Justice Daniel Palmieri
Roosevelt Union Free School District moved to dismiss teacher Banigo’s complaint. Banigo was terminated when her position was abolished, arguing elimination of positions was motivated by the superintendent’s desire to replace older female teachers with younger male teachers. Banigo alleged age discrimination, among other things. The court found Banigo’s discrimination claims were addressed and dismissed in a federal action. Banigo did not serve notice of intent to sue under Education Law §3813, and the court noted compliance was a condition precedent to commencement of an action against a school board. The failure to comply with §3813 requirements regarding timeliness and service on the proper governing body were fatal. Federal case law stated an EEOC complaint may serve as substitute for notice under §3813 in rare instances where the EEOC charge put the district on notice of claims alleged, and was served on the district’s governing board within the statutory time period. Yet, the court stated Banigo’s EEOC complaint was dated eight months after her discharge, and there was no proof it was ever served on defendant, thus was untimely. It declined to find the EEOC complaint satisfied any notice requirements applicable to Banigo’s state claims, thus dismissing the action.
