Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, July 16, 2011

References to employee as a pedophile not gender based; insufficient basis for Title VII hostile work environment claim

Christine v Mortgage Investors Corp, ___F. Supp.2d____(M.D.Fla, May 23, 2011) is a tough case. A male employee who claimed that his supervisors and coworkers made repeated comments and innuendos that he was a pedophile was unable to pursue his Title VII claim alleging that he was subjected to a sexually hostile environment because the alleged conduct was not based on his gender.  As the court explained:

Upon review of the complaint, the Court finds that [the plaintiff] has not alleged facts that show that the harassment disadvantagedmale  employees in general; instead, his allegations show only thathe, personally, was being ridiculed and accused of being apedophile.  While the conduct at issue is offensive andinappropriate, it is not actionable under Title VII.  See Griffithv. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004)(notingthat the plaintiff perceived that he was being ridiculed andostracized for being a child molester, but that discrimination onthat ground is not prohibited by Title VII).  Accordingly, MortgageInvestors Corp.’s motion to dismiss Christine’s sexual harassmentclaim is granted.

Plaintiff may have a defamation cause of action. However, the court declined to exercise supplemental jurisdiction over that claim.

I think there are two lines of cases which the court does not recognize. On the one hand you have the Miller case from California.  As I recall, that court held that whether or not a sexual harassment claim can be made out depends upon the degree of ridicule and harassment.  On the other hand you have decisions like this one and the 2d Circuit decision in DeCintio v. Westchester Co. Medical Center which limit Title VII to gender based claims.

Law review commentary would be most welcome.

Mitchell H. Rubinstein

July 16, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Thursday, July 14, 2011

What is Justice Stevens Up To?

Justice Stevens Is Off The Bench But Not Out Of Opinions is an interesting May 30, 2011 article from the New York Times. The article describes how Justice Stevens, now 91, is still active; he is writing a book and has commented on some controversial Supreme Court cases.

What I find most interesting is that for the first time in my memory we have three living retired Supreme Court justices; Stevens, O'Conner and Souter. Supreme Court followers will want to read this piece.

Mitchell H. Rubinstein

July 14, 2011 in Supreme Court | Permalink | Comments (0)

Wednesday, July 13, 2011

Past Practice Binding Even In The Absence Of Contractual Language

Matter of Meegan v. Brown, ____A.D.3d____(4th Dep't. Feb. 18, 2011), is an important case.  Stay applications are often sought because the grievance is not related to a provision of a CBA. The argument is that the arbitrator has no authority to add contractual language.

What about past practices? There are some older cases that require a past practice clause in the CBA; otherwise there would be no contractual violation. However, Meegan makes clear that a past practice clause is no longer required. As the court explains:

"[A] past practice concerning [fringe] benefits for current employees, even where unrelated to any specific contractual provision, cannot be unilaterally modified by the public employer" (Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332). The public employer has "a duty to negotiate with the bargaining representative of current employees regarding any change in past practice affecting [such] benefits" (id.). 

While this case did not have a past practice clause it did have a clause which the court described as follows:

In addition, the CBA contains a "Maintenance of Benefits" clause pursuant to which "[a]ll conditions or provisions beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police Benevolent Association]." Thus, respondents also had a contractual duty to negotiate a change in the past practice and lacked the authority to discontinue unilaterally the payment of the benefits at issue to police officers receiving General Municipal Law § 207-c benefits. Questions with respect to the scope and intent of the "Maintenance of Benefits" clause and the past practice are the proper subjects of arbitration, and past practice may be relied upon by the arbitrator in rendering a decision.

Query whether the decision would have been decided differently if the CBA did not have this clause. In light of the holding above, I doubt it.

Mitchell H. Rubinstein

Hat Tip: New York Public Personnel Law 

July 13, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Adjunct Law Prof Blog Surpasses Half Million Mark

Yesterday, Adjunct Law Prof Blog passed a half million visitors. This blog started as simply an idea in May 2007. Since that time, we have been cited in a number of law review articles and several well known, even famous, lawyers, judges and members of the NLRB commented on some of my postings. I recognize that many of you are regular readers and I wanted to take this opportunity to thank you for your continued support. I want to encourage you to comment on some of my postings (comments do not appear until they are approved) and to continue to send me interesting cases or issues that you would like me to highlight.

Mitchell H. Rubinstein 

July 13, 2011 | Permalink | Comments (2)

Tuesday, July 12, 2011

School bus driver suspended over display of Confederate flag on personal vehicle

Reportedly, a school bus driver in Oregon has been suspended after refusing to remove a Confederate flag from the antenna of his personal vehicle. The employee, who is employed by First Student Inc., which contracts buses for the Phoenix-Talent School District, had been driving the kindergarten bus. When the Superintendent saw the flag on the employee's truck parked at the school bus yard, he told the employee's supervisor that the flag had to go, or tha the employee had to go. The school district owns the bus yard and leases it to First Student.

Source: KOMO 4 News, 3/3/11, By Jeff Barnard (AP)


July 12, 2011 in Education Law, First Amendment | Permalink | Comments (3)

Monday, July 11, 2011

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

Matter of Hyman v Cornell Univ., 2011 NY Slip Op 01548, Appellate Division, Third Department

A Cornell faculty member alleged that a graduate student exchanged a series of e-mails. The faculty member told the student she should not contact him after the student suggested that they have a sexual affair.

When the student continued to send the faculty member e-mails, he told her that he that he would take formal action against petitioner if she persisted in communicating with him. Although the student agreed to discontinue communication, she subsequently e-mailed Cornell’s president, copying the faculty member, alleging that her "institutional rights" had been repeatedly violated by Department faculty.

The faculty member instituted proceedings against the graduate student and ultimately filed a complaint accusing her of harassment in violation of Cornell’s Code of Conduct.*

The graduate student than filed a complaint against the faculty member, accusing him of sexual harassment and retaliation. Ultimately the Cornell’s Hearing Board sent the student a written reprimand and issued a “no-contact order.”

The student sued, but Supreme Court dismissed her Article 78 petition. Subsequently the Appellate Division dismissed the student’s appeal of the Supreme Court’s ruling, stating that:

It is well settled that in reviewing a college’s or university's disciplinary determinations, "court[s] must determine 'whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings," citing Matter of Warner v Elmira Coll., 59 AD3d 909.

The court explained that only in the event the college or university “has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.”

* Cornell’s Code of Conduct makes it a violation "[t]o intentionally harass another person by . . . acting toward that person in a manner [that] is . . . severely annoying . . . and beyond the scope of free speech."

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitcehll H. Rubinstein

July 11, 2011 in Education Law | Permalink | Comments (0)

Sunday, July 10, 2011

8th Circuit Upholds NFL Lockout

Brady  v. NFL, ____F.3d____(8th Cir. July 8, 2011), is one of those cases that sport labor law fans will want to become familar with.  In a 54 page opinon, the 8th upheld the offensive lockout by the NFL, despite the fact that the players resigned from their union. The decision discusses both labor law and anti-trust law in detail. The NFL, unlike the MLB, is not exempt from the anti-trust statutes.

Mitchell H. Rubinstein

July 10, 2011 in Labor Law | Permalink | Comments (0)

NY Appellate Court Adopts Stray Remark Doctrine In Sexual Harassment Case

Ferrer v. NYS, ___A.D. 3d___(1st Dept. March 3, 2011), is an interesting case. The court adopts  the stray remark doctine. As the court explained:

Moreover, the specific conduct alleged by petitioner in the complaint and petition, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult' that [was] sufficiently severe or pervasive to alter the conditions of [her] employment'" (see Harris v Forklift Sys., 510 US 17, 21 [1993] [citation omitted]). "[I]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment" (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied 89 NY2d 809 [1997] [citations omitted]). There was no 
evidence of record which established that the specific incidents described in the petition were [*2]anything more than isolated, occasional or benign.

Mitchell H. Rubinstein

July 10, 2011 in Employment Discrimination | Permalink | Comments (0)

Saturday, July 9, 2011

Connecticut Becomes First State To Mandate Paid Sick Leave and 14th To Prohibit Disccrimination On Basis of Gender Identity

 Public Act 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees 

Connecticut also became the fourteenth state (plus DC for a total of fifteen state and state-like jurisdictions) to prohibit discrimination on the basis of gender identity or expression. Public Act 11-55, An Act Concerning Discrimination 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

July 9, 2011 in Employment Discrimination, Employment Law, Legislation | Permalink | Comments (1)

Alabama Teachers' Union To Challenge State Law Banning Union Checkoff

The Alabama Education Association (AEA) and its political action committee, has filed suit in federal court against the State of Alabama alleging that the state enacted legislation prohibiting teachers from allowing automatic payroll deductions for union dues is unconstitutional. The statute makes union members criminally liable if such dues or PAC contributions are used for “phone calling for any political purpose,” or “distributing political literature of any type.” According to the suit, “Plaintiffs are challenging legislation rushed through an extraordinary special session of a newly elected legislature, at the behest of a governor with weeks left in his final term of office, for the purpose of harming and retaliation against an employee organization because of its constitutionally protected advocacy regarding issues and candidates.” The suit also charges, ” the challenged legislation was enacted in the guise of ‘ethics reform’ but is designed to silence political opposition.”

Source: Courthouse News Service, 2/18/11

AEA legal complaint

Mitchell H. Rubinstein


July 9, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Friday, July 8, 2011

Update On My Daughter

I am delighted to report that on June 29, 2011 my 13 year old daughter received a cadavar kidney from a 14 year old donor. Linda is doing great!  Our hearts go out to that family. 

I wanted to mention something here about the power of the internet and blogs. From this blog, I received two inquires from individuals which I did not take seriously because they wanted money. It is a felony to pay for an organ. 

But, I also asked Paul Caron, over at Tax Prof Blog to post something on his website and a potential living donor was found. A wonderful young lady who is a LLM take student in Chicago volunteered. The world would be a much better place if there were more people like her.

We also founds several other potential living donors from the Facebook page entitled My Little Sister Needs A Kidney which was written by Linda's 15 year old sister Mollie whom we are very proud of.  Additionally, we signed up with which put us in touch with several other potential donors. All told I think we had 8 potential donors, but there were only 3 that we thought might actually go through with this. 

We were told that it is generally preferable to have a living donor because the Kidneys generally last longer and they are out of the body for a lesser period of time. We also expected to have to wait for a cadavar kidney and that meant Linda would have to suffer with dialysis. 

What happened to us was that Linda was declining fast and was literally one day away from dialysis when this kidney became available. Dialysis is not a cure for kidney disease and it comes with its own side effects which we wanted to avoid. Additionally, because this kidney was from a child we made the decision to go for it and we are glad that we did.

Linda was only on the National Transplant list for only 3 weeks and this was actually the second kidney which was offerred to us. We turned down the first kidney which was offerred because it was from an adult who just got our of prison. His kidney function was also not great-though it was ok. I also understand that HIV tests cannnot detect infections within the last two weeks. 

I wanted to thank everyone who supported us through this tough ordeal. While it is not over and there is still a chance of rejection, we are on our road to recovery. 

Mitchell H. Rubinstein

July 8, 2011 | Permalink | Comments (3)

Chief Justice Roberts Comments On Legal Scholarship Today

I am delighted to see that Chief Justice Roberts recently commented on contempory legal scholarship. The American Constitution Society Blog provides a picture of Chief Justice Roberts and summarizes his speech as follows:

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A law professor responded   "more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Chief Justice remarks are right on point. The legal academy focus on theory and is largely composed of professors who never practiced law. Law schools look to hire someone with a JD/Ph.d from Ivy league school and give little weight to litigation or other legal experience. My own law review scholarship has been crticized by some as "practice orientated." Law review scholars often cite each other and some do not even cite cases. 

Everyone I talk with about this agrees that there is too much focus on theory. But when are the law schools going to change? Unfortunately, I do not see change happening. 

Mitchell H. Rubinstein


July 8, 2011 in Law Professors, Law Review Articles, Law Review Ideas, Law Schools, Supreme Court | Permalink | Comments (25)

Thursday, July 7, 2011

Parents who unilaterally placed student in private school not entitled to tuition reimbursement under IDEA

S.H. v. New York City Dep’t of Educ., ____F.Supp. 2d___ (S.D. N.Y. Feb. 18, 2011), is an interesting case. The SDNY held that the parents of a special education student who was denied a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), were not entitled to tuition reimbursement under IDEA for unilateral placement of the student in a private residential school because that placement was not appropriate. While conceding that a parent’s failure to meet the mainstreaming requirement of IDEA in unilaterally placing their child  is not fatal to parental reimbursement, the court determined that it is a factor in considering the appropriateness of the parent’s choice.

In this case, the parent was unable to satify prong two under the Burlington line of case (that the private placement is appropriate) even though it established prong one (a FAPE was not provided).

Mitchell H. Rubinstein

July 7, 2011 in Special Education Law | Permalink | Comments (0)

Wednesday, July 6, 2011

Students entitled to permanent injunction protecting free speech rights to wear “Be Happy, Not Gay” t-shirts


Zamechik v. Indian Prairie Sch. Dist. #204, ____F.3d____ (7th Cir. Mar. 1, 2011), is an interesting case. The 7th Circuit held that students are entitled to a permanent injunction prohibiting a school district from banning them from wearing clothing at school displaying the message “Be Happy, Not Gay,” plus nominal damages. The panel concluded that the evidence presented by the school district was insufficient to satisfy the Tinker substantial disruption standard.  It found the evidence of past disruption, prior to the wearing of the “Be Happy, Not Gay,” negligible. It also found that some of the evidence was barred by the doctrine of “heckler’s veto,” because it used speech that contained no fighting words, which would not have moved a reasonable person to a violent response, to justify banning the speech.

Mitchell H. Rubinstein


July 6, 2011 in Education Law | Permalink | Comments (0)

Tuesday, July 5, 2011

73 % of Employers Obtain Summary Judgement In Employment Discrimination Cases

I bring  Diaz v Jiten Hotel Management, Inc., ___F.Supp.2d____, n. 3 (D Mass Jan. 20, 2011) to your attention where Judge Nancy Gertner wrote: 

 “I am troubled by recent statistics that suggest that seventy percent of summary judgment motions in civil rights cases and seventy-three percent of summary judgment motions in employment discrimination cases are granted. See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment Activity …. “

 Mitchell H. Rubinstein


July 5, 2011 in Employment Discrimination | Permalink | Comments (0)

Monday, July 4, 2011

Defined Benefit Plans Becoming A Thing of The Past

Early Retirement A Scary Health Care Option is an interesting June 28, 2011 article carried by CNN. It is about how less and less employers are offerring retirement insurance. The article is not well written and it is unclear to me whether the article is referring to retiree health insurance or to defined benefit plans. As the article states:

 Employers are getting out of the retirement insurance business. This could be worrisome for American workers who want to retire, before hitting the Medicare-eligible age of 65.

A majority of large employers today offer some form of retiree insurance -- both to early retirees and to retired workers who are Medicare eligible.

But a new survey of 250 large companies by Towers Watson shows that many of them have pared back on their retiree insurance plans and others are planning to discontinue them permanently.

Stuart Alden, Towers Watson's senior health care consultant, said these changes are "significant"

47% of employers polled for the Towers Watson's annual retiree benefits survey said they've already made changes to retiree insurance plan designs.

In any event, it is hoped that this story will be a wakeup call to the general public that we are going to have a crisis with respect to  many retirees who can no longer count on retirement plans and retirement health insurance.

Mitchell H. Rubinstein


July 4, 2011 in Employee Benefits Law | Permalink | Comments (0)

Sunday, July 3, 2011

Great Conference Sponsored By St. John's LS at Cambridge Univ, July 20-22, 2011

If you are free between July 20 and July 22, 2011, St. John's University School of Law is hosting a wonderful conference: Worlds of Work: Employment Dispute Resolution Systems Across The Globe Fitzwilliam College, Cambridge University, July 20-22, 2011. There is still time to register and to submit papers for publication consideration in the law review. 

A copy of the agenda is available by clicking  Download CAMBRIDGE Conference Agenda -6-14-2011 Registration has been extended and you can register by clicking here

I am a member of the Board of St. John's Law School Center for labor and employment law and though I am admittedly biased, I can tell you that I have gone to virtually every one of their conferences in the last 7 years and each one is better than the other. 

The list of speakers include at least two former members of the NLRB, several arbitrators, the Director of the FMCS, several partners from major law firms and several well known labor law professors. 

What is so wonderful about conferences sponsored by the Center of Labor and Employment Law, and this conference in particular, is that it brings together academics with practicing lawyers. The conference is not about theory; rather it is about real life issues facing labor and employment lawyers today. 

Though I will not be able to join you at this conference (I was going to present a paper) due to a personal family emergency, I do hope that you would consider this conference if you have some time.

As an added bonus, registration includes 3 nights in the dorms at Cambridge University. Imagine that. 

Mitchell H. Rubinstein

July 3, 2011 in Conferences, CLE, Conferences, Faculty | Permalink | Comments (0)

Saturday, July 2, 2011

Obama Administration Cracks Down On Hiring Of Undocumented Workers

IRCA, passed in 1986, made it illegal for employers to hire undocumented workers. It also made it unlawful for employers to hire anyone without proper documentation. You may recall that when you were hired for your job, you had to fill out an I-9 form. That form is required by IRCA. The problem with the law however, is that it was not unformily enforced. 

It appears, however, that things may be changing, at least according to this May 29 ,2011 New York Times article. As the article states:

After months of criticism from Republicans who said President Obama was relaxing immigrationenforcement in workplaces, the scope of the administration’s strategy has become clear as long-running investigations of employers have culminated in indictments, convictions, exponentially increased fines and jail sentences. While conducting fewer headline-making factory raids, the immigration authorities have greatly expanded the number of businesses facing scrutiny and the cases where employers face severe sanctions.

Mitchell H. Rubinstein


July 2, 2011 in Employment Law | Permalink | Comments (0)