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United States District Court, S.D. New York
August 17, 2005.
THOMAS J. GERMANO, Plaintiff,
CORNELL UNIVERSITY, NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS, EDWAR J. LAWLER, RONALD SEEBER, and ANN W. MARTIN, Defendants.
Plaintiff Thomas J. Germano commenced this action against the
above-named Defendants, claiming that they discriminated against
him on the basis of age in the course of his employment and
termination thereof, and that the Defendants' termination of his
employment was a breach of contract. Plaintiff asserts claims
under the Age Discrimination in Employment Act ("ADEA"), the New
York State Human Rights Law (NYSHRL), and the New York City Human
Rights Law ("NYCHRL"); as well as for common law breach of
contract and breach of implied-in-fact contract. Defendants
Cornell University, New York State School of Industrial and Labor
Relations ("ILR School"), Edward J. Lawler, Ronald Seeber, and
Ann W. Martin move pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure to dismiss Plaintiff's NYCHRL, contract, and
implied contract claims for failure to state a claim upon which
relief can be granted. Defendants also move to dismiss Plaintiff's New York City Human Rights Law claim
for lack of subject matter jurisdiction pursuant to F.R.C.P.
12(b)(1). For the reasons stated below, Defendants' motion to
dismiss is GRANTED IN PART AND DENIED IN PART.
A. Plaintiff's Employment at the ILR School
Plaintiff began working at the ILR School on October 7, 1976.
(Compl. ¶ 1).*fn1 The ILR School, a division of Defendant
Cornell University, offers the nation's only four-year
undergraduate program in industrial and labor relations. The
school has several extension offices in the State of New York,
including Buffalo, Rochester, Albany, Ithaca, New York City, and
Long Island, which is where Plaintiff worked as the Director for
the entire duration of his employment from October 7, 1976 until
his termination on January 13, 2003. (Id. ¶¶ 3, 12)
Plaintiff began his employment at the ILR School as an
Extension Associate I, which is how the ILR School refers to
instructors who work at its Extension offices. (Compl. ¶ 13).
Extension associates have professional qualifications comparable to those of professors and associate professors at Cornell.
(Id.). In 1988, Plaintiff "was promoted to Senior Extension
Associate II, which was the ILR School Extension's version of
"tenure." (Id. ¶ 14). At that time, ILR School Associate Deans
Lois Gray and Ronald Seeber told him that "once Cornell and the
ILR School appointed him a Senior Extension Associate II, he had
the equivalent of tenure, and, accordingly, could not be fired
other than for cause or budgetary exigencies whereby the school
was unable to continue paying his salary. (Id. ¶ 16).
B. Harassment and Termination of Plaintiff
Beginning in 2000, Cornell, the ILR School, and Defendant Ann
Martin, associate Dean of the ILR School until Cornell terminated
her position in December 2002,*fn2 allegedly tried for two
and half years to force him to retire by constant pressure,
threats, and harassment regarding his age. (Compl. ¶ 20). For
example, Martin first suggested that Plaintiff retire during a
meeting on November 2, 2000, and allegedly repeated several times
at this meeting that he should consider retiring and that "it's
time" for him to retire. (Id. ¶ 21). Plaintiff next saw Martin
at a meeting in New York City on February 6, 2001, where she
allegedly asked him if he was considering her suggestion to
retire. (Id. ¶ 22). Subsequently, Plaintiff ate dinner in Manhattan with Martin
on April 18, 2001 where she again allegedly asked Plaintiff if he
planned on retiring. Moreover, at that same dinner, she
supposedly "threatened to find someone else to do his work and
that he should begin some serious retirement planning." (Id. ¶
Thereafter, at a District Directors meeting in New York City on
December 5, 2001, Martin announced that a committee would meet
the next day to discuss the future of the Long Island office and
allegedly told Plaintiff specifically that his attendance was not
necessary, although he had been the Director of that Office for
nearly 25 years. (Compl. ¶ 26). On December 18th, Martin and
Plaintiff met at JFK Airport where she allegedly told Plaintiff
his office would have to produce savings or increased income in
the amount of $20,000 to $25,000 by June 2002 and function with
one less employee. Additionally, Plaintiff claims Martin
"threatened to break the lease and close the Long Island Office
either partially or completely." (Id. ¶ 27).
From January to June 2002, Plaintiff reduced the Long Island
office's operating costs by approximately $25,000 while working
with one less employee. (Id. ¶ 28). Meanwhile, on January 23,
2002, Martin allegedly told Plaintiff that if he would relinquish the position of Director she would stop harassing him to retire.
(Id. ¶ 30).
On October 4, 2002, Martin met with Plaintiff at the Long
Island office and informed him that Defendant Edward Lawler, Dean
of the ILR School, had decided to close the Long Island Office to
save money. (Id. ¶ 31). She allegedly stressed that the
decision to close the Office was not made as a result of poor
performance, and that in fact the office "was overachieving
despite being understaffed." (Id.). Thereafter, during a
conference call between ILR School Deans and Directors on October
9, Lawler allegedly told Plaintiff that ILR needed to save
$500,000 and that some people might need to retire. (Id. ¶ 32).
During this conversation, Martin supposedly said, "I know Tom
Germano is sitting quietly in a great deal of pain, and I thank
you for that, Tom. I'm sure others are feeling for you as I am."
On October 24, 2002, Plaintiff allegedly received a letter from
Lawler stating that Plaintiff's employment had been terminated
for financial reasons effective July 1, 2002. (Id. ¶ 33). The
letter did not mention performance or managerial problems.
(Id.). The only other employee at the Long Island Extension
office whose employment was terminated was a woman over 70 years
old with only 2½ years service to Cornell while the other employees, all junior and younger than Plaintiff, were
allegedly offered employment with the ILR School's New York City
district office. (Id. ¶ 34). However, after the Long Island
Federation of Labor and the Long Island Labor Advisory Board
threatened to lobby for an alternative provider of labor
education in Long Island, the Long Island Office remained open
and Plaintiff kept his job as Director. (Id. ¶ 39-40).
On December 23, 2002, Plaintiff sent an email to Lawler seeking
confirmation that the Long Island office's current level of
staffing would be retained and that a vacant labor studies
support position could be filled. (Compl. ¶ 47). According to
Jack Caffey, the President of the Long Island Federation of
Labor, Plaintiff allegedly had the authority to hire up to the
current level of staff working at the Long Island Office at that
time, plus fill the labor studies support position that had been
vacant. (Id. ¶ 48). On December 24, 2002, Plaintiff sent a
letter to Margaret Sipser Leibowitz, an ILR School employee who
was teaching ILR classes in Ithaca in the fall of 2002, and
called Tina Hament "to see if either or both would fill the one
vacant position and one soon-to-be vacant position in the Long
Island Office, respectively." (Id. ¶ 49). Plaintiff claims both
prospective employees were aware that any offer of employment
Plaintiff made was contingent upon approval from Cornell.
(Id.). A copy of the letter Plaintiff sent to Ms. Leibowitz was sent
simultaneously to Lawler. (Id.).
Then, on January 3, 2003, Lawler responded to Plaintiff's
December 23, 2002 email, and confirmed that Plaintiff had
authority to keep current labor staffing, including sufficient
staff support. (Compl. ¶ 50). Three days later, Plaintiff
contacted Lawler's office on to confirm that he had authority to
fill the labor staff support position that had been vacant since
April 2002. (Id. ¶ 51). Later that same day, an employee in
Lawler's office emailed Plaintiff and informed him that Lawler
would not permit him to fill this position and Lawler would make
no specific decisions about staffing in the Long Island office
until the needs assessment for statewide labor was completed.
(Id. ¶ 52).
On January 13, 2003, Plaintiff met Defendants Seeber and
Lawler. (Compl. ¶ 53). At this meeting, these Defendants gave
Plaintiff a letter, which stated that his employment with the ILR
School was terminated because he had offered Ms. Leibowitz a
position. (Id.).
C. Procedural History of the Present Action
On February 13, 2003, Plaintiff filed a charge of
discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging that Defendants
terminated his employment because of his age in violation of the
ADEA. (Compl. ¶ 8; Affidavit of Nelson E. Roth ["Roth Aff."], Ex.
2 (Charge of Discrimination)). On September 8, 2003, the EEOC
dismissed Plaintiff's administrative charge, and informed him
that he could file a private ADEA lawsuit in United States
District Court within 90 days without a "right-to-sue" letter.
(Compl. ¶ 9; Roth Affidavit, Ex. 3 (Letter from EEOC to
Plaintiff, dated September 8, 2003)).
Thereafter, on December 9, 2003, Plaintiff commenced the
present action by filing his Complaint, alleging five causes of
action: (1) an ADEA claim for employment
discrimination-specifically, on-the-job harassment and eventual
termination on the basis of Plaintiff's age (Compl. ¶ 62); (2)
a New York State Human Rights Law Claim for age discrimination in
employment based on the same conduct (id. ¶ 67); (3) a New York
City Human Rights Law claim for age discrimination in employment
(id. ¶ 72); (4) a breach of contract claim for allegedly
terminating Plaintiff without cause in violation of an alleged
contract under which he had life tenure, (id. ¶¶ 16, 77-79);
and (5) a breach of implied-in-fact contract for terminating
Plaintiff despite Cornell and the ILR School's alleged prior
treatment of Senior Extension Associate II's as tenured. (Id. ¶
86). Defendants now move to dismiss the latter three claims pursuant to Rule 12(b)(6) for
failure to state a claim upon which relief may granted.
A. Rule 12(b)(1) Dismissal
Defendants move to dismiss Plaintiff's NYCHRL claim pursuant to
Rule 12(b)(1) for lack of subject matter jurisdiction. However,
because this court has original federal question jurisdiction
over plaintiff's federal ADEA claim under 28 U.S.C. § 1331, and
because the NYCHRL claim arises out of the "same nucleus of
operative facts" as the ADEA claim, the Court clearly has
supplemental subject matter jurisdiction over this latter claim
under 28 U.S.C. § 1367(a). United Mine Workers v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Promisel v.
First American Artificial Flowers, 943 F.2d 251, 254 (2d Cir.
1991) (noting that § 1367(a) codified the availability of pendant
jurisdiction as set forth in Gibbs), cert. denied,
502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Accordingly,
Defendants' Rule 12(b)(1) motion is wholly without merit.
B. Rule 12(b)(6) Dismissal
In deciding a Rule 12(b)(6) motion, the Court must read the
complaint generously, accepting as true all factual allegations therein and drawing all reasonable inferences in favor of the
plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465,
469 (2d Cir. 1995); Mills v. Polar Molecule Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is only proper when "it
appears beyond doubt that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Chance
v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957)).
Because a Rule 12(b)(6) motion is used to assess the legal
feasibility of a complaint, a court should not "assay the weight
of the evidence which might be offered in support thereof."
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
Rather, consideration of a Rule 12(b)(6) motion is limited to the
factual allegations in the complaint, documents attached to the
complaint as exhibits or incorporated in it by reference, to
matters of which judicial notice may be taken, or to documents
either in plaintiff's possession or of which plaintiffs had
knowledge and relied on in bringing suit. Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d
Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561 (1992)). 1. NYCHRL Claim
Under the New York City Human Rights Law, it is unlawful for an
employer to discriminate against or discharge an employee on the
basis of his or her age. N.Y.C. Admin. Code § 8-107(a). Both New
York State law and the New York City Administrative Code limit
the applicability of the NYCHRL to acts occurring within the
boundaries of New York City. See N.Y. Gen. Mun. Law § 239-s
(1999); N.Y.C. Admin. Code § 2-201 (2003). Consequently, in order
to state a claim under the NYCHRL, all "plaintiffs must allege
that the defendants intentionally discriminated against them
within New York City." Casper v. Lieberbaum & Co., Inc., No. 97
Civ. 3016, 1998 WL 150993 at *4 (S.D.N.Y. Mar. 31, 1998).
"To determine the location of the discrimination, courts have
looked to the location of the impact of the offensive conduct."
Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999
WL 796172 at *16 (S.D.N.Y. Sept. 30, 1999) (citing Casper, 1998
WL 150993 at *5) (emphasis added). In Casper, plaintiffs
worked in Garden City, and the alleged gender discrimination
occurred over an interoffice microphone system from New York City
to Garden City while plaintiffs were in Garden City. Casper,
1998 WL 150993 at *5. Judge Koeltl dismissed the case because the
comments impacted plaintiffs solely at the Garden City office.
Id. "Plaintiff must show more than the happenstance that a defendant has an office in New York City."
Id. at *4 (citing Lightfoot v. Union Carbide Corp., No. 92
Civ. 6411, 1994 WL 184670 at *5 (S.D.N.Y. May 12, 1994), aff'd,
110 F.3d 898 (2d Cir. 1997)).
Defendants argue that Plaintiff cannot as a matter of law
maintain his NYCHRL claim because the alleged discrimination did
not take place in New York City. (Def. Mem. Law at 7-8; Def.
Reply at 1-2). Plaintiff alleges in his Complaint that Defendants
discriminated against him at four meetings and dinners that took
place in New York City at which Martin harassed and pressured him
to retire. Assuming such conduct constitutes discrimination,
Plaintiff still only felt the impact of that discrimination in
his place of occupation, Long Island, not New York City. See
Salvatore, 1999 WL 796172 at *17 (finding that alleged
"isolated incidents" of sexual and racial harassment occurring in
New York City did not establish that the "whole or substantial
part" of the alleged employment discrimination took place in New
York City because the allegedly hostile work environment created
by such incidents was in Westchester County-plaintiffs' place of
employment not New York City).
The facts of the present case mirror those in Salvatore. Like
the Plaintiff here, the Salvatore plaintiffs were employed
outside of New York City. Furthermore, the Salvatore plaintiffs were not subject to any adverse employment action, such as
termination or denial of overtime pay, benefits or promotions, in
New York City. 1999 WL 796172 at *17. Instead, the plaintiffs
only alleged that defendant created a hostile working environment
by making sexually suggestive and racial harassing remarks and
unwanted sexual advances during a company outing in New York City
and one of plaintiffs' visits to defendant's home in New York
City. Id. at * 15. Ultimately, the court agreed with the
defendant that these isolated incidents impacted plaintiffs'
employment only in Westchester County their place of employment
not New York City, and dismissed their NYCHRL claim under Rule
12(b)(6). Id. at *15-17. Thus, to the extent that the present
Plaintiff's NYCHRL claim rests on the aforementioned four
incidents of harassment by Martin in New York City, it cannot
survive Rule 12(b)(6) dismissal.
Plaintiff in turn argues that because the January 13, 2003
meeting at which he was finally terminated took place in New York
City, this case is analogous to Launer v. Buena Vista Winery,
916 F.Supp. 204 (E.D.N.Y. 1996), in which the district court
found that the plaintiff who had been terminated at a meeting in
New York City and had discriminatory remarks faxed to him at his
New York City phone number had suffered discrimination in New
York City. 916 F.Supp. at 214; (Pl. Mem. at 6-7). However, Plaintiff's Complaint makes no mention of the fact that such
termination meeting occurred in New York City. Moreover, even if
the Court takes notice of such fact, the present case is still
distinguishable from Launer because while the plaintiff in
Launer was terminated in New York City, he also maintained an
office for the defendant employer in New York City and attended
periodic regional company sales meetings there. Launer,
916 F.Supp. at 206. In contrast, Plaintiff did not maintain an office
or any other workspace in New York City, nor did he perform any
of his job-related duties there.
Instead, Plaintiff's situation is more analogous to the
plaintiff in Lightfoot v. Union Carbide Corp.. In Lightfoot,
the plaintiff worked in Connecticut, and he occasionally brought
work home with him to his residence in New York City. In
addition, the defendants in that case approved the plaintiff's
termination at a meeting in New York City. Nevertheless, Judge
Patterson granted summary judgment in favor of the defendant on
the plaintiff's NYCHRL claim, finding that the impact of
defendant's alleged adverse employment action on the plaintiff
occurred while the latter was employed in Connecticut.
Lightfoot, 1994 WL 184670 at *5. Accordingly, in the present
case, Plaintiff has failed to allege that Defendants' adverse
employment actions impacted him in New York and therefore cannot state a viable
cause of action under the NYCHRL.
2. Breach of Contract
Plaintiff's fourth cause of action alleges that in terminating
him from his position as a Senior Extension Associate II "without
cause", Defendants breached their contract with him under which
he allegedly was guaranteed life tenure and could only be fired
"for cause and/or budgetary exigencies." (Compl. ¶¶ 78-79). Such
contract, which was allegedly oral rather than written, was in
turn supposedly based on Defendants Gray and Seeber's alleged
representation to Plaintiff that he had the "equivalent of
tenure" upon his appointment as a Senior Extension Associate II,
and the policies of Cornell and the ILR School, under which a
Senior Extension Associate II is allegedly treated as "a tenured
faculty member." (Id. ¶¶ 16-17, 77).
However, the Cornell Faculty Handbook, which was submitted in
conjunction with Defendants' Motion to Dismiss (see Affidavit
of Nelson E. Roth ["Roth Aff."], Ex. 17) and which the Court may
consider because it contains some of the "policies of Cornell"
referred to in the Complaint (see Compl. ¶ 77), directly
contradicts Plaintiff's version of the contract terms as set forth in the Complaint.*fn3 The Handbook in fact explicitly
provides that rather than enjoying life tenure, "Senior Extension
Associates are appointed for terms of up to five years and may be
reappointed on the basis recommendations by the department and
the appropriate extension director and deans(s)." (Roth Aff., Ex
17 at 33). Thus, the Complaint's allegations do not establish the
existence of an oral contract for tenure between Defendants and
Plaintiff. See Matusovsky v. Merrill Lynch,
186 F.Supp.2d 397, 400 (S.D.N.Y. 2002) ("If a plaintiff's allegations are
contradicted by ? a document [attached to or incorporated by
reference into the complaint], those allegations are insufficient
to defeat a motion to dismiss."); In re Bristol-Myers Squibb
Sec. Litig., 312 F.Supp.2d 549, 555 (S.D.N.Y. 2004) ("The court
need not accept as true an allegation that is contradicted by
documents on which the complaint relies.") (citation
omitted).*fn4 Accordingly, Plaintiff's breach of contract claim must be
3. Breach of an Implied-in-Fact Contract
Plaintiff also alleges that even if there was no express
employment contract granting him tenure, the parties had entered
into an implied-in-fact contract under which he had tenure.
(Compl. ¶ 83). This implied-in-fact contract, Plaintiff claims,
arises from Defendants' conduct, the treatment of other Senior
Extension Associate II's as having tenure, and the policies of
Cornell and the ILR School. (Id. ¶¶ 84-86).
"A contract implied in fact may result as an inference from the
facts and circumstances of the case, although not formally stated
in words . . . and is derived from the presumed intention of the
parties as indicated by their conduct." Jemzura v. Jemzura,
36 N.Y.2d 496, 503-04, 369 N.Y.S.2d 400 (1975) (internal quotations
and citations omitted). While an implied in fact contract is
equally binding as an expressed contract, id., and, like an
express contract, requires mutual assent evincing the intention
of the parties to be bound by specific contractual terms, see
Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94, 699 N.Y.S.2d 716
(1999) (citations omitted), it "rests upon the conduct of the parties and not their verbal or written words."
Parsa v. New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27 (1984).
As an initial matter, Defendants argue that "[a] plaintiff may
not rely on an implied-in-fact contract where an express contract
governs the subject matter." (Def. Mem. at 10). While Defendants
have correctly stated the law, see Stissi v. Interstate &
Ocean Transp. Co. of Philadelphia, 814 F.2d 848, 851 (2d Cir.
1987) ("It is an elementary principle of contract law that, where
there exists an express contract for compensation, an action
outside that contract will not lie."); Muhitch v. St. Gregory
the Great Roman Catholic Church and School, 239 A.D.2d 901,
659 N.Y.S.2d 679, 680 (4th Dep't 1997) ("Where, as here, an express
contract exists between the parties concerning the same subject
matter, there may be no recovery upon a theory of implied
contract."), such rule has no application in the present case
where, as stated above, there was no express employment contract
giving Plaintiff tenure.
Nevertheless, Plaintiff has failed to allege adequately the
existence of an implied-in-fact contract between him and
Defendants giving him lifetime tenure in employment. The
Complaint's general reference to Cornell and the ILR School's
"conduct indicat[ing] to [Plaintiff] that he was a tenured
faculty member" (Compl. ¶ 84) is too vague to overcome a Rule 12(b)(6) motion. See Electronics Communications Corp v.
Toshiba, 129 F.3d 240, 243 (2d Cir. 1997) (holding that
conclusory statements in a complaint will not substitute for
sufficient factual allegations when trying to overcome a motion
to dismiss). Moreover, as discussed above, his allegations that
granting him tenure was consistent with Defendants' treatment of
other Senior Extension Associate II's and with Cornell and ILR
School Policy are directly contradicted by the Cornell Faculty
Handbook itself and thus carry no weight with the Court.
Accordingly, the Court also finds that Plaintiff has failed to
a state viable claim for breach of implied-in-fact contract.
C. Leave To Amend
Having found that Plaintiff's NYCHRL, contract, and
implied-in-fact contract claims must be dismissed pursuant to
Rule 12(b)(6), the Court must next determine whether Plaintiff
should be granted leave to amend its Complaint to cure the
defects in these three causes of action. Under F.R.C.P. 15(a),
leave to amend "shall be freely given when justice so requires."
Fed.R.Civ.P. 15(a). However, although "[i]t is the usual practice
upon granting a motion to dismiss to allow leave to replead,"
Cortec Industries, Inc., 949 F.2d at 48 (citing Ronzani v.
Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990), a court may dismiss without leave to amend when amendment would be futile.
Oneida Indian Nation of New York v. City of Sherrill,
337 F.3d 139, 168 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178,
182,83 S.Ct. 227, 230, 7 L.Ed.2d 385 (1962)). Ultimately, the
decision to grant leave to amend a complaint rests within the
discretion of the district court. Foman, 371 U.S. at 182,
83 S.Ct. at 230.
With respect to Plaintiff's NYCHRL claim, no additional amount
of pleading will establish that Plaintiff felt the impact of the
alleged discrimination in New York City. After all, Plaintiff's
office was in Long Island. Even if Plaintiff alleges more acts of
discrimination during meetings in New York City, the impact of
such discrimination was still on Plaintiff's employment in Long
Island. Similarly, as discussed above, even if Plaintiff alleges
the termination meeting was in New York City, the impact of that
meeting on plaintiff's employment was also in Long Island. Thus
amendment of this claim would be futile. The same can also be
said for Plaintiff's contract and implied-in-fact contract claims
because no amount of additional allegations in the Complaint
would change the fact that Cornell and the ILR's School's
employment policy with respect to Senior Extension Associates, as
expressly reflected by the Faculty Handbook, was to offer them
5-year employment terms rather than lifetime tenure.
Accordingly, leave to amend is denied with respect to all three
of Plaintiff's dismissed claims.
For the reasons stated above, Defendants' Motion to Dismiss
under Rule 12 (b) (1) is DENIED, but their Motion to Dismiss the
three causes of action under Rule 12 (b) (6) is GRANTED.
Accordingly, Plaintiff's New York City Human Rights Law, breach
of express contract, and breach of implied-in-fact contract
claims are DISMISSED WITH PREJUDICE. Defendants are directed to
answer Plaintiff's two remaining causes of action within twenty
(20) days of the date of this Order. Upon joinder of the
remaining issues, a Rule 16 conference shall be scheduled by the
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I was not happy with these wipes. They dried out too quickly, they do not work as well as other wipes do. I had to use more wipes to get the job done then I do with the normal brand I buy.
Not a fan of huggies wipes. I find they have a terrible texture and don't stay moist very long. I find myself having to use a lot of strength/pressure to get a proper clean when changing my daughters diaper.
Sans parfum. Parfaite pour petite fesse sensible de bebe. Ma fille etant tres sensible de la peau ce sont les seul serviette humide qui ne lui faisait aucune reaction.
I have used a variety of baby wipes even before I had my son because they are wonderful for so many things! I have landed on using Huggies Baby Wipes Natural Care as my son has very sensitive skin & these wipes are very gentle but keep their moisture. I also use them for a gentle eye-markup remover and quick face wipe when I am out and about. They are also amazing as a feminine wipe for half the price!! & to be honest, I find they clean better than a cleaning wipe around the house (if you are looking for something to clean that doesn't need disinfecting!)
I used both the huggies sensitive and the pampers sensitive wipes
both are equally thick but I find that the pampers wipes are too wet, and prefer the huggies one instead
They are really good and my baby does not have any diaper rash from using it
Best place to buy this is at costco! comes with a wipes container (plastic) and those wrist ones!
These reviews are the subjective opinions of ChickAdvisor members and not of ChickAdvisor Inc.


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Police: Dog appeared to have been strangledMay 02,2014Police: Dog
appeared strangled
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Religious Ed at school
Started by 3inthebed , Feb 02 2013 09:37 AM
17 replies to this topic
Posted 02 February 2013 - 09:37 AM
DS just started school and we just got a note home asking us if we wanted him to participate in RE class. It is not compulsory. This is a non-religious state primary school and we are a non religious family.
I dont have any problem with him taking the class even if it's not what I dont believe in. He can decide for himself how much he wants to take in. He can ask us questions and we can answer the good ol.......well some people like to believe..... After all, I did RE classes all the way through my schooling at a non religious school and it didn't sway me from my beliefs but rather just educated me on another subject at school. My DH however seems adamant DS does not participate. I didn't think he would feel so strongly about this.
I also don't want DS to feel like he is not included if there are only a few kids that don't participate in RE.
So, anyone else in the same position as us? What have you decided and why? Does it really matter?
Posted 02 February 2013 - 09:43 AM
DD started school last year and we were adamant that she was not going to do religious education. In state schools it's usually taught by volunteers from that specific church, so you are very much getting one individuals take on their own religion. I'd be happy for DD to learn about religion from a neutral viewpoint, but I don't want someone filling up her head with views that our family does not subscribe to.
Posted 02 February 2013 - 09:43 AM
Can you find out what he'll do if he's not in the religion class?
I also went to a religious school and never believed it, but I think it depends how its taught - the non-religious schools seem to end up with more preachy people, IYKWIM, I guess because they may be volunteers as WingBob says. My problem with it is that it doesn't tend to be a religion class, but a christianity class. I'd try to find out more about the specific class and what would be organised for those not doing religion before making a decision.
Edited by HerringToMarmalade, 02 February 2013 - 09:45 AM.
Posted 02 February 2013 - 10:38 AM
The RE lessons at our public non religious school are very preachy and the kids are always given lollies in class. Personally I was totally gobsmacked by some of the things DD was coming home saying. The children who don't participate stay supervised in their classroom with their normal teacher and play or colour. Thankfully this year our school is introducing ethics lessons as an alternative.
Posted 02 February 2013 - 02:26 PM
I feel the same as you. Education is always a positive.
DS attends a different religion to ours, but it is Christian. He hasn't said anything that makes me think he is being misinformed or brainwashed. He wants to go so he does.
I think about 50-70% of kids go and it is quite an alternate school.
Posted 05 February 2013 - 02:01 PM
we pulled DS out of RE after about 6 weeks as even though it is supposed to be a class in "general" religion it was totally about christianity and nothing about all the other wonderful cultures and religions that make our school what it is (which when you read the syllabus they actually started was part of teh curriculum.
While our kids are kept in their class room they utilise the time reading, finishing work, colouring etc - nothing to stressful.
As the teachers are volunteers from the church, what is taught a lot of the time is what that person believes. At the end of last year we had a major issue at our school (primary - grade 1 class) where when a child asked a question about santa, the class was told in no uncertain terms that santa didn't exist and that your parents gave you presents! To say the school and parents were horrified was an understatement.
I am all for a class that teaches children a "balanced view" about all religions and I think this is sadly missing from our education system
Just my opinion and experiences
Posted 05 February 2013 - 02:13 PM
I have found that in nsw public schools it's pretty preachy and as it's run by church volunteers, they are often trying get more attendance at the local church. I won't be letting my DS attend when he commences school. I will be teaching DS about eastern religions, DH can do Christianity (his dad was a Presbyterian minister - but he is now an atheist) and we both know a little about Judaism and Islam......though admittedly could do with a better resource with those two.
Posted 05 February 2013 - 02:24 PM
I realise there are horror stories about RE just as there are horror stories about unqualified people teaching any subject. However my personal experience of RE was positive. I went to a Christian school and my RE teacher was adamant that RE classes would be, literally, a religious education - so we learnt about several major religions across the world. It was fascinating to visit a mosque and learn about the major tenets of Islam from an imam, then discuss afterwards what was true/false about the perceptions we previously held about Islam. We also learnt what distinguished the different denominations across Christianity and about Buddhism etc.
Even if RE classes teach only Christianity, I still think it's worth learning, for the sake of education. You can be involved and encourage your kids to think critically. I think it's really sad when atheist parents insist on keeping their kids in ignorance about all religions (in fact, I think it's really narrow minded) because we live in a world where lots of people's choices and decisions and politics and such are influenced by religion. You also understand history and other cultures a lot better when you have a basic grasp of religion. If I lived in an Islam dominated culture I would want my children to learn about Islam so they better understand their surroundings and the beliefs of their peers and why they believe what they believe.
Posted 05 February 2013 - 02:40 PM
QUOTE (epl0822 @ 05/02/2013, 03:24 PM) <{POST_SNAPBACK}>
I think it's really sad when atheist parents insist on keeping their kids in ignorance about all religions (in fact, I think it's really narrow minded) because we live in a world where lots of people's choices and decisions and politics and such are influenced by religion.
You do know that atheist parents are often quite capable of teaching their kids about various beliefs? What's more, we can do it without any of the elelments of indoctrination which are so often present in RE classes.
I am an atheist and I would let my child go to RE when pigs fly.
Posted 05 February 2013 - 03:16 PM
My first few years of school was at a non religious school. I did RE (I was however baptized) I don't remember it being preachy as such and if it was it clearly didn't really hold too much. I moved to a religious private school later and we had to do RE lessons and later in yr 11 and 12 they did Ethics instead. We had chapel and a few other church services each term and had to sing hyms and say a prayer at most assembly's (it was Angelican school) The RE teacher there was fantastic though, basically Angelican views where taught in things like chapel and in the readings that where selected however we were taught in RE about all other types of religon (this happened even in the jnr school section not just in the high school sectino) and we learnt alot about events involving religon tensions and issues .
Posted 05 February 2013 - 04:49 PM
I won't be letting my kids do RE at their state primary school until I know a bit about who is coming in to run the sessions. I'm all for them learning a bit about Christianity but am put off by stories of right-wing Christian extremists taking on the gig to push their views. If it's some nice person from the Uniting Church with progressive, socially inclusive views I'd be all for it.
Posted 05 February 2013 - 05:18 PM
Edited by bye, 29 March 2013 - 02:42 PM.
Posted 05 February 2013 - 06:12 PM
I think it's really sad when atheist parents insist on keeping their kids in ignorance about all religions (in fact, I think it's really narrow minded) because we live in a world where lots of people's choices and decisions and politics and such are influenced by religion.
I think it is really sad that people come into my child's school and teach them their one religious doctrine. Yes at our school it is religious instruction, not religious education, there is a diference. I know of young kids kids who have been told that you must believe in god and they have come home worried for their parents.
If there was an option for a real curriculum that shares the social, political and historical contexts and beliefs of a range of religons then I would be first in line to sign up. If it is a volunteer from the local church where I have no idea what they are teaching or who they are then no thanks.
By the same token I think it is sad when people hold their children back from sex ed based on their religion, denying them important information! or
Edited by juliettesmum, 05 February 2013 - 06:13 PM.
Posted 06 February 2013 - 09:18 AM
I agree Juliettes mum, I have no problem with my kids being taught religious education as long as it is all religions. My kids went to a creche where there were a lot of carers from various ethnic backgrounds. They came away from this with a great overall understanding that everyone had different beliefs, values and a different view on what god was to them.
I would re-enrol my kids in a heart beat if I knew the program was going to be a balanced view of all religions with no one pushing their own opinion (which the santa incident was classic example). Sadly this does not look like it will happen any time soon
Posted 06 February 2013 - 09:25 AM
QUOTE (epl0822 @ 05/02/2013, 03:24 PM) <{POST_SNAPBACK}>
I think it's really sad when atheist parents insist on keeping their kids in ignorance about all religions (in fact, I think it's really narrow minded) because we live in a world where lots of people's choices and decisions and politics and such are influenced by religion. You also understand history and other cultures a lot better when you have a basic grasp of religion.
A friend of mine knows more about the bible than anyone I have ever met. He is an atheist. I know other athiests who know a great deal more about the Quran than many adherents to Islam.
I would be happy for DD to learn about religion. What I would not be happy with is DD coming home in tears because some bigotted auld witch told her that people who don't believe in God get sent to the burning fires of hell, as happened to one friend of mine, or being asked, nastily, why you celebrate Christmas when you dont' believe is Jesus, as happened to my sister.
Posted 06 February 2013 - 09:31 AM
went to a Christian school and my RE teacher was adamant that RE classes would be, literally, a religious education - so we learnt about several major religions across the world. It was fascinating to visit a mosque and learn about the major tenets of Islam from an imam, then discuss afterwards what was true/false about the perceptions we previously held about Islam. We also learnt what distinguished the different denominations across Christianity and about Buddhism etc.
Funnily enough I went to a religious school and the RE lessons there were far less preachy than DDs public school. They were run by a qualified teacher and even though they were based on Christianity there was no preachy whatsoever involved. Whereas at DDs school I think it is someone from one of the local churches around running Sunday School type of lessons and preaching to the kids. Very sad as I would have been happy for DD to learn about religion at school but now I have to withdraw her.
Posted 06 February 2013 - 09:31 AM
Yes, RE in public schools in NSW is not comparative religion...they learn that as part of the normal syllabus (which is great) ....RE is religious instruction ...at my sons school they split it up into "Anglican scripture", "catholic Scripture" and there is a yr two boy who does "Jewish scripture" .....it's not comparative at all...if it was they wouldn't need to split it up!
My son does "non scripture" which is colouring in....
Posted 06 February 2013 - 09:43 AM
I spoke to the Catholic scripture teacher at DS's school and it is clear that the aim is to preach rather than educate so have opted DS out of the classes. I would welcome an actual educational program teaching about all different religions, history, social context etc but as this isn't offered it is something we will have to cover at home.
I have no objection to him taking part in religious education eg today is Yom Kippur, Easter, whatever- with an explanation of who celebrates it, what the customs are etc but I do object to him being told that a religious belief is the absolute truth and there are consequences for your soul if you don't believe.
DS is in FYOS so the half hour a week wasted while not in scripture doesn't overly concern me, next year he can join the ethics program.
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ERIC Number: ED184104
Record Type: RIE
Publication Date: 1980-Mar
Pages: 23
Abstractor: N/A
Reference Count: 0
Effects of Directions Describing Passage Structure, Signaling, and Elaboration of Readers' Recall.
Slater, Wayne H.; And Others
After 104 high and low ability ninth grade students read prose passages, they wrote all that they remembered about the passage, exhibiting how text features affected text recall. The materials varied in length, the number of propositions presented, and whether headings were used to organize the passage. Only one of the two sets of directions used for the task explained the organization of the passage. The high ability students recalled more propositions than low ability students. Students receiving directions with signaling recalled more propositions than those receiving directions without signaling. Although low ability students generally recalled less than high ability students, the low ability students who received the elaborated version of the prose passage along with directions explaining passage organization demonstrated recall approaching that of the high ability students. Significantly more high ability students used the author's schema. Students used the author's schema significantly more frequently when they were given the directions explaining text organization. The use of elaboration (more propositions/longer passage) did not significantly affect amount of recall. Overall, the results failed to indicate that major textual changes had any significant effect on student recall. (RL)
Publication Type: Reports - Research; Speeches/Meeting Papers
Education Level: N/A
Audience: N/A
Language: English
Sponsor: N/A
Authoring Institution: N/A
Identifiers: Schemata; Story Grammar
Note: Paper presented at the Annual Meeting of the University of Wisconsin-Milwaukee Linguistics Symposium (9th, Milwaukee, WI, March 7-8, 1980).


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Augmented reality
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Not only has it been done before for cars, but also Toyota IQ had a money shot of a "component split out"
This is really "cool" - but that's the medium that North Kingdom defined. The reality is that nothing I have seen, including this, actually leverages the technology in the name of a great idea.
Build your own Mini Cooper on the website and "see it" right in front of you, now I might be a little more interested.
good ,you did it! The technology I have experienced 2 months ago. you are my boy!
this one is better: www.toppstown.com/UserSite/TotalImmersion/Instructions.aspx
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Hi there, I'm Jingles, a handsome and friendly kitty! I am about 6 months old and I have gorgeous gray fur with dark gray/black tabby markings. I am super sweet, I love humans and I very much love to play!
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Exercise 15
In this week we will cover pages 97 to 99 of the Lab Manual which includes Practice 1 on page 99. Then the subject will be shifted to the testing the taste of PTC and calculation of gene frequencies.
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To view lab lectures, please click on the icons below.
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August 6, 1997
GERALDINE LOMBARDO, PETITIONERv.WORKERS' COMPENSATION APPEAL BOARD (TOPPS COMPANY, INC.), RESPONDENT
Appealed From No. A95-3282. State Agency Workers' Compensation Appeal Board.
Before: Honorable Dan Pellegrini, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.
Filed: August 6, 1997
Geraldine Lombardo (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which affirmed the order of the Workers' Compensation Judge (WCJ) dismissing her petition to set aside final receipt.
Claimant suffered a work related injury on April 17, 1990. She began receiving benefits pursuant to a notice of compensation payable. On September 4, 1990, Claimant signed a final receipt and returned to a light duty position with no loss of earnings. On May 23, 1991, Claimant filed a petition to set aside final receipt alleging that she signed a final receipt on September 4, 1990 even though she still suffered residual disability from her work related injury because the company nurse advised her that she would not receive her final compensation check if she failed to do so. Employer filed an answer denying Claimant's allegations and a hearing before the WCJ was held.
By order dated November 12, 1992, the WCJ dismissed Claimant's petition to set aside final receipt. On appeal by Claimant, the Board, by order dated August 15, 1994, reversed the WCJ concluding that because Claimant returned to work in a light duty position after signing the final receipt, she necessarily continued to suffer residual disability from her work-related injury. Employer appealed to this Court, and we entered a memorandum opinion and order dated February 10, 1995 remanding the matter to the WCJ. We rejected the Board's Conclusion that Claimant necessarily suffered residual disability from her work injury based upon her return to a light duty work position. To the contrary, we noted that Claimant's own testimony indicated that her return to light duty was because she was at the bottom of Employer's seniority list and that the light duty position, which was on the second shift, was were she was placed. Accordingly, we remanded to the WCJ for a specific credibility determination regarding the medical evidence presented since each medical expert gave differing testimony as to whether Claimant continued to suffer residual disability when she signed the final receipt. Additionally, we remanded for a definitive finding of whether Claimant's disability terminated at the time she signed the final receipt.
Following remand, the WCJ entered the following relevant findings:
5. Upon remand, after scrutiny of the expert medical opinions, we find that Dr. Feinstein's opinion is the most credible because it is supported by clinical studies. Dr. Feinstein reviewed x-rays, an MRI and an EMG which specifically connected the Claimant's feelings of discomfort to nerve problems associated with her diabetes. We also noted that Dr. Janerich, who testified on behalf of the Claimant, released her to return to employment on August 6, 1990.
6. Although we are very sympathetic to this Claimant, the preponderance of medical evidence shows that the problems she experienced following her return to work were related to her diabetes and not to her employment.
(WCJ's August 1, 1995 Decision, p. 2).
Based on the foregoing, the WCJ, by order dated August 1, 1995, again dismissed Claimant's petition to set aside final receipt. Claimant appealed to the Board, which, by order dated November 26, 1996 affirmed the WCJ's decision.
On appeal here, *fn1 Claimant argues that the Board erred in affirming the WCJ's dismissal of her petition to set aside final receipt because Dr. Feinstein's testimony was equivocal. Claimant also maintains that there was not substantial evidence to support the WCJ's finding the Dr. Feinstein was credible based upon the diagnostic tests he used, and based upon the fact that he testified regarding an area of medicine in which he was not an expert. Finally, Claimant asserts that the WCJ erroneously applied the incorrect burden of proof. We disagree and affirm the Board's decision.
Initially, we note that pursuant to Section 434 of the Workers' Compensation Act, *fn2 a final receipt is prima facia evidence of a termination of the employer's liability to pay compensation. However, a referee may set aside a final receipt if a claimant can prove by sufficient, credible, competent evidence that all disabilities attributable to the work injury in fact had not terminated at the time that she signed the final receipt. Mellor v. Workmen's Compensation Appeal Board (Wilson Tires, Inc.), 102 Pa. Commw. 504, 518 A.2d 1308 (Pa. Commw. 1986), petition for allowance of appeal denied, 519 Pa. 657, 546 A.2d 61 (1988). Where, as here, a claimant has resumed work with no loss of earning power and no obvious residual disability, the claimant must present unequivocal medical testimony to establish a continuing disability to set aside a final receipt. Id.
In support of her burden, Claimant presented the medical testimony of Dr. Albert Janerich and Dr. Lauren Argenio. Both of these experts opined that Claimant continued to suffer from some residual disability related to her work injury when she returned to work. Employer, in opposition to Claimant's petition, presented the medical testimony of Dr. Peter Feinstein. Dr. Feinstein testified that in his opinion Claimant had recovered from any and all work related disability at the time she signed the final receipt. Dr. Feinstein further testified that any residual discomfort Claimant had following her return to work was not due to her work injury, but was related to an underlying diabetic condition she had. Dr. Feinstein's testimony in this regard was unequivocal. He testified as follows:
Q. Okay, excuse me. Doctor, going back to the last time you saw her prior to December 30th and that would have been August 6th, did you have an opinion with regard to whether she had recovered from her injuries of April 17th?
A. I indicated at that point that she could return to work in about two weeks and I felt that overall her examination did not correlate with her subjective complaints. So, I although not stating it - I would have to say that she - although I didn't state it in the letter, I felt that she had recovered from her work related injuries.
Q. I see. Doctor, based upon your examinations of her, the diagnostic tests that you have reviewed and any medical reports or records that you had reviewed, did you within a reasonable degree of medical certainty reach a diagnosis with regard to her as of your examination of August 6, 1990?
A. Yes.
Q. And what was that diagnosis?
A. I felt once again at best she might have a sprain or strain or myofascial type of problem in her neck area. That was certainly giving her the benefit of the doubt - not by any objective testing.
Q. Had she recovered from that injury as of that examination?
A. I believe that she did.
Q. And doctor, you indicated before that she had a problem, a neuropathy resulting from her diabetes. Did you reach that diagnosis?
Q. Was that related to her work?
A. No, it was not.
(Dr. Feinstein's Deposition, pp. 16-17).
The WCJ, in finding of fact 5 of his August 1, 1995 decision, noted above, specifically found Dr. Feinstein to be credible. Claimant, however, maintains that the WCJ erred in finding Dr. Feinstein credible since the WCJ premised this finding upon the fact that Dr. Feinstein relied on clinical studies in reaching his Conclusion that any residual disability suffered by Claimant was caused by her underlying diabetic condition. Claimant asserts that because Dr. Feinstein testified that he did not review the diagnostic tests which lead to his reaching this Conclusion until three months after Claimant signed the final receipt, the WCJ's credibility determination regarding Dr. Feinstein is in error. *fn3
Initially, we note that the WCJ in a Workers' Compensation proceeding is the ultimate fact finder and is the sole authority for determining the weight and credibility of evidence. As such, the WCJ is free to accept or reject the testimony of any witness, including medical witnesses, in whole or in part. Casuccio v. Workmen's Compensation Review Board (Scheidemantle), 72 Pa. Commw. 270, 456 A.2d 1117 (Pa. Commw. 1983).
Although Dr. Feinstein did, upon subsequent review of certain diagnostic tests, conclude that any residual disability suffered by Claimant when she returned to work was a result of her diabetes, he unequivocally testified that as of his examination of Claimant on August 6, 1990, one month before Claimant signed the final receipt, she was completely recovered from her work-related injuries. Dr. Feinstein also indicated that as of his August 6, 1990 exam, Claimant's symptoms related to her diabetic condition were "basically benign." (Dr. Feinstein's Deposition, p. 20).
In addition to the foregoing, Claimant argues that the WJC erred in relying on any testimony Dr. Feinstein gave relating Claimant's residual disabilities to her diabetes because Dr. Feinstein is an orthopedic surgeon and, therefore, is not an expert in the field of medicine regarding Claimant's diabetes. However, we note that an expert medical witness in a workers' compensation proceeding is qualified to testify outside of his medical specialty, and any objection to that testimony goes to the weight of the evidence, not its competency. Kocher v. Workmen's Compensation Appeal Board (B.G. Coon Construction Co.), 52 Pa. Commw. 106, 415 A.2d 162 (Pa. Commw. 1980); Nelson v. Workmen's Compensation Appeal Board (Elliot Co.), 106 Pa. Commw. 301, 525 A.2d 1284 (Pa. Commw. 1987); Vital Signs Institute v. Workmen's Compensation Appeal Board (Burke), 114 Pa. Commw. 191, 538 A.2d 617 (Pa. Commw. 1988).
Based on the foregoing, we conclude that the WCJ's findings were supported by substantial evidence, no errors of law were committed and no constitutional violations occurred. Accordingly, we affirm the Board's order.
SILVESTRI SILVESTRI, Senior Judge
AND NOW, this 6th day of August , 1997, the order of the Workers' Compensation Appeal Board dated November 26, 1996 is affirmed.
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- For the German television channel, see RTL Crime (Germany).
- For the Dutch television channel, see RTL Crime (Netherlands).
In March 12 2015, RTL Plus was split in three different channels: the same three theme-channels and their identities from Germany but as croatian versions.
| RTL Televizija | RTL2 | RTL Kockica | RTL Living (HD) | RTL Crime (HD) | RTL Passion (HD) | RTL Croatia World


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New technoloy gives police eyes inside schools
Unique surveillance video crime-fighting tool gives Baltimore, OH police dept. an edge in the event of a school shooting, allowing them to see every room of a school from their squad.
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