Preview
INDEX NO. 650621/2014
FILED: NEW YORK COUNTY CLERK 0572272014
NYSCEF DOC. NO. 3 RECEIVED NYSCEF 05/22/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
iitacnnneseneniancedeesabcemeenorsanenmnecendcaecsecsenen,
MARIE-JOSE BERNARD,
Plaintiff, SUMMONS
vs. Index No. 650621/14
NEW YORK FRENCH AMERICAN
CHARTER SCHOOL, CLAIRE ZAGLAUER
and ELIZABETH CROS
Defendant.
So
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve a
notice of appearance on the Plaintiff's attorney within 20 days after the service of this
summons, exclusive of the day of service (or within 30 days after the service is complete
if this summons is not personally delivered to you within the State of New York); and in
case of your failure to appear or answer, judgment will be taken against you by default
for the relief demanded in the complaint.
Dated: May 22, 2014
J. Pat k Di ANCe
Attorni for Marie-Jose Bernard
DELINCE LAW PLLC
30 Broad Street, 14" Floor
New York, NY 10004
Tel: 212-382-3544
Fax: 212-504-8221
DEFENDANT NEW YORK FRENCH AMERICAN CHARTER SCHOOL, to be served upon its counsel
Gordon & Rees, LLP, 90 Broad Street, 23" Floor, New York, New York 10004 and by email.
DEFENDANTS CLAIRE ZAGLAUER AND ELIZABETH CROS to served as determined by process-
server.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
eeecee ee
MARIE-JOSE BERNARD,
Plaintiff, SECOND AMENDED VERIFIED
COMPLAINT
vs.
Index No. 650621/14
NEW YORK FRENCH AMERICAN
CHARTER SCHOOL, CLAIRE ZAGLAUER
and ELIZABETH CROS
Defendants.
Seba ansneciecacsuenduscdenmostnesusadueccemabccsuccusnecesmes
Plaintiff, Marie-Jose Bernard (“MARIE-JOSE BERNARD”), complaining
of the defendants New York French American Charter School, (“NYFACS”), CLAIRE
ZAGLAUER and ELIZABETH CROS, by her attorney, J. Patrick DeLince, alleges as
follows:
INTRODUCTION
1 In this employment discrimination action, MARIE-JOSE BERNARD
charges that NYFACS, Claire Zaglauer and Elizabeth Cros, subjected her to
discrimination based upon her national origin, race, color, and disability all in violation of
the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et
seq.
JURISDICTION
2. The jurisdiction of this Court over the claims set forth in this Verified
Complaint is invoked pursuant to N.Y.C. Admin. Code § 8-101 et seg. and New York
Civil Practice Law and Rules (“CPLR”) § 301 et seq.
3 NYFACS is an employer within the meaning of the New York City
Human Rights Law, N.Y.C. Admin. Code § 8-101 and employs more than four (4)
people.
4 MARIE-JOSE BERNARD hereby alleges that the amount in controversy
exceeds the sum of $25,000, exclusive of interest and costs attendant to the litigation.
5) The jurisdiction over the parties is proper pursuant to CPLR § 301 as the
plaintiff MARIE-JOSE BERNARD resides in the County of Queens, NYFACS maintains
a place of business within New York County, and the acts complained of were committed
within New York County.
6 Venue is properly established in the Supreme Court of New York County
pursuant to CPLR § 503(a) and (c) et seg.
q
A copy of this Verified Complaint has been mailed on the New York City
Commission on Human Rights and the New York City Corporation Counsel, pursuant to
N.Y.C. Admin. Code § 8-502(c).
PARTIES
8 MARIE-JOSE BERNARD is a resident of the County of Queens and has
been at all times relevant hereto.
9 NYFACS is doing business in the State of New York.
10. NYFACS is doing business in the State of New York and maintains an
office at 310 West 120th St., New York, NY 10027.
dt. ELIZABETH CROS is a resident of the County of New York and worked
at NYFACS.
1. CLAIRE ZAGLAUER is a resident of the County of New York and
worked at NYFACS.
FACTUAL BACKGROUND
13: MARIE-JOSE BERNARD is African-American of Haitian descent.
14. MARIE-JOSE BERNARD is fluent in English, Spanish, Haitian Creole,
and French.
15. MARIE-JOSE BERNARD was immersed in and grew up in a French
speaking culture.
16. MARIE-JOSE BERNARD received her A.S. in Liberal Arts from
Kingsborough Community College in 1987.
17. MARIE-JOSE BERNARD received her Bachelor’s in Bilingual Education
graduating Summa Cum Laude and her Masters in Special Education from the City
College of New York.
18. MARIE-JOSE BERNARD is currently furthering her education by
pursuing a professional degree in Administration and Leadership from Long Island
University.
19. MARIE-JOSE BERNARD has New York State certifications to teach
Special Education Birth-2, grade 1-6; Haitian Bilingual Extension, French Bilingual
Extension, Birth to grade 2, and Elementary 1-6.
20. MARIE-JOSE BERNARD has membership in multiple professional
organizations including the National Association of Bilingual Educators, Haitian
Education and Leadership Program (HELP), and the New York State Association of
Bilingual Educators (NYSABE).
21. MARIE-JOSE BERNARD was the Haitian Language Delegate for
NYSABE from 1999-2001.
22. MARIE-JOSE BERNARD was hired by NYFACS in 2010, as a Special
Education Teacher/Coordinator.
23° In addition to this position, MARIE-JOSE BERNARD held positions as
an Early Intervention Specialist for Bilinguals, Inc.; a Field Supervisor for Hunter
College’s ESL Masters’ Program and Fellows Program; a Pre-GED instructor at Bronx
Community College and a Direct for MJB Consulting LLC.
24. On or about the Spring of 2011, Katrine Watkins, the founding Principal
of NYFACS, resigned.
25. As a result of the open vacancy, the Board initially offered MARIE-JOSE
BERNARD the position of Interim Principal for six months.
26. At the time the Board was chaired by Johnny Celestin and Board member
included Dawn Cejas, Fabrice Rouah, Ellis Scope and George Kaldhoun.
27. During the hiring process and even after her appointment, there was a
continuum of Board opposition in the selection of MARIE-JOSE BERNARD in the
leadership role based on national origin, race and/or color.
28. During a May 2011 finance meeting, Board member, Severine Piquet,
stated that MARIE-JOSE BERNARD should be temporarily placed as principal until a
French native was found and that the parents will not stand having a non-French native at
the realm.
29. July Miler, who was an operations and finance person at NYFACS, told
MARIE-JOSE BERNARD that “... you are the right color and the right race because the
school is in Harlem, but the French parents will not allow you to keep your job because
they want a French person in that position .”
30. July Miler had also previously warned Board members and Katrine
Watkins that NYFACS should remove any references to nationality as a hiring preference
description when posting for applicants.
31: Similar concerns were echoed by Deborah Shapiro, who was a consultant
of NYFACS, who warned NYFACS that the job descriptions and qualification
requirements posted on their website and as written in their handbook were
unconstitutional.
32. Despite reservations, upon the recommendations of some of the parents
(including the President of Parent Teacher Organization, Raquel Brown), the Board
ultimately reconsidered and offered MARIE-JOSE BERNARD a one year Principal’s
contract with an option to apply once the search for a new Principal began in February
2012 for the 2012-2013 Principal position, which she accepted. (See, Exhibit “B,” email
from Johnny Celestin to Michele Epstein, dated June 22, 2011, confirming that MARIE-
JOSE BERNARD was offered a one year contract).
33) MARIE-JOSE BERNARD was given a draft contract for the academic
year with a further option to renew for another year.
34. Sometime after her appointment, MARIE-JOSE BERNARD was held out
as NYFACS’s Principal to the parents and to the public.
35: On or about September 6, 2011, MARIE-JOSE BERNARD finalized the
terms and conditions of her appointment with the Board while she continued to work in
her new position.
36. In the preceding weeks leading into months, although MARIE-JOSE
BERNARD was already in her position and the terms and conditions of employment had
been agreed upon, the Board never sent her a copy of the executed contract. (See,
Exhibit “A” attached)
37. MARIE-JOSE BERNARD was continually told by the Board Chair,
Johnny Celestin, that he would send her a copy of the executed contract.
38. MARIE-JOSE BERNARD attended all Board meetings and reported to
the Board during her time as Principal.
39. In her many years at NYFACS, MARIE-JOSE BERNARD enjoyed her
work and took pride in it.
40. Throughout her tenure at NYFACS, MARIE-JOSE BERNARD received
praise and recognition from parents.
41. NYFACS purports to have an Equal Employment Opportunity policy.
42. NYFACS’s mission statement includes that their goal is, “Hiring a diverse
roster of both US and international teachers, interns and administrators that provide
unique insight from their corners of the globe.”
43. Throughout her tenure at NYFACS, MARIE-JOSE BERNARD had
performed her job satisfactorily and her experience and knowledge, including the
command French, were never questioned.
44. During her tenure, Board members continued to advocate that the
Principal should be a Native French speaker from France.
45. Johnny Celestin resigned as Board Chair in the Fall of 2011 and was
replaced by Fabrice Rouah.
46. Following Johnny Celestin’s resignation, the remaining Board (Fabrice
Rouah, Ellis Scope, and Dawn Cejas) harassed MARIE-JOSE BERNARD and
sometimes publicly marginalized her in an attempt to force her out.
47. On October 2011, the Board began openly conducting a search for a new
Principal to replace MARIE-JOSE BERNARD.
48. On December 17, 2011, MARIE-JOSE BERNARD suffered an accident at
the school during a Christmas party.
49. During her rest period at home, she lost consciousness and reinjured
herself resulting in a continuing sick leave.
50. During her sick leave, MARIE-JOSE BERNARD was replaced by Interim
Principal, Mr. Stephen Peters. Stephen Peters is an American non-French speaker.
Sl. At or about January 2012, NYFACS announced that CLAIRE
ZAGLAUER, who had been a parent and PTA President, was appointed as Assistant
Principal and Board member.
52. On several instances, during her past association with the NYFACS,
CLAIRE ZAGLAUER expressed the opinion that the Principal be of French descent and
a Native French speaker. For example, during Board meetings, which CLAIRE
ZAGLAUER attended in June, July, August and September of 2011, CLAIRE
ZAGLAUER stated in front of MARIE-JOSE BERNARD that the French parents will
not allow a black woman to run their children’s school and that they will make sure that
MARIE-JOSE BERNARD is terminated from her employment.
53. On May 30, 2012, NYFACS announced that Edith Boncompain, a Native
French woman was appointed as Principal for the 2012-2013 school year.
54. As a result of Ms. Boncompain’s appointment, MARIE-JOSE BERNARD
was effectively terminated from her position as Principal.
55. Since her accident, and prior to Edith Boncompain’s appointment,
MARIE-JOSE BERNARD repeatedly asked the Board that her terms and conditions of
her employment be honored in relation to her sick leave and the protection of her
position.
56. In MARIE-JOSE BERNARD’s contract, it was stated that she would
receive six weeks of sick leave and could only be removed for cause.
57. Neither of these provisions was ever followed by NYFACS.
58. Upon information and belief, during MARIE-JOSE BERNARD’s sick
leave, the employee handbook was changed by Sybil Swain.
59. Upon information and belief, Sybil Swain further persuaded UNUM, the
insurer for NYFACS, and Victory Partners not to pay MARIE-JOSE BERNARD sick
leave, Worker’s Compensation, or vacation days during her sick leave Sybil Swain has
since been fired from NYFACS.
60. On or about February 2012, ELIZABETH CROS, became a Board
member.
61. Upon information and belief, ELIZABETH CROS, who is a white French
national, expressed during a Board meeting that the French colonies should be kept in
their place.
62. MARIE-JOSE BERNARD understood that comment as a personal affront
since Haiti was a former French colony.
63. Upon information and belief, ELIZABETH CROS sought and tried to
persuade the Board and the prior principal that the school should solely hire white French
nationals as teachers, many of whom did not NYS certification.
64. Upon information and belief, ELIZABETH CROS and CLAIRE
ZAGLAUER had removed Beatrice Yode and Liberatra Kadende as lead teachers, who
were both of African descent.
65. In June 2012, ELIZABETH CROS hired an inexperienced EINY
colleague for the job of school principal for $110,000 plus $20,000 as a consulting fee.
66. Upon information and belief, this individual’s visa application was then
amended to enable her to qualify to work as a principal in the United States.
67. Even though she was highly qualified, MARIE-JOSE BERNARD was
never interviewed, considered, or offered the position of Principal for the 2012-2013
school year either before or after her injury.
AS AND FOR A FIRST CAUSE OF ACTION FOR DISCRIMINATION BASED
ON RACE AND NATI AL ORIGIN
68. MARIE-JOSE BERNARD repeats and realleges each and every allegation
contained in paragraphs 1 through 67 as if fully set forth herein.
69. The defendants’ treatment of MARIE-JOSE BERNARD while she was
employed at NYFACS was motivated by discriminatory intent and was based on
MARIE-JOSE BERNARD’s race and national origin in violation of the NEC Admin.
Code, § 8-107 et seq.
70. MARIE-JOSE BERNARD has and will continue to suffer monetary
damages, irreparable injury, mental anguish and personal and professional humiliation as
the result of NYFACS’S discriminatory practices unless and until this Court grants her
the requested relief.
71. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the
costs of this action together with reasonable attorneys’ fees.
72. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
punitive damages in an amount to be determined at trial.
2. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
compensatory damages.
74. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
injunctive, declaratory and other equitable relief.
10
AS AND FOR A SECOND CAUSE OF ACTION FOR DISCRIMINATION
BASED ON DISABILITY OR PERCEIVED DISABILITY
73: MARIE-JOSE BERNARD repeats and realleges each and every allegation
contained in paragraphs 1 through 67 as if fully set forth herein.
76. The defendants’ treatment of MARIE-JOSE BERNARD while in its
employ was motivated by discriminatory intent and was based on MARIE-JOSE
BERNARD’s disability or perceived disability in violation of N.Y.C. Admin. Code § 8-
107 et seq.
77. MARIE-JOSE BERNARD has and will continue to suffer monetary
damages, irreparable injury, mental anguish and personal and professional humiliation as
the result of NYFACS’s discriminatory practices unless and until this Court grants her
the requested relief.
78. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the
costs of this action together with reasonable attorneys’ fees.
79. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
punitive damages in an amount to be determined at trial.
80. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
compensatory damages.
11
AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH
OF AN EXPRESS CONTRACT
76. MARIE-JOSE BERNARD repeats and realleges each and every allegation
contained in paragraphs 1 through 80 as if fully set forth herein.
TY, The Employment Contract also provides an effective date of July 1, 2011
and a termination date of June 30, 2012 with a3 year extension option.
78. The Employment Contract is clear and unequivocal as to the manner in
which it can be terminated or not automatically renewed; to wit, the employer, NYFACS,
must provide MARIE-JOSE BERNARD with written notice of (a) the Employment
Contract’s termination or (b) the Employment Contract’s non-renewal or extension.
79. No written notice was provided by NYFACS to MARIE-JOSE
BERNARD that the Employment Contract had been terminated or that it would not be
renewed.
80. In addition, the Employment Contract provides that any modification must
be in writing signed by the parties to be charged.
81. MARIE-JOSE BERNARD has rendered work, labor and services for the
benefit of NYFACS, all in accordance with the Employment Contract.
82. At all times relevant hereto, MARIE-JOSE BERNARD continued
working and had been ready, willing, and able to render whatever services were required
of her under the Employment Contract and as such, MARIE-JOSE BERNARD has never
breached the Employment Contract.
83. MARIE-JOSE BERNARD has and will continue to suffer monetary
damages, irreparable injury, mental anguish and personal and professional humiliation as
12
the result of NYFACS’s breach of contract unless and until this Court grants her the
requested relief.
84. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the
costs of this action together with reasonable attorneys’ fees.
85. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
compensatory damages.
AS AND FOR THE FOURTH CAUSE OF ACTION FOR
QUANTUM MERUIT
86. MARIE-JOSE BERNARD repeats and reiterates each and every allegation
contained in paragraphs 1 through 85 above with the same force and effect as though
more fully set further herein.
87. MARIE-JOSE BERNARD performed her employment services in good
faith.
88. NYFACS accepted those services.
89. MARIE-JOSE BERNARD reasonably expected compensation for those
services and that the defendants are liable to her for those damages.
91. MARIE-JOSE BERNARD suffered damages, and is entitled to the
reasonable value of the services rendered.
92. As a result of the foregoing, MARIE-JOSE BERNARD has and will
continue to suffer monetary damages, irreparable injury, mental anguish and personal and
professional humiliation as the result of NYFACS’s actions unless and until this Court
grants her the requested relief.
13
93. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the
costs of this action together with reasonable attorneys’ fees.
94. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
compensatory damages.
95: As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
equitable relief.
AS AND FOR A FIFTH CAUSE OF ACTION FOR UNJUST ENRICHMENT
UNDER THE NEW YORK COMMON LAW
96. MARIE-JOSE BERNARD repeats and realleges each and every allegation
contained in paragraphs 1 through 95 above with the same force and effect as though
more fully set further herein.
97. NYFACS has been unjustly enriched by MARIE-JOSE BERNARD’s
services to NYFACS.
98. MARIE-JOSE BERNARD conferred a benefit upon NYFACS by
providing services.
99. NYFACS has unjustly retained the benefit of the services provided by
MARIE-JOSE BERNARD without adequately compensating her, and equity and good
conscience require NYFACS to make restitution.
100. MARIE-JOSE BERNARD suffered damages and is entitled to just
compensation for the benefits her service provided to NYFACS.
101. As a result of the foregoing, MARIE-JOSE BERNARD has and will
continue to suffer monetary damages, irreparable injury, mental anguish and personal and
14
professional humiliation as the result of NYFACS’s actions unless and until this Court
grants her the requested relief.
102. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the
costs of this action together with reasonable attorneys’ fees.
103. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
compensatory damages.
104. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to
equitable relief.
WHEREFORE, MARIE-JOSE BERNARD demands judgment against
NYFACS, Claire Zaglauer and Elizabeth Cros:
a. Awarding MARIE-JOSE BERNARD the costs of this action together with
reasonable attorneys’ fees;
b directing that the defendants pay to MARIE-JOSE BERNARD
compensatory damages (including, but not limited to, emotional distress damages as
permitted by statute for the first two causes of action) in an amount to be determined by a
jury on each cause of action; and
Cc. directing that the defendants pay to MARIE-JOSE BERNARD
compensatory damages for the third, fourth and fifth causes of action; and
d directing the defendants to pay punitive damages to MARIE-JOSE
BERNARD on first two causes of action stated herein in an amount to be determined by
the jury.
15
JURY DEMAND
MARIE-JOSE BERNARD hereby demands a trial by jury on all claims so triable.
Dated: May 22, 2014
New York, New York
ours truly,
J. Patyick D ince
Attoyney fo# Plaintiff
DEBLINCE/LAW PLLC
30 Bro St., 14th Floor
New York, NY 10004
Tel: 212-382-3544
Fax: 212-504-8221
16
INDIVIDUAL VERIFICATION
STATE OF NEW YORK )
COUNTY OF NEW YORK )
MARIE-JOSE BERNARD, being duly sworn, states:
Tam the plaintiff in this action. The foregoing complaint is true to my own knowledge,
>
except as to matters therein stated to be alleg : on information and-belie! and as to those
0)
matters I believe it to be true.
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peek eet
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W |ARTE-JOSE
Sworn to before me on this
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Jy O2DE 6:8 106E
4
jotary’ Public
Exhibit A
Principal Employment Agreement
THIS AGREEMENT (“Agreement”) is made and entered into this day of
, 2010 by and between The New York French American
Charter School, (“the School”) and Marie-Jose Bernard, (the “Principal”).
I PRELIMINARY STATEMENT
Whereas, the Board of Trustees (the “Board”) of the School believes an
outstanding principal is a key to achieving the mission of the School;
Whereas, the Board believes that the School’s curricula will have a
beneficial, positive impact on the academic achievement of the School’s
children;
Whereas, the Board intend to support the Principal with training and
resources of high quality; and
Whereas, the Board desires that the Principal undertake, and the
Principal agrees to undertake, the role of the educational and administrative
leader at the School and to fully support the philosophy, mission and
curriculum of the School and to work with the staff, parents and children of
the School, as well as the Board, to achieve these ends.
NOW THEREFORE, in consideration of the foregoing, the mutual
promises herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
Il. DUTIES AND RESPONSIBILITIES
For and during the term of this Agreement, the Principal shall faithfully
and dutifully act for the School and its students in the position of educational
and administrative leader and shall devote all required time, attention and
energies to that position, including, but not limited to, performing the following
duties consistent with the School’s Charter:
1 motivate, supervise and evaluate all instructional and non-
instructional staff to carry out the vision of the School by organizing
an environment to hold staff accountable and actively coach
instructional staff for improvement in classroom practice and
managing the business and operational administration of the School
within budget to ensure the School’s financial viability;
ensure continual improvement for students, teachers and the School
by assisting the School’s instructional staff in instructing and
implementing the School’s curriculum, code of conduct, and other
academic or personal development lessons as mandated by the Board
including conducting at least two (2) formal written evaluations for
each returning teacher (and three (3) for each new teacher to the
School);
direct the staff, School functions and programs, student activities and
management and building care;
demonstrate mastery of current curricular initiatives, approaches to
content and differentiated design;
understand and articulate effective instructional strategies,
implement these strategies and evaluate their effectiveness;
facilitate the analysis and alignment of assessment tools with the
curriculum and ensure that the teachers are using data to drive and
inform instructional planning and delivery;
organize the School around instructional priorities and focus School
culture on activities that will leverage student learning and
achievement;
use student performance data for instructional decision making and
provide structure for looking at student work to identify instructional
next steps for teachers and students;
encourage and model to staff members successful classroom
approaches to teaching and learning;
10 interpret and analyze multiple sources of national, state and
classroom level student performance data to make decisions;
11 provide formal and informal leadership opportunities for staff and
encourage them to exercise appropriate authority in those areas
for which they are held accountable;
12 model, encourage and reinforce efficacy in individuals to produce
results and persevere even when internal and external difficulties
interfere with the achievement of strategic goals;
13 generate a sense of urgency to achieve the School’s academic goals
by inspiring others in this pursuit;
14 communicate, in a timely and professional manner, with parents;
School; community organizations; local, state and federal
education agencies; and other stakeholders in the School;
15 work a 12-month year, subject to Section III of this Agreement.
Workdays include, without limitation, face-to-face days with
students, faculty and departmental meetings; site committees;
curriculum committees; staff development; staff interviews; parent
conferences; board meetings; open school meetings; and student
conferences. It is expected that the Principal will devote at least
forty (40) hours each week to his/her duties and professional
responsibilities, not including mandatory attendance at weekly
faculty meetings and at open-school meetings;
16 prepare thoroughly for his/her responsibilities, meetings and all
other School functions as set forth herein or as otherwise required;
17, abide by the guidelines and principles set forth in the School’s
Employee Manual, as amended from time to time (the “Employee
Manual”) and all other school manuals and procedures, including,
without limitation, the Principal’s Manual, the Finance and
Operations Manual and the Human Resource Manual, as may be
amended from time to time;
18 attend all Board meetings, parent conferences, School activities,
and professional development workshops, including those
workshops held before the beginning and after the end of the
school year;
19 implement a variety of practices, procedures and structures
(macro and micro) to engage the entire School community in
feedback that is focused on improving performance.
20 perform other duties and responsibilities as may be assigned by
the Board of Trustees; and
21 cooperate fully with any distinguished educator appointed by the
New York State Commissioner of Education pursuant to Chapter
57 of the New York Laws of 2007, to the extent such cooperation
does not interfere with the Principal’s performance of his or her
regular duties.
The Principal shall report directly to the Board of Trustees and shall also
perform such further duties as are incidental or implied from the foregoing,
consistent with the background, training and qualifications of the Principal, or
as may be reasonably delegated as being in the best interests of the School by
the Board.
During the term of this Agreement, the Principal will not engage in any
other business activity, regardless of whether such activity is pursued for
profit, gain, or other pecuniary advantage without first obtaining the written
permission of the Board. The Principal is not prohibited from making personal
investments in any other businesses provided those investments do not require
active involvement in the operation of said companies and do not create, in the
judgment of the Board, a conflict of interest, or the appearance of a conflict of
interest, with the School.
During the term of this Agreement, the Principal shall not engage in any
acts of dishonesty or moral turpitude that, in the judgment of the Board, are
detrimental to the School, the Board, and shall not engage in any other act or
omission which, in the judgment of the Board, may subject the School, the
Board or any of their employees or representatives to public disrespect,
scandal, ridicule, sanctions by governmental authority or to civil liability to the
employees or representatives of the Board or the School or to third parties.
During the term of this Agreement, the Principal agrees to notify the
Human Resources representative and/or the Board within twenty-four hours of
being arrested or charged with any local, state or federal crime, infraction,
violation, misdemeanor or other offense.
Ill. ABSENCES, LEAVES, VACATIONS & HOLIDAYS
The Principal’s regular attendance each day is a critical element of the
School’s mission and the student’s educational success. Unexcused absences
are a detriment to the students and are to be taken only as truly necessary.
Holidays, leaves and vacations are offered and are to be taken during days the
School is not in session, excluding professional development days or sessions,
the week following the school year, and the thirteen business days preceding
the school year. School reports, documents and materials required or
requested by the Board or any governmental authority, including, the School’s
annual accountability report, must be satisfactorily completed by the Principal
before vacation can be taken by the Principal. The Principal shall inform HR
representative of any day that he/she is out or will be out of the building,
excluding those leaves or vacations scheduled in advance.
IV. EVALUATION & SCHOOL-WIDE PERFORMANCE TARGETS
The parties agree that evaluations are an important part of training, and
an opportunity to improve the educational results of the School for the
children’s benefit. The Principal shall be subject to observation and oral and
written evaluations by the Board as an ongoing activity, but minimally on a
quarterly and annual basis.
If the Principal receives any unsatisfactory evaluation, appropriate
professional development may, in the discretion of the Board, be offered, and
further observations may be scheduled. Nothing in this Section or in the
4
contents of any evaluation shall limit the School’s right to terminate the
Principal’s employment under this Agreement in accordance with Section VII
below.
The parties agree that for the 2010-2011 school year, the Principal will
be evaluated, in part, against whether the School satisfies the following
academic and non-academic performance targets:
Academic Performance Targets:
1. Charter:
Satisfy the goals section as set forth in the School’s Charter.
2 Third Through Fifth Grade New York State Exam:
75% of the students in each of the School’s third through sixth grades
shall score in performance Levels 3 or 4 on each of the third grade
New York State mathematics and English Language Arts exams.
Yearly Progres
75% of students demonstrate one year of progress as determined by
the New York City Department of Education.
Non-Academic Performance Targets:
1 manage the business, operational and financial administration of the
School within budget to ensure the School’s financial viability;
maintain full enrollment (e.g., at least 98% of all seats must be filled
as measured in FTEs) for the school year
maintain average daily student attendance at or above 94%
maintain a safe and orderly school environment as evidenced by the
School Safety Plan and its frequent update
receive a positive response to each annual survey item on the Parent
Survey from at least 80% of all parents
timely and satisfactory completion of administrative reports and
documents and filings
If the Principal receives any unsatisfactory evaluation, appropriate
professional development may, in the discretion of the Board, be offered, and
further observations may be scheduled. Nothing in this Section or in the
contents of any evaluation shall limit the School’s right to terminate the
Principal’s employment under this Agreement in accordance with Section VII of
this Agreement.
Vv. COMPENSATION AND BENEFITS
Salary
Beginning on the Effective Date (as defined below) and continuing until
the Termination Date (as defined below), unless this Agreement is terminated
earlier in accordance with Section VII(1)(i), (2)(a) or (b), the Principal shall
receive base salary at an annual rate of $100,000 for the school year, the
Principal shall be eligible for a salary increase up to [four] [4%] to be
determined by the Board.
Salary is payable in bi-weekly installments, consistent with the School’s
payroll practices and Human Resource Manual, as may be amended from time
to time by the Board. Salary shall be subject to all applicable employment
withholding taxes.
Benefits
This Agreement provides a brief summary below of the benefits presently
offered by the School to the Principal, for illustrative purposes only. The
benefits may change at any time at the sole discretion of the Board without
notice. More detailed descriptions of the benefits can be found in the Employee
Manual and in the respective summary plan descriptions and plan documents
to be provided to the Principal. If the terms described in this summary conflict
with the terms of any actual benefit plan document, the terms of the benefit
document will apply.
1. Medical Plan
The Principal shall receive health insurance, dental insurance, and eye
care discounts if offered by the School.
2. Retirement Plan
A 401(k) plan.
3. Workers Compensation
The Principal is eligible for the statutory benefits of Workers
Compensation under a program financed by the School.
4. Short-Term Disability
The School will insure the Principal with short-term disability for
disabilities up to 26 weeks.
5. Performance-Retention Bonus
An annual performance-retention bonus, in addition to base salary, may
be paid to the Principal, upon the Leadership Committee’s
recommendation to the Board and the Board’s approval thereof, to
recognize the Principal for fulfilling her roles and responsibilities and
satisfying the performance targets. The Board has the absolute right to
determine at its complete discretion if the Principal shall receive a bonus,
the amount of the bonus and the date on which such bonus shall be
awarded. The allocation of any bonus shall occur after the dissemination
of all student proficiency examination results, and the review and
analysis of examination results by the Board.
VI. EFFECTIVE DATE AND EXTENSION
Subject to final approval of the Board and the satisfactory completion of
all background and fingerprint checks, this Agreement shall become effective
on the date (the “Effective Date”) noted on the final page of this Agreement, and
unless terminated by either party pursuant to the terms herein, shall continue
in full force and effect until the date of termination (the “Termination Date”)
noted on the final page of this Agreement.
The School shall have the option to extend this Agreement for an
additional three-year term, commencing July 1, 2012 and terminating June 30,
2015, provided that the Principal shall have met all obligations contained in
this Agreement. The School shall provide the Principal with notice of
extension, no sooner than three months prior to the Agreement’s Termination
Date (as defined below) and no later than nine (30) days prior to the
Termination Date.
VII. TERMINATION
L Early Termination of the Employment Term. The Employment
Term shall end upon the earliest to occur of: (i) the death of the Principal,
(ii) a Termination Due to Disability (defined below) by the School, (iii) a
Termination for Cause (defined below) by the School, (iv) a Termination
Without Cause (defined below) by the School or (v) ninety (90) days after
the giving of written notice of termination by the Principal to the Board.
2. Definitions: For purposes of this Agreement
a) “Termination for Cause” shall mean, as determined in the sole
judgment of the School, a termination of the Principal’s
employment by the School due to: (i) the Principal’s conviction of a
felony or the entering by the Principal of a plea of nolo contendere
to a felony offense; (ii) acts of dishonesty or moral turpitude by the
Principal that are detrimental to the School; (iii) a refusal or failure
by the Principal to perform his or her duties, responsibilities or
obligations pursuant to the terms hereof, other than due to
physical or mental illness (provided that the Principal shall have
been reasonably informed of the School’s view of his or her refusal
or failure and shall have been given an opportunity to cure such
refusal or failure); (iv) conduct by the Principal which is materially
injurious to the School, financially or otherwise; (v) the disclosure
or use of confidential information of the School, other than as
required in the performance of the Principal’s duties. or (vi) or any
other act or omission which subjects the School or any of its
employees, representatives, or affiliates to public disrespect,
scandal, or ridicule.
b) “Termination due to Disability’ means a termination of the
Principal’s employment by the School because the Principal has
been incapable of substantially fulfilling the positions, duties,
responsibilities and obligations set forth in this Agreement because
of physical, mental or emotional incapacity resulting from injury,
sickness or disease for a period of (i) at least four consecutive
months or (ii) more than six months in any twelve month period.
Any question as to the existence, extent or potentiality of the
Principal’s disability upon which the Principal and the School
cannot agree shall be determined by a qualified, independent
physician agreed upon by the School and the Principal. If the
parties cannot agree on an acceptable physician, the dispute shall
be heard by a third physician chosen by a physician chosen by the
Executive and a physician chosen by the School. The
determination of such physician shall be final and conclusive for
all purposes of this Agreement. The Principal or his or her legal
representative or any adult member of his or her immediate family
shall have the right to present to such physician such information
and arguments as to the Principal’s disability as he, she or they
deem appropriate, including the opinion of the Principal’s personal
physician.
c) “Termination Without Cause” means any termination of the
Principal’s employment by the School other than: (i) a termination
due to Disability or (ii) a Termination for Cause.
In the event of a Termination Without Cause, the Principal shall receive a
severance payment of in an amount equal to the remaining weeks of the
Principal’s regular base salary under this Agreement, payable in bi-weekly
installments in accordance with the School’s regular payroll practices, provided
that the Principal executes a general release in a form acceptable to the School.
VIII. ADDITIONAL AGREEMENTS
The Principal and the School agree:
(a) That any deductions authorized by law, policy or the agreement of
the Principal shall be made from the bi-weekly installments of the
salary due the Principal.
(b) That notwithstanding any specification or reference herein, this
Agreement is subject to all applicable laws of the federal, state and
local governments, and all duly adopted policies, rules and
regulations of the School, as are in effect at any time during the
term of this Agreement.
(c) That this Agreement and the obligations of the School, the Board
are conditioned upon the approval of all background and
fingerprint checks of the Principal by the Board , which may be
conducted from time to time before or during the Principal’s
employment with the School.
(d) That this Agreement and the obligations of the School, the Board
are conditioned upon the School actually being and remaining in
operation for the term of the Agreement.
Ix. ARBITRATION
The Principal agrees to submit to arbitration before the American
Arbitration Association, pursuant to its rules for employment disputes all
disputes or controversies between Principal and the School (or between
Principal and any person or entity employed by or affiliated with the School,
including the Board ) a
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INDEX NO. 650621/2014 FILED: NEW YORK COUNTY CLERK 0572272014 NYSCEF DOC. NO. 3 RECEIVED NYSCEF 05/22/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK iitacnnneseneniancedeesabcemeenorsanenmnecendcaecsecsenen, MARIE-JOSE BERNARD, Plaintiff, SUMMONS vs. Index No. 650621/14 NEW YORK FRENCH AMERICAN CHARTER SCHOOL, CLAIRE ZAGLAUER and ELIZABETH CROS Defendant. So TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiff's attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: May 22, 2014 J. Pat k Di ANCe Attorni for Marie-Jose Bernard DELINCE LAW PLLC 30 Broad Street, 14" Floor New York, NY 10004 Tel: 212-382-3544 Fax: 212-504-8221 DEFENDANT NEW YORK FRENCH AMERICAN CHARTER SCHOOL, to be served upon its counsel Gordon & Rees, LLP, 90 Broad Street, 23" Floor, New York, New York 10004 and by email. DEFENDANTS CLAIRE ZAGLAUER AND ELIZABETH CROS to served as determined by process- server. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK eeecee ee MARIE-JOSE BERNARD, Plaintiff, SECOND AMENDED VERIFIED COMPLAINT vs. Index No. 650621/14 NEW YORK FRENCH AMERICAN CHARTER SCHOOL, CLAIRE ZAGLAUER and ELIZABETH CROS Defendants. Seba ansneciecacsuenduscdenmostnesusadueccemabccsuccusnecesmes Plaintiff, Marie-Jose Bernard (“MARIE-JOSE BERNARD”), complaining of the defendants New York French American Charter School, (“NYFACS”), CLAIRE ZAGLAUER and ELIZABETH CROS, by her attorney, J. Patrick DeLince, alleges as follows: INTRODUCTION 1 In this employment discrimination action, MARIE-JOSE BERNARD charges that NYFACS, Claire Zaglauer and Elizabeth Cros, subjected her to discrimination based upon her national origin, race, color, and disability all in violation of the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq. JURISDICTION 2. The jurisdiction of this Court over the claims set forth in this Verified Complaint is invoked pursuant to N.Y.C. Admin. Code § 8-101 et seg. and New York Civil Practice Law and Rules (“CPLR”) § 301 et seq. 3 NYFACS is an employer within the meaning of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 and employs more than four (4) people. 4 MARIE-JOSE BERNARD hereby alleges that the amount in controversy exceeds the sum of $25,000, exclusive of interest and costs attendant to the litigation. 5) The jurisdiction over the parties is proper pursuant to CPLR § 301 as the plaintiff MARIE-JOSE BERNARD resides in the County of Queens, NYFACS maintains a place of business within New York County, and the acts complained of were committed within New York County. 6 Venue is properly established in the Supreme Court of New York County pursuant to CPLR § 503(a) and (c) et seg. q A copy of this Verified Complaint has been mailed on the New York City Commission on Human Rights and the New York City Corporation Counsel, pursuant to N.Y.C. Admin. Code § 8-502(c). PARTIES 8 MARIE-JOSE BERNARD is a resident of the County of Queens and has been at all times relevant hereto. 9 NYFACS is doing business in the State of New York. 10. NYFACS is doing business in the State of New York and maintains an office at 310 West 120th St., New York, NY 10027. dt. ELIZABETH CROS is a resident of the County of New York and worked at NYFACS. 1. CLAIRE ZAGLAUER is a resident of the County of New York and worked at NYFACS. FACTUAL BACKGROUND 13: MARIE-JOSE BERNARD is African-American of Haitian descent. 14. MARIE-JOSE BERNARD is fluent in English, Spanish, Haitian Creole, and French. 15. MARIE-JOSE BERNARD was immersed in and grew up in a French speaking culture. 16. MARIE-JOSE BERNARD received her A.S. in Liberal Arts from Kingsborough Community College in 1987. 17. MARIE-JOSE BERNARD received her Bachelor’s in Bilingual Education graduating Summa Cum Laude and her Masters in Special Education from the City College of New York. 18. MARIE-JOSE BERNARD is currently furthering her education by pursuing a professional degree in Administration and Leadership from Long Island University. 19. MARIE-JOSE BERNARD has New York State certifications to teach Special Education Birth-2, grade 1-6; Haitian Bilingual Extension, French Bilingual Extension, Birth to grade 2, and Elementary 1-6. 20. MARIE-JOSE BERNARD has membership in multiple professional organizations including the National Association of Bilingual Educators, Haitian Education and Leadership Program (HELP), and the New York State Association of Bilingual Educators (NYSABE). 21. MARIE-JOSE BERNARD was the Haitian Language Delegate for NYSABE from 1999-2001. 22. MARIE-JOSE BERNARD was hired by NYFACS in 2010, as a Special Education Teacher/Coordinator. 23° In addition to this position, MARIE-JOSE BERNARD held positions as an Early Intervention Specialist for Bilinguals, Inc.; a Field Supervisor for Hunter College’s ESL Masters’ Program and Fellows Program; a Pre-GED instructor at Bronx Community College and a Direct for MJB Consulting LLC. 24. On or about the Spring of 2011, Katrine Watkins, the founding Principal of NYFACS, resigned. 25. As a result of the open vacancy, the Board initially offered MARIE-JOSE BERNARD the position of Interim Principal for six months. 26. At the time the Board was chaired by Johnny Celestin and Board member included Dawn Cejas, Fabrice Rouah, Ellis Scope and George Kaldhoun. 27. During the hiring process and even after her appointment, there was a continuum of Board opposition in the selection of MARIE-JOSE BERNARD in the leadership role based on national origin, race and/or color. 28. During a May 2011 finance meeting, Board member, Severine Piquet, stated that MARIE-JOSE BERNARD should be temporarily placed as principal until a French native was found and that the parents will not stand having a non-French native at the realm. 29. July Miler, who was an operations and finance person at NYFACS, told MARIE-JOSE BERNARD that “... you are the right color and the right race because the school is in Harlem, but the French parents will not allow you to keep your job because they want a French person in that position .” 30. July Miler had also previously warned Board members and Katrine Watkins that NYFACS should remove any references to nationality as a hiring preference description when posting for applicants. 31: Similar concerns were echoed by Deborah Shapiro, who was a consultant of NYFACS, who warned NYFACS that the job descriptions and qualification requirements posted on their website and as written in their handbook were unconstitutional. 32. Despite reservations, upon the recommendations of some of the parents (including the President of Parent Teacher Organization, Raquel Brown), the Board ultimately reconsidered and offered MARIE-JOSE BERNARD a one year Principal’s contract with an option to apply once the search for a new Principal began in February 2012 for the 2012-2013 Principal position, which she accepted. (See, Exhibit “B,” email from Johnny Celestin to Michele Epstein, dated June 22, 2011, confirming that MARIE- JOSE BERNARD was offered a one year contract). 33) MARIE-JOSE BERNARD was given a draft contract for the academic year with a further option to renew for another year. 34. Sometime after her appointment, MARIE-JOSE BERNARD was held out as NYFACS’s Principal to the parents and to the public. 35: On or about September 6, 2011, MARIE-JOSE BERNARD finalized the terms and conditions of her appointment with the Board while she continued to work in her new position. 36. In the preceding weeks leading into months, although MARIE-JOSE BERNARD was already in her position and the terms and conditions of employment had been agreed upon, the Board never sent her a copy of the executed contract. (See, Exhibit “A” attached) 37. MARIE-JOSE BERNARD was continually told by the Board Chair, Johnny Celestin, that he would send her a copy of the executed contract. 38. MARIE-JOSE BERNARD attended all Board meetings and reported to the Board during her time as Principal. 39. In her many years at NYFACS, MARIE-JOSE BERNARD enjoyed her work and took pride in it. 40. Throughout her tenure at NYFACS, MARIE-JOSE BERNARD received praise and recognition from parents. 41. NYFACS purports to have an Equal Employment Opportunity policy. 42. NYFACS’s mission statement includes that their goal is, “Hiring a diverse roster of both US and international teachers, interns and administrators that provide unique insight from their corners of the globe.” 43. Throughout her tenure at NYFACS, MARIE-JOSE BERNARD had performed her job satisfactorily and her experience and knowledge, including the command French, were never questioned. 44. During her tenure, Board members continued to advocate that the Principal should be a Native French speaker from France. 45. Johnny Celestin resigned as Board Chair in the Fall of 2011 and was replaced by Fabrice Rouah. 46. Following Johnny Celestin’s resignation, the remaining Board (Fabrice Rouah, Ellis Scope, and Dawn Cejas) harassed MARIE-JOSE BERNARD and sometimes publicly marginalized her in an attempt to force her out. 47. On October 2011, the Board began openly conducting a search for a new Principal to replace MARIE-JOSE BERNARD. 48. On December 17, 2011, MARIE-JOSE BERNARD suffered an accident at the school during a Christmas party. 49. During her rest period at home, she lost consciousness and reinjured herself resulting in a continuing sick leave. 50. During her sick leave, MARIE-JOSE BERNARD was replaced by Interim Principal, Mr. Stephen Peters. Stephen Peters is an American non-French speaker. Sl. At or about January 2012, NYFACS announced that CLAIRE ZAGLAUER, who had been a parent and PTA President, was appointed as Assistant Principal and Board member. 52. On several instances, during her past association with the NYFACS, CLAIRE ZAGLAUER expressed the opinion that the Principal be of French descent and a Native French speaker. For example, during Board meetings, which CLAIRE ZAGLAUER attended in June, July, August and September of 2011, CLAIRE ZAGLAUER stated in front of MARIE-JOSE BERNARD that the French parents will not allow a black woman to run their children’s school and that they will make sure that MARIE-JOSE BERNARD is terminated from her employment. 53. On May 30, 2012, NYFACS announced that Edith Boncompain, a Native French woman was appointed as Principal for the 2012-2013 school year. 54. As a result of Ms. Boncompain’s appointment, MARIE-JOSE BERNARD was effectively terminated from her position as Principal. 55. Since her accident, and prior to Edith Boncompain’s appointment, MARIE-JOSE BERNARD repeatedly asked the Board that her terms and conditions of her employment be honored in relation to her sick leave and the protection of her position. 56. In MARIE-JOSE BERNARD’s contract, it was stated that she would receive six weeks of sick leave and could only be removed for cause. 57. Neither of these provisions was ever followed by NYFACS. 58. Upon information and belief, during MARIE-JOSE BERNARD’s sick leave, the employee handbook was changed by Sybil Swain. 59. Upon information and belief, Sybil Swain further persuaded UNUM, the insurer for NYFACS, and Victory Partners not to pay MARIE-JOSE BERNARD sick leave, Worker’s Compensation, or vacation days during her sick leave Sybil Swain has since been fired from NYFACS. 60. On or about February 2012, ELIZABETH CROS, became a Board member. 61. Upon information and belief, ELIZABETH CROS, who is a white French national, expressed during a Board meeting that the French colonies should be kept in their place. 62. MARIE-JOSE BERNARD understood that comment as a personal affront since Haiti was a former French colony. 63. Upon information and belief, ELIZABETH CROS sought and tried to persuade the Board and the prior principal that the school should solely hire white French nationals as teachers, many of whom did not NYS certification. 64. Upon information and belief, ELIZABETH CROS and CLAIRE ZAGLAUER had removed Beatrice Yode and Liberatra Kadende as lead teachers, who were both of African descent. 65. In June 2012, ELIZABETH CROS hired an inexperienced EINY colleague for the job of school principal for $110,000 plus $20,000 as a consulting fee. 66. Upon information and belief, this individual’s visa application was then amended to enable her to qualify to work as a principal in the United States. 67. Even though she was highly qualified, MARIE-JOSE BERNARD was never interviewed, considered, or offered the position of Principal for the 2012-2013 school year either before or after her injury. AS AND FOR A FIRST CAUSE OF ACTION FOR DISCRIMINATION BASED ON RACE AND NATI AL ORIGIN 68. MARIE-JOSE BERNARD repeats and realleges each and every allegation contained in paragraphs 1 through 67 as if fully set forth herein. 69. The defendants’ treatment of MARIE-JOSE BERNARD while she was employed at NYFACS was motivated by discriminatory intent and was based on MARIE-JOSE BERNARD’s race and national origin in violation of the NEC Admin. Code, § 8-107 et seq. 70. MARIE-JOSE BERNARD has and will continue to suffer monetary damages, irreparable injury, mental anguish and personal and professional humiliation as the result of NYFACS’S discriminatory practices unless and until this Court grants her the requested relief. 71. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the costs of this action together with reasonable attorneys’ fees. 72. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to punitive damages in an amount to be determined at trial. 2. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to compensatory damages. 74. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to injunctive, declaratory and other equitable relief. 10 AS AND FOR A SECOND CAUSE OF ACTION FOR DISCRIMINATION BASED ON DISABILITY OR PERCEIVED DISABILITY 73: MARIE-JOSE BERNARD repeats and realleges each and every allegation contained in paragraphs 1 through 67 as if fully set forth herein. 76. The defendants’ treatment of MARIE-JOSE BERNARD while in its employ was motivated by discriminatory intent and was based on MARIE-JOSE BERNARD’s disability or perceived disability in violation of N.Y.C. Admin. Code § 8- 107 et seq. 77. MARIE-JOSE BERNARD has and will continue to suffer monetary damages, irreparable injury, mental anguish and personal and professional humiliation as the result of NYFACS’s discriminatory practices unless and until this Court grants her the requested relief. 78. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the costs of this action together with reasonable attorneys’ fees. 79. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to punitive damages in an amount to be determined at trial. 80. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to compensatory damages. 11 AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF AN EXPRESS CONTRACT 76. MARIE-JOSE BERNARD repeats and realleges each and every allegation contained in paragraphs 1 through 80 as if fully set forth herein. TY, The Employment Contract also provides an effective date of July 1, 2011 and a termination date of June 30, 2012 with a3 year extension option. 78. The Employment Contract is clear and unequivocal as to the manner in which it can be terminated or not automatically renewed; to wit, the employer, NYFACS, must provide MARIE-JOSE BERNARD with written notice of (a) the Employment Contract’s termination or (b) the Employment Contract’s non-renewal or extension. 79. No written notice was provided by NYFACS to MARIE-JOSE BERNARD that the Employment Contract had been terminated or that it would not be renewed. 80. In addition, the Employment Contract provides that any modification must be in writing signed by the parties to be charged. 81. MARIE-JOSE BERNARD has rendered work, labor and services for the benefit of NYFACS, all in accordance with the Employment Contract. 82. At all times relevant hereto, MARIE-JOSE BERNARD continued working and had been ready, willing, and able to render whatever services were required of her under the Employment Contract and as such, MARIE-JOSE BERNARD has never breached the Employment Contract. 83. MARIE-JOSE BERNARD has and will continue to suffer monetary damages, irreparable injury, mental anguish and personal and professional humiliation as 12 the result of NYFACS’s breach of contract unless and until this Court grants her the requested relief. 84. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the costs of this action together with reasonable attorneys’ fees. 85. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to compensatory damages. AS AND FOR THE FOURTH CAUSE OF ACTION FOR QUANTUM MERUIT 86. MARIE-JOSE BERNARD repeats and reiterates each and every allegation contained in paragraphs 1 through 85 above with the same force and effect as though more fully set further herein. 87. MARIE-JOSE BERNARD performed her employment services in good faith. 88. NYFACS accepted those services. 89. MARIE-JOSE BERNARD reasonably expected compensation for those services and that the defendants are liable to her for those damages. 91. MARIE-JOSE BERNARD suffered damages, and is entitled to the reasonable value of the services rendered. 92. As a result of the foregoing, MARIE-JOSE BERNARD has and will continue to suffer monetary damages, irreparable injury, mental anguish and personal and professional humiliation as the result of NYFACS’s actions unless and until this Court grants her the requested relief. 13 93. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the costs of this action together with reasonable attorneys’ fees. 94. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to compensatory damages. 95: As a result of the foregoing, MARIE-JOSE BERNARD is entitled to equitable relief. AS AND FOR A FIFTH CAUSE OF ACTION FOR UNJUST ENRICHMENT UNDER THE NEW YORK COMMON LAW 96. MARIE-JOSE BERNARD repeats and realleges each and every allegation contained in paragraphs 1 through 95 above with the same force and effect as though more fully set further herein. 97. NYFACS has been unjustly enriched by MARIE-JOSE BERNARD’s services to NYFACS. 98. MARIE-JOSE BERNARD conferred a benefit upon NYFACS by providing services. 99. NYFACS has unjustly retained the benefit of the services provided by MARIE-JOSE BERNARD without adequately compensating her, and equity and good conscience require NYFACS to make restitution. 100. MARIE-JOSE BERNARD suffered damages and is entitled to just compensation for the benefits her service provided to NYFACS. 101. As a result of the foregoing, MARIE-JOSE BERNARD has and will continue to suffer monetary damages, irreparable injury, mental anguish and personal and 14 professional humiliation as the result of NYFACS’s actions unless and until this Court grants her the requested relief. 102. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to the costs of this action together with reasonable attorneys’ fees. 103. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to compensatory damages. 104. As a result of the foregoing, MARIE-JOSE BERNARD is entitled to equitable relief. WHEREFORE, MARIE-JOSE BERNARD demands judgment against NYFACS, Claire Zaglauer and Elizabeth Cros: a. Awarding MARIE-JOSE BERNARD the costs of this action together with reasonable attorneys’ fees; b directing that the defendants pay to MARIE-JOSE BERNARD compensatory damages (including, but not limited to, emotional distress damages as permitted by statute for the first two causes of action) in an amount to be determined by a jury on each cause of action; and Cc. directing that the defendants pay to MARIE-JOSE BERNARD compensatory damages for the third, fourth and fifth causes of action; and d directing the defendants to pay punitive damages to MARIE-JOSE BERNARD on first two causes of action stated herein in an amount to be determined by the jury. 15 JURY DEMAND MARIE-JOSE BERNARD hereby demands a trial by jury on all claims so triable. Dated: May 22, 2014 New York, New York ours truly, J. Patyick D ince Attoyney fo# Plaintiff DEBLINCE/LAW PLLC 30 Bro St., 14th Floor New York, NY 10004 Tel: 212-382-3544 Fax: 212-504-8221 16 INDIVIDUAL VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) MARIE-JOSE BERNARD, being duly sworn, states: Tam the plaintiff in this action. The foregoing complaint is true to my own knowledge, > except as to matters therein stated to be alleg : on information and-belie! and as to those 0) matters I believe it to be true. ae vo A peek eet a W |ARTE-JOSE Sworn to before me on this oy of Meg oy Jy O2DE 6:8 106E 4 jotary’ Public Exhibit A Principal Employment Agreement THIS AGREEMENT (“Agreement”) is made and entered into this day of , 2010 by and between The New York French American Charter School, (“the School”) and Marie-Jose Bernard, (the “Principal”). I PRELIMINARY STATEMENT Whereas, the Board of Trustees (the “Board”) of the School believes an outstanding principal is a key to achieving the mission of the School; Whereas, the Board believes that the School’s curricula will have a beneficial, positive impact on the academic achievement of the School’s children; Whereas, the Board intend to support the Principal with training and resources of high quality; and Whereas, the Board desires that the Principal undertake, and the Principal agrees to undertake, the role of the educational and administrative leader at the School and to fully support the philosophy, mission and curriculum of the School and to work with the staff, parents and children of the School, as well as the Board, to achieve these ends. NOW THEREFORE, in consideration of the foregoing, the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows: Il. DUTIES AND RESPONSIBILITIES For and during the term of this Agreement, the Principal shall faithfully and dutifully act for the School and its students in the position of educational and administrative leader and shall devote all required time, attention and energies to that position, including, but not limited to, performing the following duties consistent with the School’s Charter: 1 motivate, supervise and evaluate all instructional and non- instructional staff to carry out the vision of the School by organizing an environment to hold staff accountable and actively coach instructional staff for improvement in classroom practice and managing the business and operational administration of the School within budget to ensure the School’s financial viability; ensure continual improvement for students, teachers and the School by assisting the School’s instructional staff in instructing and implementing the School’s curriculum, code of conduct, and other academic or personal development lessons as mandated by the Board including conducting at least two (2) formal written evaluations for each returning teacher (and three (3) for each new teacher to the School); direct the staff, School functions and programs, student activities and management and building care; demonstrate mastery of current curricular initiatives, approaches to content and differentiated design; understand and articulate effective instructional strategies, implement these strategies and evaluate their effectiveness; facilitate the analysis and alignment of assessment tools with the curriculum and ensure that the teachers are using data to drive and inform instructional planning and delivery; organize the School around instructional priorities and focus School culture on activities that will leverage student learning and achievement; use student performance data for instructional decision making and provide structure for looking at student work to identify instructional next steps for teachers and students; encourage and model to staff members successful classroom approaches to teaching and learning; 10 interpret and analyze multiple sources of national, state and classroom level student performance data to make decisions; 11 provide formal and informal leadership opportunities for staff and encourage them to exercise appropriate authority in those areas for which they are held accountable; 12 model, encourage and reinforce efficacy in individuals to produce results and persevere even when internal and external difficulties interfere with the achievement of strategic goals; 13 generate a sense of urgency to achieve the School’s academic goals by inspiring others in this pursuit; 14 communicate, in a timely and professional manner, with parents; School; community organizations; local, state and federal education agencies; and other stakeholders in the School; 15 work a 12-month year, subject to Section III of this Agreement. Workdays include, without limitation, face-to-face days with students, faculty and departmental meetings; site committees; curriculum committees; staff development; staff interviews; parent conferences; board meetings; open school meetings; and student conferences. It is expected that the Principal will devote at least forty (40) hours each week to his/her duties and professional responsibilities, not including mandatory attendance at weekly faculty meetings and at open-school meetings; 16 prepare thoroughly for his/her responsibilities, meetings and all other School functions as set forth herein or as otherwise required; 17, abide by the guidelines and principles set forth in the School’s Employee Manual, as amended from time to time (the “Employee Manual”) and all other school manuals and procedures, including, without limitation, the Principal’s Manual, the Finance and Operations Manual and the Human Resource Manual, as may be amended from time to time; 18 attend all Board meetings, parent conferences, School activities, and professional development workshops, including those workshops held before the beginning and after the end of the school year; 19 implement a variety of practices, procedures and structures (macro and micro) to engage the entire School community in feedback that is focused on improving performance. 20 perform other duties and responsibilities as may be assigned by the Board of Trustees; and 21 cooperate fully with any distinguished educator appointed by the New York State Commissioner of Education pursuant to Chapter 57 of the New York Laws of 2007, to the extent such cooperation does not interfere with the Principal’s performance of his or her regular duties. The Principal shall report directly to the Board of Trustees and shall also perform such further duties as are incidental or implied from the foregoing, consistent with the background, training and qualifications of the Principal, or as may be reasonably delegated as being in the best interests of the School by the Board. During the term of this Agreement, the Principal will not engage in any other business activity, regardless of whether such activity is pursued for profit, gain, or other pecuniary advantage without first obtaining the written permission of the Board. The Principal is not prohibited from making personal investments in any other businesses provided those investments do not require active involvement in the operation of said companies and do not create, in the judgment of the Board, a conflict of interest, or the appearance of a conflict of interest, with the School. During the term of this Agreement, the Principal shall not engage in any acts of dishonesty or moral turpitude that, in the judgment of the Board, are detrimental to the School, the Board, and shall not engage in any other act or omission which, in the judgment of the Board, may subject the School, the Board or any of their employees or representatives to public disrespect, scandal, ridicule, sanctions by governmental authority or to civil liability to the employees or representatives of the Board or the School or to third parties. During the term of this Agreement, the Principal agrees to notify the Human Resources representative and/or the Board within twenty-four hours of being arrested or charged with any local, state or federal crime, infraction, violation, misdemeanor or other offense. Ill. ABSENCES, LEAVES, VACATIONS & HOLIDAYS The Principal’s regular attendance each day is a critical element of the School’s mission and the student’s educational success. Unexcused absences are a detriment to the students and are to be taken only as truly necessary. Holidays, leaves and vacations are offered and are to be taken during days the School is not in session, excluding professional development days or sessions, the week following the school year, and the thirteen business days preceding the school year. School reports, documents and materials required or requested by the Board or any governmental authority, including, the School’s annual accountability report, must be satisfactorily completed by the Principal before vacation can be taken by the Principal. The Principal shall inform HR representative of any day that he/she is out or will be out of the building, excluding those leaves or vacations scheduled in advance. IV. EVALUATION & SCHOOL-WIDE PERFORMANCE TARGETS The parties agree that evaluations are an important part of training, and an opportunity to improve the educational results of the School for the children’s benefit. The Principal shall be subject to observation and oral and written evaluations by the Board as an ongoing activity, but minimally on a quarterly and annual basis. If the Principal receives any unsatisfactory evaluation, appropriate professional development may, in the discretion of the Board, be offered, and further observations may be scheduled. Nothing in this Section or in the 4 contents of any evaluation shall limit the School’s right to terminate the Principal’s employment under this Agreement in accordance with Section VII below. The parties agree that for the 2010-2011 school year, the Principal will be evaluated, in part, against whether the School satisfies the following academic and non-academic performance targets: Academic Performance Targets: 1. Charter: Satisfy the goals section as set forth in the School’s Charter. 2 Third Through Fifth Grade New York State Exam: 75% of the students in each of the School’s third through sixth grades shall score in performance Levels 3 or 4 on each of the third grade New York State mathematics and English Language Arts exams. Yearly Progres 75% of students demonstrate one year of progress as determined by the New York City Department of Education. Non-Academic Performance Targets: 1 manage the business, operational and financial administration of the School within budget to ensure the School’s financial viability; maintain full enrollment (e.g., at least 98% of all seats must be filled as measured in FTEs) for the school year maintain average daily student attendance at or above 94% maintain a safe and orderly school environment as evidenced by the School Safety Plan and its frequent update receive a positive response to each annual survey item on the Parent Survey from at least 80% of all parents timely and satisfactory completion of administrative reports and documents and filings If the Principal receives any unsatisfactory evaluation, appropriate professional development may, in the discretion of the Board, be offered, and further observations may be scheduled. Nothing in this Section or in the contents of any evaluation shall limit the School’s right to terminate the Principal’s employment under this Agreement in accordance with Section VII of this Agreement. Vv. COMPENSATION AND BENEFITS Salary Beginning on the Effective Date (as defined below) and continuing until the Termination Date (as defined below), unless this Agreement is terminated earlier in accordance with Section VII(1)(i), (2)(a) or (b), the Principal shall receive base salary at an annual rate of $100,000 for the school year, the Principal shall be eligible for a salary increase up to [four] [4%] to be determined by the Board. Salary is payable in bi-weekly installments, consistent with the School’s payroll practices and Human Resource Manual, as may be amended from time to time by the Board. Salary shall be subject to all applicable employment withholding taxes. Benefits This Agreement provides a brief summary below of the benefits presently offered by the School to the Principal, for illustrative purposes only. The benefits may change at any time at the sole discretion of the Board without notice. More detailed descriptions of the benefits can be found in the Employee Manual and in the respective summary plan descriptions and plan documents to be provided to the Principal. If the terms described in this summary conflict with the terms of any actual benefit plan document, the terms of the benefit document will apply. 1. Medical Plan The Principal shall receive health insurance, dental insurance, and eye care discounts if offered by the School. 2. Retirement Plan A 401(k) plan. 3. Workers Compensation The Principal is eligible for the statutory benefits of Workers Compensation under a program financed by the School. 4. Short-Term Disability The School will insure the Principal with short-term disability for disabilities up to 26 weeks. 5. Performance-Retention Bonus An annual performance-retention bonus, in addition to base salary, may be paid to the Principal, upon the Leadership Committee’s recommendation to the Board and the Board’s approval thereof, to recognize the Principal for fulfilling her roles and responsibilities and satisfying the performance targets. The Board has the absolute right to determine at its complete discretion if the Principal shall receive a bonus, the amount of the bonus and the date on which such bonus shall be awarded. The allocation of any bonus shall occur after the dissemination of all student proficiency examination results, and the review and analysis of examination results by the Board. VI. EFFECTIVE DATE AND EXTENSION Subject to final approval of the Board and the satisfactory completion of all background and fingerprint checks, this Agreement shall become effective on the date (the “Effective Date”) noted on the final page of this Agreement, and unless terminated by either party pursuant to the terms herein, shall continue in full force and effect until the date of termination (the “Termination Date”) noted on the final page of this Agreement. The School shall have the option to extend this Agreement for an additional three-year term, commencing July 1, 2012 and terminating June 30, 2015, provided that the Principal shall have met all obligations contained in this Agreement. The School shall provide the Principal with notice of extension, no sooner than three months prior to the Agreement’s Termination Date (as defined below) and no later than nine (30) days prior to the Termination Date. VII. TERMINATION L Early Termination of the Employment Term. The Employment Term shall end upon the earliest to occur of: (i) the death of the Principal, (ii) a Termination Due to Disability (defined below) by the School, (iii) a Termination for Cause (defined below) by the School, (iv) a Termination Without Cause (defined below) by the School or (v) ninety (90) days after the giving of written notice of termination by the Principal to the Board. 2. Definitions: For purposes of this Agreement a) “Termination for Cause” shall mean, as determined in the sole judgment of the School, a termination of the Principal’s employment by the School due to: (i) the Principal’s conviction of a felony or the entering by the Principal of a plea of nolo contendere to a felony offense; (ii) acts of dishonesty or moral turpitude by the Principal that are detrimental to the School; (iii) a refusal or failure by the Principal to perform his or her duties, responsibilities or obligations pursuant to the terms hereof, other than due to physical or mental illness (provided that the Principal shall have been reasonably informed of the School’s view of his or her refusal or failure and shall have been given an opportunity to cure such refusal or failure); (iv) conduct by the Principal which is materially injurious to the School, financially or otherwise; (v) the disclosure or use of confidential information of the School, other than as required in the performance of the Principal’s duties. or (vi) or any other act or omission which subjects the School or any of its employees, representatives, or affiliates to public disrespect, scandal, or ridicule. b) “Termination due to Disability’ means a termination of the Principal’s employment by the School because the Principal has been incapable of substantially fulfilling the positions, duties, responsibilities and obligations set forth in this Agreement because of physical, mental or emotional incapacity resulting from injury, sickness or disease for a period of (i) at least four consecutive months or (ii) more than six months in any twelve month period. Any question as to the existence, extent or potentiality of the Principal’s disability upon which the Principal and the School cannot agree shall be determined by a qualified, independent physician agreed upon by the School and the Principal. If the parties cannot agree on an acceptable physician, the dispute shall be heard by a third physician chosen by a physician chosen by the Executive and a physician chosen by the School. The determination of such physician shall be final and conclusive for all purposes of this Agreement. The Principal or his or her legal representative or any adult member of his or her immediate family shall have the right to present to such physician such information and arguments as to the Principal’s disability as he, she or they deem appropriate, including the opinion of the Principal’s personal physician. c) “Termination Without Cause” means any termination of the Principal’s employment by the School other than: (i) a termination due to Disability or (ii) a Termination for Cause. In the event of a Termination Without Cause, the Principal shall receive a severance payment of in an amount equal to the remaining weeks of the Principal’s regular base salary under this Agreement, payable in bi-weekly installments in accordance with the School’s regular payroll practices, provided that the Principal executes a general release in a form acceptable to the School. VIII. ADDITIONAL AGREEMENTS The Principal and the School agree: (a) That any deductions authorized by law, policy or the agreement of the Principal shall be made from the bi-weekly installments of the salary due the Principal. (b) That notwithstanding any specification or reference herein, this Agreement is subject to all applicable laws of the federal, state and local governments, and all duly adopted policies, rules and regulations of the School, as are in effect at any time during the term of this Agreement. (c) That this Agreement and the obligations of the School, the Board are conditioned upon the approval of all background and fingerprint checks of the Principal by the Board , which may be conducted from time to time before or during the Principal’s employment with the School. (d) That this Agreement and the obligations of the School, the Board are conditioned upon the School actually being and remaining in operation for the term of the Agreement. Ix. ARBITRATION The Principal agrees to submit to arbitration before the American Arbitration Association, pursuant to its rules for employment disputes all disputes or controversies between Principal and the School (or between Principal and any person or entity employed by or affiliated with the School, including the Board ) a