below, Petitioner seeks a determination that the decision made by the New York State
Teachers' ("NYSTRS"
Retirement System or "Respondent") to deny pension credit for salary
payments made to her by the Livonia Central School District (the "District") for the period July 1,
2020 through her retirement date of April 21, 2022, while she was sick and out of work on
approved medical leave, is a determination made in violation of lawful procedure, was affected by
an error of law, and was arbitrary, capricious, and/or an abuse of discretion. CPLR §7803(3). In
addition, Petitioner seeks an order compelling Respondent to reinstate Petitioner's pension credit
in a manner consistent with the New York Retirement and Social Security Law ("RSSL"). CPLR
§7803(1).
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JURISDICTION AND VENUE
2. Jurisdiction exists pursuant to CPLR §§7801, et seq.
3. Venue is proper in the County of Albany pursuant to CPLR §§ 505(a) and 506(b)
as it is the County within the judicial district where the Respondent made the determination
complained of, or where the material events otherwise took place, or where the principal office of
the Respondent is located.
PARTIES
Schmitt"
4. Audra Schmitt ("Ms. or "Petitioner"), who resides in Pittsford, New York,
was employed as the High School Principal with the District from on or about July 2016 until her
retirement date of April 20, 2022. She received normal bi-weekly pay during that entire period.
Ms. Schmitt was at, all material times hereinafter referenced, a member of the New York State
Teachers'
Retirement System (hereinafter referred to as "NYSTRS") pursuant to the New York
State Education Law (hereinafter "Educ. Law") §503, and as a member thereof, made any and all
contributions thereto as required by law. Ms. Schmitt was a member of NYSTRS beginning on or
about September 1, 1989. (See Affidavit of Audra Schmitt, dated March 30, 2023, at T 5). (All
references herein to the Affidavit of Audra Schmitt, dated March 30, 2023, will hereinafter be
referred to as follows: "Schmitt Aff. at
¶_" or "Schmitt Aff. at Ex. _").
5. Petitioner was forced to stop performing work as the District's High School
Principal when she became severely ill on or about December 12, 2019, due to a hostile work
environment and unlawful harassment at the hands of the District's Superintendent of Schools,
Matthew Cole, (hereinafter "Cole"). (See Schmitt Aff. at ¶¶ 10, 11, 16, 18-29). At all relevant
times herein, Ms. Schmitt's disabling impairments were caused by the reckless behavior of Cole,
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and by act or omission, were approved and/or condoned by the District and its employees and
officials. &
6. Respondent, NYSTRS, is a corporation organized pursuant to the laws of the State
of New York.
FACTUAL ALLEGATIONS
Summary of Petitioner's Career
7. Petitioner began her career as a teacher in New York State, serving as a Social
Studies teacher beginning in the year 1989. (See Schmitt Aff. at ¶ 7).
8. Thereafter, until her retirement date of April 20, 2022, Petitioner continuously
served in various capacities in teaching and administration in K-12 public education, except for
one period of maternity leave. (See Schmitt Aff. at ¶ 7).
9. Just prior to taking the position at the District I was the Executive Director of K-12
Social Studies for the Rochester City School District, which was a secure position and I had
excellent standing. Prior to accepting the Executive Director position at RCSD, I was the High
School Principal position at the District, Petitioner served in various capacities for the Pittsford
Central School District ("Pittsford CSD") and was a well-respected teacher, curriculum-leader,
and administrator in that highly acclaimed and top-performing public school district. Ms.
Schmitt's took on a new challenge and agreed to work for the District-a small. rural school
district-effective in July of 2016. Petitioner left a very secure, tenured position in Pittsford CSD
to accept this new, untenured position with the District. (S_ee Schmitt Aff. at ¶ ¶ 12, 14, 16).
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10. During her employment with the District she received stellar evaluations and was
on track to receiving tenure at the District until the trajectory of Ms. Schmitt's career and her
personal well-being changed drastically in or around July 2018 when she began to protest the
Superintendent's improper conduct, most notably beginning with refusing an overt sexual advance
he made on her in July of 2018. (See Schmitt Aff. at f 17).
Adverse Employment Actions Attempted by Cole Against Petitioner
11. After months of abhorrent behavior by Cole toward Ms. Schmitt and others, Ms.
Schmitt's conflict with Cole intensified. The behavior is detailed in Schmitt Aff. at A. and will
not be repeated here in any detail. Specifically, on November 14, 2019, at a meeting at which
Petitioner was presiding, High School staff members shared their disappointment with Petitioner
regarding Cole's leadership. The staff focused on an impasse that had been reached between Cole
teachers'
and the union in negotiations for a successor collective bargaining agreement. Staff told
Ms. Schmitt that the frustration extended to overall morale. The union was blaming Cole for the
negative morale. A staff member shared they were so disgusted with Cole that the union was
Rule" Confidence"
considering "Work to or a "Vote of No action against Cole. (See Schmitt Aff.
at ¶ 21).
12. On November 17, 2019, Ms. Schmitt met with Cole to advise him of the
information she had learned. Cole was completely unaware of severity of the problem, he was
noticeably shocked, and became furious. He yelled at Ms. Schmitt and demanded she reveal her
source. Fearing retaliation for this individual and others at the meeting, Ms. Schmitt refused to
unmask the whistleblower. (See Schmitt Aff. at ¶ 22).
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13. In less than 24 hours from when Ms. Schmitt notified Cole of the potential union
teachers' teachers'
activity against him, Cole settled the contract with the union, giving the union
pay raises he had previously opposed. (See Schmitt Aff. at ¶ 23).
14. Days after the contract settlement, Cole put in place plans to demote Ms. Schmitt,
which was blatant retaliation for her refusal to identify individuals who had shared information
with her about Cole's professional misconduct. (See Schmitt Aff. at ¶ 24).
15. Cole threatened Ms. Schmitt that she must either accept the demotion or he would
deny her tenure as High School Principal and she would be terminated. (S__ee Schmitt Aff. at ¶ 25).
16. Ms. Schmitt's blood pressure spiked, and her doctor took her out of work beginning
on or around December 12, 2019 due to hypertension caused by workplace stress and a diagnosis
of adjustment disorder with anxiety sparked by the toxic work environment created by Cole's
actions and behaviors. (See Schmitt Aff. at ¶ 26).
17. Four days later, on December 16, 2019, Cole took his restructuring plan (including
the demotion of Ms. Schmitt) to the Board of Education ("BOE") for approval, while Ms. Schmitt
was out on a medical leave of absence. (See Schmitt Aff. at ¶ 27).
18. Ms. Schmitt had only received one formal evaluation in the Fall of 2017, and it was
excellent. At no point did Ms. Schmitt receive any negative evaluation or performance review. In
fact, she did not receive an evaluation in the 2018-2019 or 2019-2020 school years, though she
subsequently (in response to a FOIL request) received a positive evaluation for 2018-2019 that
appears to have been completed by Cole, but never provided to her. (Se Schmitt Aff. at ¶ 28).
19. After having virtually no contact with anyone from the District since I left work on
December 11, 2019, on March 13, 2020, Ms. Schmitt received a letter from Cole via PDQ delivery
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service, that she was going to be denied tenure and that her employment was going to be terminated
at the Board meeting scheduled for April 20, 2020. Notably, this letter was received in the same
week that New York State completely shut down for COVID-19. (See Schmitt Aff. at ¶ 29; Ex.
E).
Petitioner's Whistleblower Action and Notice of Her Claims to the District's Board of Education
20. With her unlawful termination imminent and scheduled to be approved by the BOE
on April 20, 2020, on April 17, 2020, Petitioner personally served upon each member of the BOE
a lengthy whistleblower notice disclosing Cole's pervasive, unlawful behaviors. In this letter,
Petitioner offered terms to resolve the hostile employment situation that Cole had created with
respect to her employment. Ms. Schmitt's main request was for the BOE to refrain from denying
her tenure. (See Schmitt Aff. at ¶ 30; Ex. E).
21. Upon receipt of Ms. Schmitt's notification, the BOE immediately stayed Cole's
action against Petitioner, halting any action to deny Ms. Schmitt's tenure proposed by Cole, and
claimed it would initiate an investigation into the allegations against Cole. Relevant to the instant
proceeding, the BOE immediately summoned its insurer and attorneys to negotiate a resolution of
the hostile work environment Cole had created for Ms. Schmitt, most likely to avoid the possibility
of Ms. Schmitt filing any suit or claim against the District in court or with any administrative
agency, such as the Equal Employment Opportunity Commission or the New York State Division
of Human Rights. wherein she clearly would have raised colorable claims of sex, race, religious,
and disability discrimination, as well as retaliation for engaging in protected activity, which could
have been extremely damaging to the District. For example, if the public had learned that Cole
had been making openly anti-Semitic remarks, such as, "That teacher looks like a Jew from
Auschwitz"
or "He's cheap because he is a Jew", there would be an outcry and call for his
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immediate termination. Further, the actions reported by Ms. Schmitt about Cole should have been
reported to the moral character/certification unit of the State Education Department for
examination of whether Cole was morally fit to serve as an administrator. (See Schmitt Aff. at ¶
30; Exs. A).
T/re Settlement Agreement
22. Petitioner and the District entered into a confidential settlement agreement
("Agreement") whereby Petitioner would continue in her employment with the District, remain on
her sick leave status, and she would receive tenure as the High School Principal, which she
deserved. However, since Ms. Schmitt was not cleared to work at the District under Cole, and
since the BOE did not entertain removing Cole from the workplace, Ms. Schmitt was required to
remain out of work on her sick leave status, although her salary would be reduced by
approximately 35%. The fact that NYSTRS completely overlooks the fact that Ms. Schmitt did
not have medical clearance to return to the workplace is completely reckless. As part of the
Agreement, Ms. Schmitt agreed to retire when first eligible so that the leave of absence would not
continue in perpetuity, in return, Ms. Schmitt would be granted retiree health insurance benefits.
(See Schmitt Aff. at ¶ 32; Ex. G).
23. The Agreement was executed on May 19, 2020. IL
24. It is important to note that at the time that Ms. Schmitt and the District began to
discuss a resolution to the hostile work environment Cole had created for Ms. Schmitt, she was
already on an approved, job-protected leave of absence due to a work-related injury. Nothing about
the Agreement detracted from or modified Ms. Schmitt's sick leave/ADA/NYSDRL/FMLA
protected status. Ms. Schmitt had plenty of sick time available to her at the time she entered into
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this Agreement. There has never been any allegation made by the District or Respondent that Ms.
Schmitt did not or would not have lawfully been eligible to continue to remain out of work on sick
leave until her retirement date of April 20, 2022. (See Schmitt Aff. at ¶¶ 36-38; Ex. H).
25. In fact, based on Ms. Schmitt's trauma and diagnosis, Ms. Schmitt's disabling
condition would have remained for as long as Cole was the Superintendent. (See Schmitt Aff. at ¶
39). Although Cole was eventually removed as the District's Superintendent on or about July 15,
2022, for reasons not made public by the District, Cole was still the Superintendent on the effective
date of Ms. Schmitt's retirement. Ms. Schmitt was not going to be released by her doctor to work
under Cole, because her health conditions would continue to be exacerbated by him. (See Schmitt
Aff. at ¶ 36).
26. Unfortunately, though it was requested by Petitioner and her counsel as an
accommodation under the ADA and the NYSHRL, the District would not remove Cole as her
supervisor, and would not even place Cole on a leave of absence while investigating her
whistleblower claims, which would have allowed Ms. Schmitt an accommodation to work. At the
time that Ms. Schmitt raised her claims with the Board, and at all other times relevant to this
proceeding, the District had approved Ms. Schmitt's medical need to be separated from Cole in
the and continued Petitioner's excused leave of absence. (See Schmitt Aff. at ¶¶ 33-
workplace,
34; Ex. F).
Petitioner's Retirement
27. Pursuant to the terms of the Agreement, Ms. Schmitt, honoring her commitments
thereunder, retired effective April 20, 2022. (See Schmitt Aff. at ¶ 41).
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28. As soon as Ms. Schmitt retired on April 20, 2022, Ms. Schmitt's pension was
approved and processed by NYSTRS. Shortly after she retired, she began receiving her full and
appropriate pension payments in the amount of approximately $5700 per month (based on
NYSTRS's calculation that Petitioner had achieved a full 30 years of service/$68,107 due
annually). (See Schmitt Aff. at ¶ 42).
29. On or around June 14, 2022, Jeremey Lonneville ("Lonneville"), who was the
Interim Superintendent at the time due to the abrupt termination of Cole's employment for reasons
unknown to Ms. Schmitt, voluntarily provided a copy of the Agreement to NYSTRS, despite the
confidentiality provisions stated therein. (See Schmitt Aff. at ¶¶ 43-44; Ex. K).
30. As a direct result of Lonneville providing a copy of the Agreement to NYSTRS and
his statements to NYSTRS that Ms. Schmitt was not working (rather than stating the truth that she
had been placed out of work on an approved sick leave since December 12, 2019), on or around
August 1, 2022, Petitioner received a letter from NYSTRS dated July 26, 2022 advising her that
NYSTRS had made a preliminary determination reducing her pensionable time allowed from 30
years to 28 years (excluding the period July 1, 2020 through April 20, 2022), thereby reducing her
annual payment from $68,107 to $46,273 (a loss of $21,834 annually/$1820 per month). (h
Schmitt Aff. at ¶ 45; Ex. L).
31. After receiving the Preliminary Determination, Ms. Schmitt contacted Susan
Rossetti ("Rossetti") (the NYSTRS Member and Employer Services representative identified on
the letter) to discuss the Preliminary Determination. During their phone conversation, Rossetti
shared the following information with Petitioner: (1) The decision to award 30 years of service
credit was reversed solely due the Agreement and information supplied by Lonneville; (2) the
Agreement was sent to NYSTRS voluntarily by Lonneville in June of 2022, two years after it was
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effective; (3) if the Preliminary Determination was not overturned the District would receive a
large refund from NYSTRS; (4) the pensionable deduction should Ms. Schmitt's serviceable time
be reduced would be a 42% reduction in her retirement benefit,; (5) with full service credit (30
years) Ms. Schmitt's monthly pension income was $5650.00, with the reduced service credit it
would be dropped to $3850.00 per month; (6) Rossetti indicated the onus was on the District to
ask NYSTRS to review the Agreement when it was first signed; (7) the District denied Ms.
Preview
FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In the Matter of the Application of AUDRA SCHMITT, Petitioner, VERIFIED PETITION -against- TEACHERS' THE NEW YORK STATE Index No.: RETIREMENT SYSTEM, RJI No.: Respondent. Petitioner, Audra Schmitt, by and through her attorneys, Bolaños Lowe PLLC, as and for her Petition pursuant to Article 78 of the Civil Practice Law and Rules ("CPLR"), alleges as follows: INTRODUCTION 1. This is an action for relief pursuant to Article 78 of the CPLR. As detailed more thoroughly below, Petitioner seeks a determination that the decision made by the New York State Teachers' ("NYSTRS" Retirement System or "Respondent") to deny pension credit for salary payments made to her by the Livonia Central School District (the "District") for the period July 1, 2020 through her retirement date of April 21, 2022, while she was sick and out of work on approved medical leave, is a determination made in violation of lawful procedure, was affected by an error of law, and was arbitrary, capricious, and/or an abuse of discretion. CPLR §7803(3). In addition, Petitioner seeks an order compelling Respondent to reinstate Petitioner's pension credit in a manner consistent with the New York Retirement and Social Security Law ("RSSL"). CPLR §7803(1). v. 1 1 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 JURISDICTION AND VENUE 2. Jurisdiction exists pursuant to CPLR §§7801, et seq. 3. Venue is proper in the County of Albany pursuant to CPLR §§ 505(a) and 506(b) as it is the County within the judicial district where the Respondent made the determination complained of, or where the material events otherwise took place, or where the principal office of the Respondent is located. PARTIES Schmitt" 4. Audra Schmitt ("Ms. or "Petitioner"), who resides in Pittsford, New York, was employed as the High School Principal with the District from on or about July 2016 until her retirement date of April 20, 2022. She received normal bi-weekly pay during that entire period. Ms. Schmitt was at, all material times hereinafter referenced, a member of the New York State Teachers' Retirement System (hereinafter referred to as "NYSTRS") pursuant to the New York State Education Law (hereinafter "Educ. Law") §503, and as a member thereof, made any and all contributions thereto as required by law. Ms. Schmitt was a member of NYSTRS beginning on or about September 1, 1989. (See Affidavit of Audra Schmitt, dated March 30, 2023, at T 5). (All references herein to the Affidavit of Audra Schmitt, dated March 30, 2023, will hereinafter be referred to as follows: "Schmitt Aff. at ¶_" or "Schmitt Aff. at Ex. _"). 5. Petitioner was forced to stop performing work as the District's High School Principal when she became severely ill on or about December 12, 2019, due to a hostile work environment and unlawful harassment at the hands of the District's Superintendent of Schools, Matthew Cole, (hereinafter "Cole"). (See Schmitt Aff. at ¶¶ 10, 11, 16, 18-29). At all relevant times herein, Ms. Schmitt's disabling impairments were caused by the reckless behavior of Cole, 2 4862-2288-8026, v. 1 2 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 and by act or omission, were approved and/or condoned by the District and its employees and officials. & 6. Respondent, NYSTRS, is a corporation organized pursuant to the laws of the State of New York. FACTUAL ALLEGATIONS Summary of Petitioner's Career 7. Petitioner began her career as a teacher in New York State, serving as a Social Studies teacher beginning in the year 1989. (See Schmitt Aff. at ¶ 7). 8. Thereafter, until her retirement date of April 20, 2022, Petitioner continuously served in various capacities in teaching and administration in K-12 public education, except for one period of maternity leave. (See Schmitt Aff. at ¶ 7). 9. Just prior to taking the position at the District I was the Executive Director of K-12 Social Studies for the Rochester City School District, which was a secure position and I had excellent standing. Prior to accepting the Executive Director position at RCSD, I was the High School Principal position at the District, Petitioner served in various capacities for the Pittsford Central School District ("Pittsford CSD") and was a well-respected teacher, curriculum-leader, and administrator in that highly acclaimed and top-performing public school district. Ms. Schmitt's took on a new challenge and agreed to work for the District-a small. rural school district-effective in July of 2016. Petitioner left a very secure, tenured position in Pittsford CSD to accept this new, untenured position with the District. (S_ee Schmitt Aff. at ¶ ¶ 12, 14, 16). 3 4862-2288-8026, v. 1 3 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 10. During her employment with the District she received stellar evaluations and was on track to receiving tenure at the District until the trajectory of Ms. Schmitt's career and her personal well-being changed drastically in or around July 2018 when she began to protest the Superintendent's improper conduct, most notably beginning with refusing an overt sexual advance he made on her in July of 2018. (See Schmitt Aff. at f 17). Adverse Employment Actions Attempted by Cole Against Petitioner 11. After months of abhorrent behavior by Cole toward Ms. Schmitt and others, Ms. Schmitt's conflict with Cole intensified. The behavior is detailed in Schmitt Aff. at A. and will not be repeated here in any detail. Specifically, on November 14, 2019, at a meeting at which Petitioner was presiding, High School staff members shared their disappointment with Petitioner regarding Cole's leadership. The staff focused on an impasse that had been reached between Cole teachers' and the union in negotiations for a successor collective bargaining agreement. Staff told Ms. Schmitt that the frustration extended to overall morale. The union was blaming Cole for the negative morale. A staff member shared they were so disgusted with Cole that the union was Rule" Confidence" considering "Work to or a "Vote of No action against Cole. (See Schmitt Aff. at ¶ 21). 12. On November 17, 2019, Ms. Schmitt met with Cole to advise him of the information she had learned. Cole was completely unaware of severity of the problem, he was noticeably shocked, and became furious. He yelled at Ms. Schmitt and demanded she reveal her source. Fearing retaliation for this individual and others at the meeting, Ms. Schmitt refused to unmask the whistleblower. (See Schmitt Aff. at ¶ 22). 4 4862-2288-8026, v. 1 4 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 13. In less than 24 hours from when Ms. Schmitt notified Cole of the potential union teachers' teachers' activity against him, Cole settled the contract with the union, giving the union pay raises he had previously opposed. (See Schmitt Aff. at ¶ 23). 14. Days after the contract settlement, Cole put in place plans to demote Ms. Schmitt, which was blatant retaliation for her refusal to identify individuals who had shared information with her about Cole's professional misconduct. (See Schmitt Aff. at ¶ 24). 15. Cole threatened Ms. Schmitt that she must either accept the demotion or he would deny her tenure as High School Principal and she would be terminated. (S__ee Schmitt Aff. at ¶ 25). 16. Ms. Schmitt's blood pressure spiked, and her doctor took her out of work beginning on or around December 12, 2019 due to hypertension caused by workplace stress and a diagnosis of adjustment disorder with anxiety sparked by the toxic work environment created by Cole's actions and behaviors. (See Schmitt Aff. at ¶ 26). 17. Four days later, on December 16, 2019, Cole took his restructuring plan (including the demotion of Ms. Schmitt) to the Board of Education ("BOE") for approval, while Ms. Schmitt was out on a medical leave of absence. (See Schmitt Aff. at ¶ 27). 18. Ms. Schmitt had only received one formal evaluation in the Fall of 2017, and it was excellent. At no point did Ms. Schmitt receive any negative evaluation or performance review. In fact, she did not receive an evaluation in the 2018-2019 or 2019-2020 school years, though she subsequently (in response to a FOIL request) received a positive evaluation for 2018-2019 that appears to have been completed by Cole, but never provided to her. (Se Schmitt Aff. at ¶ 28). 19. After having virtually no contact with anyone from the District since I left work on December 11, 2019, on March 13, 2020, Ms. Schmitt received a letter from Cole via PDQ delivery 5 4862-2288-8026, v. 1 5 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 service, that she was going to be denied tenure and that her employment was going to be terminated at the Board meeting scheduled for April 20, 2020. Notably, this letter was received in the same week that New York State completely shut down for COVID-19. (See Schmitt Aff. at ¶ 29; Ex. E). Petitioner's Whistleblower Action and Notice of Her Claims to the District's Board of Education 20. With her unlawful termination imminent and scheduled to be approved by the BOE on April 20, 2020, on April 17, 2020, Petitioner personally served upon each member of the BOE a lengthy whistleblower notice disclosing Cole's pervasive, unlawful behaviors. In this letter, Petitioner offered terms to resolve the hostile employment situation that Cole had created with respect to her employment. Ms. Schmitt's main request was for the BOE to refrain from denying her tenure. (See Schmitt Aff. at ¶ 30; Ex. E). 21. Upon receipt of Ms. Schmitt's notification, the BOE immediately stayed Cole's action against Petitioner, halting any action to deny Ms. Schmitt's tenure proposed by Cole, and claimed it would initiate an investigation into the allegations against Cole. Relevant to the instant proceeding, the BOE immediately summoned its insurer and attorneys to negotiate a resolution of the hostile work environment Cole had created for Ms. Schmitt, most likely to avoid the possibility of Ms. Schmitt filing any suit or claim against the District in court or with any administrative agency, such as the Equal Employment Opportunity Commission or the New York State Division of Human Rights. wherein she clearly would have raised colorable claims of sex, race, religious, and disability discrimination, as well as retaliation for engaging in protected activity, which could have been extremely damaging to the District. For example, if the public had learned that Cole had been making openly anti-Semitic remarks, such as, "That teacher looks like a Jew from Auschwitz" or "He's cheap because he is a Jew", there would be an outcry and call for his 6 4862-2288-8026, v. 1 6 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 immediate termination. Further, the actions reported by Ms. Schmitt about Cole should have been reported to the moral character/certification unit of the State Education Department for examination of whether Cole was morally fit to serve as an administrator. (See Schmitt Aff. at ¶ 30; Exs. A). T/re Settlement Agreement 22. Petitioner and the District entered into a confidential settlement agreement ("Agreement") whereby Petitioner would continue in her employment with the District, remain on her sick leave status, and she would receive tenure as the High School Principal, which she deserved. However, since Ms. Schmitt was not cleared to work at the District under Cole, and since the BOE did not entertain removing Cole from the workplace, Ms. Schmitt was required to remain out of work on her sick leave status, although her salary would be reduced by approximately 35%. The fact that NYSTRS completely overlooks the fact that Ms. Schmitt did not have medical clearance to return to the workplace is completely reckless. As part of the Agreement, Ms. Schmitt agreed to retire when first eligible so that the leave of absence would not continue in perpetuity, in return, Ms. Schmitt would be granted retiree health insurance benefits. (See Schmitt Aff. at ¶ 32; Ex. G). 23. The Agreement was executed on May 19, 2020. IL 24. It is important to note that at the time that Ms. Schmitt and the District began to discuss a resolution to the hostile work environment Cole had created for Ms. Schmitt, she was already on an approved, job-protected leave of absence due to a work-related injury. Nothing about the Agreement detracted from or modified Ms. Schmitt's sick leave/ADA/NYSDRL/FMLA protected status. Ms. Schmitt had plenty of sick time available to her at the time she entered into 7 4862-2288-8026, v. 1 7 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 this Agreement. There has never been any allegation made by the District or Respondent that Ms. Schmitt did not or would not have lawfully been eligible to continue to remain out of work on sick leave until her retirement date of April 20, 2022. (See Schmitt Aff. at ¶¶ 36-38; Ex. H). 25. In fact, based on Ms. Schmitt's trauma and diagnosis, Ms. Schmitt's disabling condition would have remained for as long as Cole was the Superintendent. (See Schmitt Aff. at ¶ 39). Although Cole was eventually removed as the District's Superintendent on or about July 15, 2022, for reasons not made public by the District, Cole was still the Superintendent on the effective date of Ms. Schmitt's retirement. Ms. Schmitt was not going to be released by her doctor to work under Cole, because her health conditions would continue to be exacerbated by him. (See Schmitt Aff. at ¶ 36). 26. Unfortunately, though it was requested by Petitioner and her counsel as an accommodation under the ADA and the NYSHRL, the District would not remove Cole as her supervisor, and would not even place Cole on a leave of absence while investigating her whistleblower claims, which would have allowed Ms. Schmitt an accommodation to work. At the time that Ms. Schmitt raised her claims with the Board, and at all other times relevant to this proceeding, the District had approved Ms. Schmitt's medical need to be separated from Cole in the and continued Petitioner's excused leave of absence. (See Schmitt Aff. at ¶¶ 33- workplace, 34; Ex. F). Petitioner's Retirement 27. Pursuant to the terms of the Agreement, Ms. Schmitt, honoring her commitments thereunder, retired effective April 20, 2022. (See Schmitt Aff. at ¶ 41). 8 4862-2288-8026, v. 1 8 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 28. As soon as Ms. Schmitt retired on April 20, 2022, Ms. Schmitt's pension was approved and processed by NYSTRS. Shortly after she retired, she began receiving her full and appropriate pension payments in the amount of approximately $5700 per month (based on NYSTRS's calculation that Petitioner had achieved a full 30 years of service/$68,107 due annually). (See Schmitt Aff. at ¶ 42). 29. On or around June 14, 2022, Jeremey Lonneville ("Lonneville"), who was the Interim Superintendent at the time due to the abrupt termination of Cole's employment for reasons unknown to Ms. Schmitt, voluntarily provided a copy of the Agreement to NYSTRS, despite the confidentiality provisions stated therein. (See Schmitt Aff. at ¶¶ 43-44; Ex. K). 30. As a direct result of Lonneville providing a copy of the Agreement to NYSTRS and his statements to NYSTRS that Ms. Schmitt was not working (rather than stating the truth that she had been placed out of work on an approved sick leave since December 12, 2019), on or around August 1, 2022, Petitioner received a letter from NYSTRS dated July 26, 2022 advising her that NYSTRS had made a preliminary determination reducing her pensionable time allowed from 30 years to 28 years (excluding the period July 1, 2020 through April 20, 2022), thereby reducing her annual payment from $68,107 to $46,273 (a loss of $21,834 annually/$1820 per month). (h Schmitt Aff. at ¶ 45; Ex. L). 31. After receiving the Preliminary Determination, Ms. Schmitt contacted Susan Rossetti ("Rossetti") (the NYSTRS Member and Employer Services representative identified on the letter) to discuss the Preliminary Determination. During their phone conversation, Rossetti shared the following information with Petitioner: (1) The decision to award 30 years of service credit was reversed solely due the Agreement and information supplied by Lonneville; (2) the Agreement was sent to NYSTRS voluntarily by Lonneville in June of 2022, two years after it was 9 4862-2288-8026, v. 1 9 of 19 FILED: ALBANY COUNTY CLERK 03/31/2023 10:47 AM INDEX NO. 902786-23 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/31/2023 effective; (3) if the Preliminary Determination was not overturned the District would receive a large refund from NYSTRS; (4) the pensionable deduction should Ms. Schmitt's serviceable time be reduced would be a 42% reduction in her retirement benefit,; (5) with full service credit (30 years) Ms. Schmitt's monthly pension income was $5650.00, with the reduced service credit it would be dropped to $3850.00 per month; (6) Rossetti indicated the onus was on the District to ask NYSTRS to review the Agreement when it was first signed; (7) the District denied Ms.