Adjunct Law Prof Blog

Reportedly, Washington state court rules school district not liable for student newspaper report that local businessman is “slumlord”

Courthouse News Service reports that a lower court Judge ruled that Seattle School District No. 1 is not “vicariously liable” for allegedly defamatory statements in an article published in a student newspaper. In dismissing the suit, Judge Prochnau said, “As a matter of law, plaintiffs are unable to prove that, consistent with the First Amendment, the defendant Seattle School District should have censored the student’s speech.” The statement was also protected as opinion. The court's brief order can be found here.

Source: Courthouse News Service, 8/2/11, By June Williams

 

Missouri May Repeal Teacher Facebook Ban Law

A local newspaper, St. Louis newspaper,St. Louis Post-Dispatch, 9/14/11, By Jason Hancock ,  reports that the Missouri state legislature may repeal key provisions of the law.  In August, 2011 [two days before the law was to take effect], the Missouri State Teachers Association (MSTA) obtained a preliminary injunction. As the article states:

 The bill removes provisions from a law passed this year prohibiting teachers from having private online conversations with students. Instead, local school districts must now develop their own social media policy by March 1, 2012. Those policies must include "the use of electronic media and other mechanisms to prevent improper communications between staff members and students."

The changes come in response to a judge’s order issued last month blocking the law from taking effect because of concerns that it infringes on free-speech rights. Critics of the law believe it could cut off even the most innocent online exchanges on social networking sites like Facebook.

Mitchell H. Rubinstein

 

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing

 

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department

The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.

Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.

The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”

Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.

As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law” 

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

What is a Supreme Court Justice Worth and Does Justice Sotomayor Need A Second Job?

Justice

Min. Net Worth

Average Net Worth

Max. Net Worth

Ruth Bader Ginsburg

$10,700,013

$28,090,007

$45,480,000

Stephen G. Breyer

$4,590,061

$10,410,031

$16,230,000

John G. Roberts

$2,145,037

$3,680,019

$5,215,000

Antonin Scalia

$1,250,020

$2,130,010

$3,010,000

Elena Kagan

$1,080,020

$1,835,010

$2,590,000

Samuel A. Alito

$295,007

$580,004

$865,000

Anthony M. Kennedy

$165,003

$290,002

$415,000

Clarence Thomas

$150,002

$280,001

$410,000

Sonia Sotomayor

-$94,999

-$22,500

$49,999

OpenSecrets.org has additional information. Looks like Justice Sotomayor needs a second job!

Hat Tip: Legal Skills Prof Blog

Mitchell H. Rubinstein 

Eighth Circuit Holds Replacement Workers Not Covered by WARN Act

In a recent decision, the U.S. Court of Appeals for the Eighth Circuit held that workers hired as replacements during a strike are not covered by the notice requirements of the Worker Adjustment and Retraining Notification Act [WARN Act, 29 U.S.C.A. § 2101].Sanders v. Kohler Co., 641 F.3d 290, 32 I.E.R. Cas. (BNA) 493 (8th Cir. 2011).

Mitchell H. Rubinstein

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2d Circuit Issues Important Decision Involving Attorneys Fees Applications

MILLEA v. METRO NORTH RAILROAD COMPANY, ____F.3d____(2d Cir. August 8, 2011), is a critically important attorneys fees case that arose under the the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to many statutes. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.” 

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. 

Mitchell H. Rubinstein

Pennsylvania state court preliminarily enjoins school district from enforcing random student drug testing policy

M.K. v. Delaware Valley Sch. Dist., No. 11-434 (Pa. Ct. Comm. Pl. Jul. 21, 2011), is an interesting case. There, a Pennsylvania lower court issued a preliminary injunction barring Delaware Valley School District (DVSD) from enforcing its random drug testing policy for students participating in extracurricular activities, including athletics, and students driving vehicles to and from school. Based on the Pennsylvania Supreme Court’s decision inTheodore v. Delaware Valley Sch. Dist., 836 A.2d 75 (Pa. 2003), which held that the school district must show a specific need for a random drug testing policy in order for it to pass constitutional muster, the Court of Common Pleas concluded the students were likely to succeed on the merits of their claim.

The court found that the evidence presented by the school district failed to support its contention of widespread drug use in the school district. It also found no evidence that the drug testing policy is an effective method of deterring drug use within the district.

Mitchell H. Rubinstein

 

New York Labor Law 211-a (Labor Neutrality Statute) Preempted by NLRA

In Healthcare Association v. Cuomo, ___F. Supp. 2d___(N.D.N.Y. Sept. 7, 2011), the court in a 14 page decision held that New York's Labor Neutrality statute (Labor Law Sec. 211-a) was preempted by the NLRA. The court basically held that Congress intended to occupy the field and applied so called Machinists preemption principles relying heavly on the Supreme Court's 2008 decision in Chamber of Commerce v. Brown. 

What I found most interesting about the decision was that no union appeared as an amicus or sought to intervene. Undoubtedly, this decision will be appealed.

Mitchell H. Rubinstein

District court erred in denying backpay to successful Title VII litigant based on finding that $300,000 compensatory damages award was enough to make her whole

The 2d Circuit recently held that the lower court erroneously held that an employee who was awarded $580,000 in compensatory damages on her Title VII claims of gender bias, hostile work environment, and reprisal (which was reduced to the federal statutory cap of $300,000) was not entitled to consideration of backpay because the compensatory damages award would make her whole Bergerson v New York State Office of Mental Health, ___F.3d____( 2d Cir. July 21, 2011).  

Mitchell H. Rubinstein

FMLA retaliation claim proceeds based on single comment; employee with chronic back problem not regarded as disabled

A nursing assistant’s FMLA retaliation claim survived summary judgment based on a single comment that she was not really terminated for altering a doctor’s note. Quinn v Mercy Fitzgerald Hosp, ___F.Supp. 2d (D. Pa. July 22, 2011).  However, her ADA and Pennsylvania Human Relations Act (PHRA) claims failed under a pre-ADAAA analysis because she could not show that she was regarded as unable to perform a wide variety of jobs due to her chronic back condition.

This case demonstrates once again that a retaliation claim may be a more potent claim than the underlying claim on the merits.

Mitchell H. Rubinstein

School Law Jobs

Special Education Attorney	Harbottle Law Group	Orange County, California
Legislative Counsel	Americans United for Separation of Church and State	Washington, D.C.
General Counsel	Clark County School District	Las Vegas, Nevada

 

Bill would amend FMLA to allow parents time-off to mourn the death of a child

Legislation has been introduced in the U.S. Senate that would amend the Family and Medical Leave Act to give parents grieving the death of their child as many as 12 weeks of un paid leave. The FMLA currently only provides protection to employees need "to care" for certain family members.

The Parental Bereavement Act of 2011 (S. 1358) would add grieving over the death of a child to the list of activities for which an individual may take leave under the FMLA. The leave cannot be taken intermittently or on reduced schedule unless both the employer and employee agree. 

Mitchell H. Rubinstein

 

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

 

Matter of Veeder v New York State Police Dept., 2011 NY Slip Op 05921, Appellate Division, Third Department

The widow of a Division of State Police forensic scientist, Donna Veeder, filed an application for workers' compensation death benefits, claiming that her husband became depressed and committed suicide as a result of actions she alleged were taken against him by the Division in the course of an investigation of her late husband’s performance of his duties.

The Workers' Compensation Law Board affirmed, concluding that Workers' Compensation Law §2(7)* barred the claim since the Division's actions were made in good faith and were the result of "a lawful personnel decision involving an investigation and potential disciplinary action."

Veeder appealed contending that that §2(7) was inapplicable because her husband had committed suicide and thus his injuries cannot be "solely mental."

The Appellate Division rejected this argument, explaining that “The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry” into his performance of his duties. Accordingly, if work-related stress is not compensable under Workers' Compensation Law §2(7), “it necessarily follows that any physical injury that resulted therefrom cannot be compensable either.”

Considering Veeder’s argument that the Division’s actions in this case were not undertaken in the context of a "disciplinary action" within the meaning of the statute, the Appellate Division decided that Board's finding lacks substantial evidence in the record.

The court noted that there was “unequivocally” testimony that “there was no disciplinary action underway during the inquiry” and that the purpose of the meetings was to review the procedures employed by Veeder’s late husband “in conducting the testing and to look into ways for the laboratory to improve its testing methods.”

As the Board, having found the Division's actions to constitute a "disciplinary action" under Workers' Compensation Law §2(7), it did not reach the employer's alternative argument that its actions in that regard could also be deemed an evaluation of decedent's work under the statute, and that the stress experienced by decedent was no greater than that normally encountered in the work environment.

Accordingly, the Appellate Division vacated the Board’s determination and remanded the matter to it “for resolution of these issues.”

* Workers' Compensation Law §2(7) provides, in relevant part, that "[t]he terms 'injury' and 'personal injury' shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer"

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05921.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

NLRB Issues Notice Posting Form

The NLRB recently issued its now required Notice posting, here. It is already being challenged by none other than former NLRB member Peter Kirsanow. The complaint is here 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

Missouri enacts legislation aimed at protecting students from known sexual abusers and restricting teacher online contact with students

The Associated Press (AP) reports in the Kansas City Star that Gov. Jay Nixon has signed a bill that requires schools to share information about teachers who have sexually abused students and restricting online communication among teachers and students. The purpose of the provision is to prevent school districts from unknowingly hiring someone with a history of substantiated sex abuse allegations.The other provision in  the legislation requires school districts to develop policies by 2012 for communication between teachers and students that includes text messages, social networking websites and other electronic devices. Those polices are to restrict teachers from interacting with students on websites or in ways that are not also accessible to others, including school administers and parents.

Kansas City Star, 7/14/11, By Chris Blank (AP)

Michigan enacts teacher tenure legislation

Michigan Gov. Rick Snyder has signed  a bill into law that will make teacher performance the key factor in awarding tenure and deciding layoffs in a district instead of seniority, says the Associated Press (AP) in the Greenwich Time.

 Greenwich Time, 7/19/11, By Kathy Barks Hoffman (AP)

The Downside Of Recognizing Gay Marriages

As Same-Sex Marriage Becomes Legal, Some Choices May Be Lost is an interesting July 8, 2011 article from the New York Times. It points out that there may be some negative consequences to gay individuals who live in a state that recognizes gay marriage and decide to get married. 

As the article states:

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

There also certainly employment law implications of gay marriage with respect to pension and health insurance benefits as well as FMLA leave benefits. Don't get me wrong, I believe that anyone should be able to get married; but this is an interesting article non-the-less.

Mitchell H. Rubinstein

 

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.

 

Matter of Palandra v New York State Teachers' Retirement Sys., 011 NY Slip Op 04357, Appellate Division, Third Department

Maria Palandra was employed by the Elmont Union Free School District and eventually became its superintendent of schools. In 2000, Palandra and the school district entered into a contract setting her salary and providing that she would receive payment for her accumulated vacation and sick leave upon her retirement.

Subsequently the parties entered into a new agreement that eliminated the career increment provision and barred Palandra from receiving payment for unused leave time upon her retirement. Instead, Palandra’s was retroactively raised to $224,268, with increases in following years capped at 5%.

Ultimately the New York State Teachers’ Retirement System [TRS] excluded those increases from the calculation of Palandra's final average salary and reduced her retirement benefits accordingly. Palandra sued but Supreme Court dismissed her petition.

The Appellate Division affirmed the lower court’s ruling, noting that “In order to calculate [Palandra’s] retirement benefits, [TRS] must rely upon her final average salary, defined as "the average regular compensation earned . . . during the three years of actual service immediately preceding [her] date of retirement" as mandated by Education Law §501[11] [b]. Accordingly, the Retirement System will act to prevent the artificial inflation of that figure by excluding "any form of termination pay or compensation otherwise paid in anticipation of retirement."

The court explained that Palandra had received extraordinary salary increases in the 2001-2002 and 2002-2003 school years and, indeed, had altered the terms of prior agreements to do so. Moreover, the latter increase was accompanied by the elimination of her contractual rights to obtain payments for accumulated leave time upon her retirement and an optional one-time only increment, "items that were facially excludable from her final average salary.”

The Appellate Division, conceding that “material in the record that could support a different result,” held that the Retirement System could “rationally concluded from the above evidence that the 2001-2002 and 2002-2003 salary increases were made in anticipation of [Palandra’s] retirement and excluded them from her final average salary."

The court also rejected Palandra’s claim that the System's “otherwise rational determination” was rendered arbitrary and capricious by the delay in issuing it.

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04357.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Employee not entitled to interest on back pay due upon reinstatement to his or her former position pursuant to court order

 

Miller v Nassau County Civ. Serv. Commn. 2011 NY Slip Op 05033, Appellate Division, Second Department

Roberta Miller sued the Nassau Civil Service Commission, seeking reinstatement to her former position and for back pay.

Miller appealed Supreme Court’s failure to award her predecision interest.*
  
The Appellate Division rejected her claim for “predecision interest,” noting that the award of back pay to in this instance is derived from Civil Service Law §77, "and that statute does not provide for predecision interest." Citing Matter of Bello v Roswell Park Cancer Inst., 5 NY2d 170.

§77, in pertinent part, provides that “Any officer or employee who is removed from a position in the service of the state or of any civil division thereof in violation of the provisions of this chapter, and who thereafter is restored to such position by order of the supreme court, shall be entitled to receive and shall receive from the state or such civil division, as the case may be, the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal, from the date of such unlawful removal to the date of such restoration, less the amount of any unemployment insurance benefits he may have received during such period….” 

 

.* See http://publicpersonnellaw.blogspot.com/2011/06/jurys-decision-in-favor-of-plaintiff.html for a summary of the earlier determination by the Appellate Division giving rise to this appeal.

The decision is posted on the Internet at:  
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05033.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein