Wednesday, September 30, 2009
challenge to his suspension due to poor grades. Students making such challenges almost never prevail because they have a tough burden to meet. The court described the applicable standard as follows:
Unlike a student at a state institution, a student at a private university is not affordcd “the Full panoply of’due process guarantees.” Matter of Delta Corp, v. Colgate
Univ., 176 A.D.2d 11, 13 (3d Ilcp’t 1992). Instead, when reviewing a determination made by a
private university, judicial intervention will bc warranted if the court concludes that the private
university did not substantially observe a university establishcd procedural rule or guideline.
Tedtxhi, supra, 49 N.Y .2d 660. ‘Therefore, in order to warrant judicial intervention in this instance, petitioner must show that the University failed to substantially comply with one of its own published procedural guidelines. Petitioner has failed to do so.
Mitchell H. Rubinstein
Evidence Prof Blog is putting together a list of law professors who blog, available here. Unlike some other lists, adjunct profs are included and therefore, this blog is included. Readers may find this posting of interest.
Mitchell H. Rubinstein
The N.Y. Times reported on August 17, 2009 that the Supremes granted cert. in an executive compensation case. Here. The case arises out of the 7th Circuit and generated a strong dissent from Judge Posner with regard to an application for a hearing en banc. The case involves large fees paid to mutual fund advisers. Though the article did not discuss the legal issues, my bet is that they involve breach of fiduciary duty claims under ERISA.
Mitchell H. Rubinstein
DeFreitas v Horizon Investment, ___F.3d___(10th Cir. August 14, 2009, is an interesting case. Plaintiff was discharged the day after telling
her employer she needed a full six weeks off to recover from a
hysterectomy (per doctor’s orders). The court held that she presented sufficient evidence to
make out a prima facie claim for FMLA interference. The
supervisor expressed concern about the six-week time frame and said his
sister had returned to work a few days after her hysterectomy. In
explaining the discharge, the supervisor said: “You are very talented
and I know, when back in the pink of health, [you] will bounce back and
secure another job without even a glitch.” He told a prospective
employer that the employee left the company due to “illness” and, as
for “areas for improvement,” he wrote “take better care of herself.” As
the court observed, ”One reason that a reasonable jury could reject
Defendants’ [alternate] assertions regarding the grounds for firing her
is that there appears to have been another ground for her firing, a
very simple, commonsensical one—namely, that she was missing too much
work. This is hardly an unheard-of reason for an employer to discharge
an employee.” Noted the court: “It would be eminently reasonable to
believe that an employer who was ignorant of the FMLA,” as the employer
here admitted, “would engage in the very practice that the FMLA was
enacted to prevent.” Accordingly, the appeals court found a genuine
issue of fact remained as to whether the plaintiff would have been
fired regardless of whether she took FMLA leave.
Sometimes you just cannot make these cases up.
Mitchell H. Rubinstein
Above the Law is reporting on a Craigslist advertisement placed by a Menlo Park, California law firm seeking an attorney(s) willing to work for free in a 6 to 12 month "internship" with the possibility of a later shot at a paid position if they "distinguish themselves."
Here's the ad:
The current economic climate has made it difficult for young lawyers to find paid positions. Employment prospects improve with experience and a stronger resume. Good experience with a top notch firm is what we offer. If you can realistically make a six to twelve month commitment and can get by without compensation (other than billable travel, mileage, parking and related expenses), this is an excellent opportunity. We cannot make any promises of future paid positions. Candidates who have proven and distinguished themselves during internships, will be considered for future paid positions with the firm.
ATL readers are excoriating the firm in the comment section for exploiting the desperate and unemployed, making this ploy for some temporary free help a net loss for the firm.
Also check out the poll run by ATL in which readers are asked whether they are desperate enough to take an unpaid, full time job or would rather "sit on [the] couch doing bong hits."
The New York Times is reporting that a U. of Binghamton adjunct who taught human development for eleven years is alleging she was dismissed because of her criticism of the school's preferential treatment of athletes, including pressure to change grades, during an interview with the NYT's interview last February.
The lecturer, Sally Dear, who taught human development for 11 years, said she felt the decision was linked to her criticism that appeared in a New York Times article in February.
Dear said that the university never investigated her claims and that she hoped the new SUNY chancellor, Nancy Zimpher, who has spoken out recently against the basketball program’s pattern of misbehavior, would pursue the matter.
“I’m being fired for being ethical,” Dear said. “I have no doubt about that whatsoever.”
Gail Glover, a spokeswoman for the university, said Tuesday that Dear’s accusation “is not accurate.”
Dear’s dismissal notice cited the “uncertain fiscal environment” and “strategic reprioritization of resources across the university.” Dear said other adjunct lecturers had been let go, but two faculty members have been added this year. Glover acknowledged that the university was in the midst of unprecedented budget cuts.
If Professor Dear's allegations are true, it underscores how the lack of academic freedom protections for adjuncts impacts their willingness and ability to speak out on controversial issues both in and out of the classroom. We had previously reported on a similar incident in which an adjunct was allegedly let go because of his unpopular views about the school's administration.
Given the increasing reliance of universities on adjuncts and contract professors who have no academic freedom protections, these disturbing stories do not portend well for the future of higher education where young minds are supposed to be challenged by the sometimes controversial and provocative views of their professors.
You can read the full New York Times story here.
Hat tip to Inside Higher Ed.
That's the question being asked at the Chronicle of Higher Ed blog where readers are encouraged to post their opinions. For adjunct law profs, many of whom also practice, it might make it more difficult to maintain a professional persona outside the classroom if one develops the reputation as a "character" inside the classroom, but it's an interesting question nonetheless. As the author of the CHE piece says:
Academic novels are rarely at a loss for such real characters, for they are the stuff from which undergraduate memories are made. In many cases, such quirky professors are marvels in the classroom. I could spend the better part of a day describing some of the teachers I had during my freshman year alone; I am keenly aware, however, that they shaped the thinker I am today. In fact, I often have wondered if the characters weren't preferable to most of the "plain vanilla" faculty members whom I now barely remember.
Please feel free to leave your thoughts below, or join the other CHE commenters here.
Tuesday, September 29, 2009
Supreme Court Oral Argument Preview-RAILWAY LABOR ACT, ARBITRATION, COLLECTIVE BARGAINING, DUE PROCESS
There is one major labor case scheduled for oral argument in the Supreme Court on Oct. 7, 2009.
Five railroad employees filed claims through their union, the Brotherhood of Locomotive Engineers and Trainmen (“Brotherhood”), contesting disciplinary charges imposed by the Union Pacific Railroad (“Railroad”). The National Railroad Adjustment Board dismissed the case for lack of jurisdiction because the Brotherhood had failed to submit written evidence that the parties had met in conference. The District Court affirmed the Board’s decision. However, the Seventh Circuit Court of Appeals reversed in favor of the Brotherhood. The Seventh Circuit found that the due process rights of the Brotherhood were denied, because it was not clear when and how evidence of conferencing should be presented, and dismissal for reasons that were not clear at the time of filing functioned as a denial of its due process rights. The Railroad subsequently appealed this decision to the Supreme Court arguing that because submission of evidence is solely within the arbitrator’s discretion, the Board’s award should be final and binding. In granting certiorari, the Supreme Court’s decision will test the scope of the federal government’s power to review arbitration disputes between private parties. The Court’s decision will also affect future labor disputes and collective bargaining agreements in the railroad industry.
The Railway Labor Act (“RLA”), 45 U.S.C. §§151 et seq., sets forth a comprehensive framework to resolve labor disputes in the railroad industry through binding arbitration before the National Railroad Adjustment Board (“the Board”). The statute provides that the Board's judgment “shall be conclusive . . . except . . . for”: (1) “failure . . . to comply” with the Act, (2) “failure . . . to conform or confine” its order “to matters within . . . the [Board’s] jurisdiction,” and (3) “fraud or corruption” by a Board member. 45 U.S.C. §153 First (q). This case involves the Board’s denial of employee grievance claims for failure to comply with its rules governing proof that the dispute had been submitted to a “conference” between the parties. 45 U.S.C. §152 Second. The Seventh Circuit held that the award must be set aside because the Board violated due process through retroactive recognition of a supposedly “new rule.” The questions presented are:
- Whether the Seventh Circuit erroneously held, in square conflict with decisions of the Third, Sixth, Tenth, and Eleventh Circuits, that the RLA includes a fourth, implied exception that authorizes courts to set aside final arbitration awards for alleged violations of due process.
- Whether the Seventh Circuit erroneously held that the Board adopted a “new,” retroactive interpretation of the standards governing its proceedings in violation of due process.
- Are final arbitration awards determined by the National Railroad Adjustment Board subject to review for violations of due process?
- Was the National Railroad Board applying a “retroactive” interpretation of the procedural
Oral argument: Oct. 7, 2009
Appealed from: United States Court of Appeals for the Seventh Circuit (Apr. 9, 2008)
Reproduced from LII Cornell Law School
Mitchell H. Rubinstein
The First Monday in October is coming up and the National Law Journal has an excellent article previewing the major cases, available here. Though the article states that no employment cases were taken, that is only partially correct. There is an important labor arbitration decision under the RLA that is pending and which is discussed in the posting below.
Mitchell H. Rubinstein
You don't see a case like NLRB v John T. Jones Construction Co, ___F.3d____(8th Cir. August 14, 2009), everyday. Affirming an NLRB supplemental decision, the Eighth Circuit held the Board did not err in failing to offset fringe-benefit contributions by interim employers against the gross backpay owed to discriminatees, rejecting the employer’s contention that such an award results in a windfall to the employees and dismissing the employer’s reliance on a Title VII discrimination case for the proposition that fringe benefits should be deducted. “Title VII precedent is not persuasive in this unfair-labor-practice case,” the appeals court wrote. Citing instead the NLRB Casehandling Manual, the court held its “general distinction between cash and non-cash compensation is not arbitrary or unreasonable, because cash is immediately available.” The Board does allow for an offset for “equivalent” fringe benefits, but in effect requires them to be “identical,” which was not the case here. The employer also did not meet its burden of showing the Board was arbitrary or unreasonable in including in its backpay calculation the overtime hours worked by comparable employees. Finally, the court rejected the employer’s claim that a four-week backpay award should be reduced for one employee who was a union “salt,” as he would have quit his job within less than four weeks. The Board correctly found this employee would have remained employed for the entire backpay period even if he was a salt.
Mitchell H. Rubinstein
(Daugherty v Wabash Center, ___F.3d___(7th Cir. August 14, 2009), is an unusual FMLA case. Plaintiff contended that his employer was “absolutely prohibited from terminating him” while he was out on FMLA leave. He also claimed an employer who discovers a reason to fire an employee while the employee is out on leave must first reinstate him upon conclusion of his medical leave before discharging him. The Seventh Circuit disabused the plaintiff of these notions. The FMLA only entitles employees to the same position they would have otherwise been entitled to, so “an employer may terminate an employee—even when on leave—if the employer discovers misconduct that would justify termination had leave not been taken.” Such was the case with the plaintiff here, where it was undisputed that he had performance issues and he presented no viable defense to the employer’s discovery that he deleted thousands of company computer files and purchased computers on the employer’s account that were delivered to his home. Further, while the plaintiff was on leave, the employer requested that he turn over his keys and computer passwords. The plaintiff insisted that by making these requests, the employer was asking him to “work.” The appeals court dismissed this contention as well, rejecting the employee’s claim that he was unlawfully discharged for refusing work while on medical leave.
Mitchell H. Rubinstein
Monday, September 28, 2009
Peter Schmidt wrote an excellent Oct. 2, 2009 article for The Chronicle Of Higher Education entitled "Professors Are Pitched Lawsuit Protection." (registration required). It discusses an issue that professors do not like to talk about-being sued. Professors can be sued for defamation or worse yet for sexual harassment. Fortunately, as the article states, insurance can be purchased at very affordable rates. Unfortunately, most profs do not take advantage of this.
The article features a law professor who was threatened with a defamation lawsuit for something she wrote in a law review article. As the article states:
Merle H. Weiner, a professor of law at the University of Oregon, received two rude surprises after the University of San Francisco Law Review published her article about how international courts treat domestic-violence victims.
The first was that the plaintiff in a case she had cited in her footnotes accused her of defamation and threatened to sue her if she did not remove a reference to him in versions published online.
The article is not written for lawyers. Therefore, we do not why the university was not responsible. Seems to me that with respect to scholarship, the university is generally responsible because the prof is working within the scope of his or her employment. Sexual harassment cases are a bit different, but I am even aware of cases on the secondary level holding that school districts have a duty to defend such suits.
Mitchell H. Rubinstein
On Sept. 28, 2009, the Chronicle of Higher Education ran an interesting article entitled Facebook, The New Classroom Commons?(registration required for full article).The article highlights the pros and cons of friending students on Facebook.
On the one hand, it crosses social boundries and may give students access to private information about the professor. On the other, it may give the professor an insight to student opinions about class and the subject matter being taught. As the article states:
A neighbor is busy, a colleague is tired, a long-lost friend wants to know which 80s band best describes me. A few of my students are stressed about their forthcoming internships, and another is working on her research. I know this because their Facebook postings tell me so.
Without a doubt, my Facebook page provides plenty of minutiae. But is it useful in the context of academic relationships, specifically with students? Is Facebook a new commons keeping us connected?
I for one believe there is a happy medium. Profs who use face book should set up a separate page for class work and not friend anyone but students. They can have a separate friend page for personal use.
On a different note, I have noticed that more and more profs are friending each other on face book. I think this is a good thing. It encourages communication and the exchange of ideas.
Mitchell H. Rubinstein
Contributing Editor Jim Levy posted an interesting story on Legal Writing Prof Blog about a case being thrown out for poor stapling. As Jim states:
The New York Law Journal is reporting (subscription only) that a New York state judge dismissed the plaintiff's complaint because it was stapled in such a negligent manner that it caused physical injury to all who handled it.
"[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them," Supreme Court Justice Charles J. Markey wrote in Jones v. Fuentes, 29865/2008. "Such negligence on the part of counsel shows a lack of consideration."
Long Island plaintiff's attorney Jeffrey Hirsch told the NYLJ that in the more than 5,000 cases he has handled, the court has never before criticized his stapling skills. However, a spokesperson for the judge said that the staple in question was dangerous enough to draw blood, twice. Must have been a helluva staple.
According to the article, the case in question was a state lower court decision. This case demonstrates that courts are serious about their rules. Many courts, particularly appellate courts, have rules about the size of margins, the number of pages, font size and even the color of the briefs. While this case was extreme, a word to the wise is that litigants should review the court's rules before they file anything.
Mitchell H. Rubinstein
, ___F.3d___(7th Cir. August 7, 2009), is an important decision to be aware of. An African-American worker whose coworkers displayed nooses and threatened him experienced a racially-hostile workplace, but his employer was not liable for the coworkers’ conduct thanks to its response to the situation and the black worker’s reticence to talk about the harassment. The Seventh Circuit held that even though the harassment did not stop, the employer’s response to known harassment was prompt and effective. Immediately upon discovering a noose hanging in a work area, the employee’s supervisor had it taken down and inquired as to who put it there. The supervisor instituted an investigation, spoke with other shift leaders, attended a meeting with her shift where a HR representative stressed that workplace harassment was intolerable, and asked the employee every night whether he know who had hung the noose. The HR representative conducted the employee meeting, met with the black employee twice and offered to transfer the employee to another shift. However, the employee would not identify his harassers to his employer and did not report any incidents beyond the initial display of a noose. Instead he reported the harassers’ identities and behavior to the local police department. According to the court, the employee’s reticence did not excuse his failure to provide the detail necessary for his employer to understand the nature of the harassment and to respond appropriately. The supervisor did, however, make one serious mistake: after the noose was taken down, she hung it on a bulletin board in her office for several hours where it was visible through a glass window in her office door. While two judges on the panel characterized this as an “ill-advised” misstep and contrasted it with her otherwise diligent actions to end the harassment, a concurring judge indicated that that the noose in the supervisor’s office could be characterized as harassing but that the employer was not liable for that act because the employee never reported it as an act of harassment.
Saturday, September 26, 2009
Upshaw v Ford Motor Co, ___F.3d___ (6th Cir. August 14, 2009), is an interesting decision.
An employer admitted that it mistakenly promoted white candidates based on faulty performance ratings, but the mistake was a legitimate, nondiscriminatory reason for failing to promote an African-American employee. The 6th affirmed summary judgment to an employer on the plaintiff’s failure-to-promote race discrimination claim. The employer did not know of the faulty ratings until discovery took place in the litigation at hand, thus its changing defense in failing to assert its claim of “mistake” in earlier responses to the EEOC was not evidence that the mistake was a pretext for discrimination. The appeals court reversed summary judgment to the employer on the employee’s retaliation claim, however. The court cited the close temporal proximity between the plaintiff’s series of EEOC filings and her discharge, evidence that the plaintiff was subject to heightened scrutiny soon after filing a charge (including evidence that the employer sought out information in an effort to document the plaintiff’s complaint activity), as well as evidence that at least two of the four proffered reasons for discharge do not typically warrant any formal discipline at the plant.
Law review commentary on this issue would be most welcome.
Mitchell H. Rubinstein
The National Law Journal ran an interesting August 14, 2009 article about AT&T Trouble Shooters who brought a class action because they were not paid while on call, here. Unfortuntately, the article does not do a good job in outlining the law. A lot may depend if they are considered "exempt" or "non-exempt" employees who must be paid over-time.
Mitchell H. Rubinstein
Matter of Wilson v Town of Minerva Town Bd., 2009 NY Slip Op 06214, decided on August 13, 2009, Appellate Division, Third Department
The Town of Minerva appointed Philip Wilson as a maintenance mechanic in 2001. When completing his employment application, Wilson answered “no” when asked if he had ever "been convicted of a crime (misdemeanor or felony)."
This was inaccurate as in 1999 Wilson had been convicted of driving while intoxicated (DWI) in 1999. In 2007, Wilson was again arrested and convicted for DWI. As a result, Minerva filed §75 disciplinary charges against Wilson alleging “incompetence due to his convictions and misconduct due to his answer on the employment application.”* Ultimately the Hearing Officer found Wilson not guilty of the incompetence charge but guilty of misconduct and recommended his termination. Minerva’s Town Board, however, found Wilson guilty of both charges and terminated his employment.
In response to Wilson’s challenge to the Board’s determination, the Appellate Division said that the termination of his employment “must be upheld if supported by substantial evidence.” Noting that Wilson admitted that he was twice convicted of DWI [and that] [h]is job duties as a maintenance mechanic required him to operate motor vehicles during the course of his employment,” the court sustained the boards determination.
The Appellate Division noted that the Town's insurance agent testified that “pursuant to underwriting guidelines for the Town's insurance carrier, a person with two DWI convictions is not an acceptable driver and if the Town continued to employ such a person its insurance carrier would not renew the current policy.” Further, noted the court, “The nonrenewal would occur regardless of whether that employee drove Town vehicles or drove his or her own vehicle on Town business.”**
The court also found that substantial evidence also supported the Town’s the finding of misconduct in that the employment application contains a false statement regarding petitioner's criminal history.***
Finally, the Appellate Division said that the misconduct charge was not time-barred, as Wilson's actions could constitute the crime of offering a false instrument for filing in the second degree.
Under the circumstances, said the court, the penalty of termination is not so disproportionate as to shock our sense of fairness and dismissed Wilson’s appeal.
* 50.4 of the Civil Service Law provides that “the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud.”
** While the Town would be able to secure insurance through another carrier, the Town’s insurance agent indicated that such insurance would be at a higher cost and would provide reduced coverage.
*** Wilson testified at the disciplinary hearing that “he was unaware that DWI was a crime, but also testified that his wife completed the application and he failed to read it before signing it,” which testimony the Hearing Officer found to be “incredible.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06214.htm
Reprinted with permission New York Pubic Personnel Law
Mitchell H. Rubinstein
Friday, September 25, 2009
Here's an interesting article from Inside Higher Ed about the difference between teaching at a non-profit versus a for-profit university from an adjunct's perspective. There are already a few for-profit law schools, including Florida Coastal, California Western, and Phoenix, and those numbers could grow. As far as how adjuncting at a for-profit may differ:
[T]he single most defining characteristic of for-profits, in my experience [as an adjunct], has been the control of the curriculum. Since the institution is selling a product, quality control (it is a business modeled on best business practices) dictates that one control all steps of the supply-chain in order to ensure quality. This is great when one is producing cars, but not so much fun when, as an adjunct (hired without benefits, at-will firable, with “competitive” — read low — wages) you are expected to, factory like, show up, facilitate and move the product along. “Show, don’t tell” becomes “show up; don’t dwell.”
You can read the rest of the article here.
Wednesday, September 23, 2009
On Sept. 23, 2009, the EEOC published new ADA regulations under the amended statute. A copy of the Federal Register is available here. The regulations are significant for the following reasons:
- They interpret broadly the definition of “disability”;
- Significantly lower the threshold to establish an individual is “substantially limited,” so that an impairment need not “significantly” or “severely” restrict a major life activity in order to meet the standard, and delete the terms “condition, manner, or duration” under which a major life activity is performed, in order to effectuate Congress’s instruction that “substantially limits” is not to be misconstrued to require the level of limitation, and the intensity of analytical focus, applied by Supreme Court cases;
- Expand the definition of “major life activities” by providing two non-exhaustive lists of included activities and functions:
- the first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working;
- the second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions, many of which were included by Congress in the ADAAA. The EEOC has included examples of conditions deserving of coverage, such as cancer, epilepsy, HIV and AIDS;
- Eliminate consideration of the ameliorating effect of mitigating measures, other than ordinary eyeglasses or contact lenses, in assessing whether an individual has a “disability”;Readers will recall that the ADAAA legislatively overrules the Sutton Supreme Court decision.
- Include an impairment that is episodic or in remission as a “disability” if it would substantially limit a major life activity when active; and
- Significantly change the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity. I
The proposed regulatory changes clarifys that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation. .
There is a 60-day public comment period. Therefore, these proposals may not be final.
Hat Tip: Jackson Lewis Email Alert