PENDLETON — A Starpoint teacher has filed a lawsuit alleging the school district and Superintendent C. Douglas Whelan violated his First Amendment rights.
Michael R. Smith originally filed the lawsuit June 6 in Niagara County, seeking lost wages, compensatory damages and restoration of employment status and standing from the district.
Smith’s attorney, Andrew Fleming, said the district had a negative response to claims Smith made during a school board meeting.
“This is a claim involving the employer retaliating against him for speaking out about health issues and safety issues at the school,” Fleming said.
Starpoint attorney Andrew Freedman said the district sees the situation differently. “We’ve acted in full compliance of the law,” Freedman said. “We see this as a retaliation against the district.”
According to the June 6 complaint, the problems began May 16, 2002, when construction workers applied a chemical sealant called “Kure-n-Seal 25” on the concrete outside the school. Fumes from the sealant came into the school through the ventilation system, reportedly causing Smith and other teachers to feel ill.
The complaint said Smith experienced headaches, dizziness, nausea and sinus irritation as a result. He saw a doctor the next day and was told he had rhinitis and a sinus infection stemming from the previous day’s incident.
Smith, Whelan and fellow teacher David Schopf reportedly met two weeks later to discuss the incident. The complaint said Whelan assured the teachers there wouldn’t be similar incidents in the future, but the two teachers ran into fumes again a month later in the gymnasium.
Smith and Schopf reportedly brought their classes there for gym but didn’t let them go inside after fumes from a chemical sealant being used outside came inside the gym through the ventilation system.
The complaint said Smith attended the district’s Board of Education meeting on June 22, 2002, and spoke publicly about his safety concerns. The comments were reportedly published by local media outlets the next day.
Despite reports of a story in the Union-Sun & Journal, one was not found in the days surrounding the meeting. An archive search of the newspaper also revealed June 22 of that year was a Saturday.
In the meantime, the district was in the middle of a restructuring to separate the sixth grade from grades K-5. On Sept. 3, 2002, Smith allegedly read a letter written by now-retired middle school principal Nancy Orsi that recommended Smith “remain in K-5 due to his obvious lack of desire to be a team player as we create the middle school concept,” Orsi wrote in the complaint. “This was evidenced by his outspoken attitude at a recent Board of Education meeting on the air quality control issue and his lack of participation on the middle school committee.”
Orsi later made an observation of Smith dated Jan. 8, 2003. The complaint said the report contained several “negative and inaccurate” comments on Smith’s performance. Prior to the incident, Smith had been tenured for more than 10 years and taught sixth grade until the 2006-07 school year. The complaint said he had never been subject to disciplinary action prior to May 2002.
Between February and May, Smith filed another air quality complaint after fumes sucked in through the ventilation system entered his classroom. He also expressed his concerns at a meeting with Whelan and other district administrators.
Smith reportedly encountered more fumes the next school year. According to the complaint, exhaust fumes from a gas-powered saw being used in another classroom entered Smith’s room Sept. 8, 2003. He taught in the school auditorium that morning, and filed a formal “Notice of Alleged Safety or Health Hazards” with the state’s Department of Labor later that day.
Two days later, Orsi allegedly put a negative memorandum in Smith’s file for not unloading and returning a car used by a moving company to take items to the middle school building. Smith reportedly told Orsi he could not comply because of physical limitations and because there were fumes in the classroom, the complaint said.
In October, Orsi filed a Public Employee Safety and Health Discrimination Complaint Oct. 9, 2003, with the state Department of Labor, alleging maltreatment by district administrators. The complaint was dismissed five days later.
In his lawsuit, Smith alleged he continued to feel the effects of his outspokenness for years after his complaints. The complaint listed several examples, including being forced to hand in his math test and grade books to Principal James Bryer in March 2005 after Bryer allegedly said he thought some students’ bad grades was because of Smith’s teaching practice. Several letters written by parents unhappy with Smith also were placed in his file by Bryer despite the teacher’s dispute of the content.
Smith said he was “involuntary reassigned” to teach Academic Intervention Services classes for sixth and eighth grade English on June 23, 2006. The following school year, he was ordered to undergo a psychiatric examination by Dr. Brian Joseph, a doctor who was appointed later as the school medical inspector by the school board. Joseph allegedly told Smith he had gotten correspondence from Whelan saying his co-workers were scared of him and didn’t want to work with him.
Three days after the examination, the complaint alleges Smith was verbally reprimanded during a meeting for making in appropriate comments about “a student and his/her family.” A district administrator identified as Tony Panella allegedly told Smith Nov. 9 he should have gone to another school district if the air quality was so poor rather than speaking up at a board meeting.
The US&J could not find an after-hours phone number for Panella.
That same day Whelan delivered a letter to Smith that said he was being put on administrative leave “as a result of inappropriate behavior and communication with another staff member.” Smith returned to the district this spring as the aforementioned AIS teacher.
Phone calls made to Michael Smiths in the region were not returned. Fleming said the complaint “speaks for itself.”
“Mr. Smith’s employment was seriously hampered after he spoke out on
behalf of himself and members of the community at the public hearing,” Fleming said.
Whelan disagreed. “I just think there is no basis whatsoever in this suit,” Whelan said. The superintendent said the district is being represented by Jeremy Colby, an attorney out of the Buffalo-based Webster Szanyi firm. Colby declined to discuss how his firm was retained, but said the district does have an insurance policy through the New York Schools Insurance Reciprocal. Freedman, who is one of the regular attorneys for the district, said the insurance carrier usually handles “these types of claims,” he said.
Colby said the case is still in its early stages. Since its filing, it has been moved to U.S. District Court, Western District of New York.
“At this point, the district intends to vigorously defend this action and it believes that the plaintiff’s claims are unfounded,” Colby said.
A court date has not been set, although records show the case will be heard in front of Judge John T. Curtin.
By Tasha Kates/katest@gnnewspaper.com
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