Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, November 28, 2012

NLRB Interest Rate Remains At 3%


On Oct. 1, 2012, the NLRB issued an Operations Memo which stated that the Board will continue to apply a 3% interest rate in NLRB cases. It can be downloaded here.

Mitchell H. Rubinstein

November 28, 2012 | Permalink | Comments (0)

Vermont Buyouts and Other Law School News

This is a tough time to be a law school dean.  Consider Vermont Law School dean Marc Mihaly, who only four months into the job, is now facing a $3.3 million budget deficit.  With a  14% projected revenue decline on the horizon, Mihaly has announced a voluntary buyout for VLS staff which he says could be extended to faculty if there are not enough takers.  He also announced that VLS will increase its LL.M program and certificate offerings to make up for the revenue loss. Taja-Nia Henderson at Concurring Opinions, has some interesting comments on the problems and risks associated with law school faculty buyout programs.

Meanwhile, Penn State Law dean Philip McConnaughay, facing declining enrollment at the dual-campus school, has proposed to "spin off" the Carlisle campus into a separate, autonomous entity beginning in 2015.  This proposal came after state and local officials rejected his proposal to consolidatete the 1L program into the University Park campus.  Interestingly, Penn State acquired the Carlisle campus in only 12 years ago.

Ten new law schools that are either ABA accredited or seeking accreditation have opened the doors in the last ten years with new schools in Idaho, Indiana, Louisiana and Texas planning to open.  With enrollment declining and legal jobs paying enough to reasonably retire law school debt harder to find, it seems obvious that some industry restructuring, including possible consolidation or school closure, will occur.  We can expect more stories such as the ones coming out of Vermont and Pennsylvania as this process unwinds.

Craig Estlinbaum  


November 28, 2012 in Bar Association Matters, Colleges, Law Schools, Law Students, News | Permalink | Comments (0)

Tuesday, November 27, 2012

D.C. Circuit Upholds Challenge To NLRB's Health Care Rule


San Miguel Hosp. Corp. v. NLRB, ___F.3d___ (D.C. Cir. 11/02/12), is an interesting decision. The National Labor Relations Board properly certified the National Union of Hospital and Health Care Employees as the representative of a “wall to wall” bargaining unit that included professional and nonprofessional employees of an acute-care medical facility. The decision can be found by clicking here. (subscription required)

Mitchell H. Rubinstein

November 27, 2012 in NLRB | Permalink | Comments (1)

Monday, November 26, 2012

Novel to Help Jailhouse Lawyers

Interestingly, Terri LeClerq recently wrote a graphic novel to help prisioners. Here is how she describes this important project:

Maybe you wonder why inmates need help learning to write complaints (grievances).  With an average reading level of 5th grade and lots of misinformation, inmates rarely write a grievance that succeeds.  They need our help.

I've written college texts, legal writing columns, and a prison-conditions blog.  Review me at  and  I've spent 10 years creating this graphic novel

  • to help the 1 in 100 Americans in our prison system,
  • to help the courts receive credible writs, and
  • to help taxpayers avoid paying for time-consuming, frivolous, or erroneous filings.

Multitudes of prison officials and staff, court personnel, defense and plaintiff attorneys, reading specialists, and academics have reviewed the manuscript.  A professional artist and professional letterer (yep!) worked to make each page both entertaining and educational.  The formerly incarcerated who have reviewed it are ready to send a graphic novel back to their old roomies.

Additional information can about this project can be found here

Mitchell H. Rubinstein


Hat Tip: Legal Writing Prof Blog


November 26, 2012 in Criminal Law | Permalink | Comments (0)

Sunday, November 25, 2012

Employee served with disciplinary charges alleging he was intoxicated at work

Human Resources Administration v Grimes, OATH Index #1985/12   
OATH Administrative Law Judge Kevin F. Casey sustained charges that alleged that an employee was intoxicated at work.
Coworkers noticed the individual looked disheveled and was laughing and crying to himself at his desk, in marked contrast to his usual demeanor. "911" was called and the employee was taken to a hospital by the first responders.
Noting that the Emergency Medical Technician's records indicated that the first responders had made a presumptive diagnosis that employee was intoxicated based on his unsteady gait, slurred speech, and the odor of alcohol on his breath, Judge Casey found the individual’s claims to the contrary to be vague and unsupported.
The ALJ recommended that the appointing authority impose a penalty of a 20-day suspension without pay
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

November 25, 2012 in Arbitration Law | Permalink | Comments (1)

Saturday, November 24, 2012

Is Nepotism Good or Bad??

My guess is that just about everyone has an opinion about whether Nepotism is good or bad. Now, a psychologist is going to undertake a study in order to try and answer this question. The study which is taking place is reported in Psychology Today and is available here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein 

November 24, 2012 in Employment Law | Permalink | Comments (1)

Thursday, November 22, 2012

PERB’s policy of initially deferring to a contract abitiration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department
The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”
Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.
The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).
When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.
Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”
The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:
1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and
2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

November 22, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Tuesday, November 20, 2012

Law Review Article On Grammar?? What is Next

For those of you who like to correct my grammar, I am pleased to point you to a law review article which takes a contemporary look at the use of Strunk and White in the legal profession. That article is available here.

Hat Tip: Legal Writing Prof Blog

Mitchell H. Rubinstein 

November 20, 2012 in Law Review Articles | Permalink | Comments (0)

Harvard Law Review Annual Supreme Court Issue

Harvard Law Review's annual Supreme Court issue is available online here

Hat Tip:  How Appealing

November 20, 2012 in Law Review Articles | Permalink | Comments (0)

Monday, November 19, 2012

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv
The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.
The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."
The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”
In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.
The first prong addresses the question of whether the petitioner “stated a cause of action.”
The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”
In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”
Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206
The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*
In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.
Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.
* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 19, 2012 in Constitutional Law | Permalink | Comments (0)

Sunday, November 18, 2012

Employment Contracts—Discharge—Probationary Employee


Coburn v. Regents of Univ. of Cal.,  ___F.3d____(10th Cir. 10/30/12), is an interesting decision. The 10th Circuit holds that a university employee fired three weeks after he was hired for sexual comments and racial and ethnic slurs could not advance his breach of an implied employment contract claim under New Mexico law. The court concluded that the university reserved the right to discharge probationary employees at any time.

Mitchell H. Rubinstein

November 18, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Saturday, November 17, 2012

Sex Discrimination—Reasonable Accommodations—Breast-Feeding

Pitts-Baad v. Valvoline Instant Oil Change,  ___N.E.2D___(Ohio Ct. App.10/15/12), is an interesting Ohio state court appellate decision. The Ohio Court of Appeals rejects a female employee's sex bias claim based on her employer's alleged failure to accommodate her breast-feeding. The court concluded that allowing such a claim under the “sex-plus” theory of discrimination would impermissibly elevate breast milk pumping to the level of a protected status.

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein

November 17, 2012 in Employment Discrimination, Law Review Ideas | Permalink | Comments (1)

Thursday, November 15, 2012

Court Upholds Discharge of A Nurse For Snooping

Cassidy v. Pocono Med. Ctr.,  M.D. Pa.,  No. 12-cv-1191,  10/19/12, is an interesting decision. 
Granting a motion to dismiss filed by a hospital that fired a nurse for allegedly snooping in a patient's chart, the U.S. District Court for the Middle District of Pennsylvania finds the nurse failed to state claims under the Age Discrimination in Employment Act or national origin discrimination violative of Title VII of the 1964 Civil Rights Act. Text at

Mitchell H. Rubinstein

November 15, 2012 in Employment Discrimination | Permalink | Comments (0)

Just Released

The Cardozo Journal of International and Comparative Law has released a symposium issue, "Amateur Athletics, Professional IP." 

The Columbia Journal of Transnational Law has released its symposium, "The Challenges We Face:  A Conference Honoring Professor Richard N. Gardner's Retirement from Teaching."  The conference included panels titled, "Challenges in International Law and the United Nations," "Challenges in International Trade and Finance," "Challenges it the Transatlantic Alliance," and "Environment, Energy, Human Rights and Corporate Responsibility," with keynote addresses by former U.S. Secretary of State Zbigniew Brzezinski, former President of the International Court of Justice Stephen M. Schwebel, former Chairman of the Federal Reserve Paul Volcker and Columbia law professor Richard N. Gardner, a former Ambassador to Spain and Italy.

The Connecticut Law Review has published a commentary edition titled "National Security."

The John Marshall Law Review has published its 10th Annual Employee Benefits Symposium: "The Past, Present and Future of Supreme Court Jurisprudence on ERISA."

Northwestern Law Review has published a symposium on Justice John Paul Stevens's legacy.

Pace Law Review has published a symposium titled, "Emerging Issues in Legal Procedure."

The Santa Clara Law Review has published its "Symposium on Leadership Education for Lawyers and Law Students."

The UCLA Law Review has published its symposium, "Overpoliced and Underprotected: Women, Race and Criminalization."

The UMKC Law Review has published its symposium, "FCIC and the Crisis:  Preventing the Next Financial Meltdown." 

The University of Memphis Law Review has published a symposium on capital punishment and cultural competency.

Craig Estlinbaum

November 15, 2012 in Law Review Articles | Permalink | Comments (0)

Wednesday, November 14, 2012

Perceived Sexual Orientation Not Protected Under State Bias Law, Washington Court Says

A heterosexual delivery driver did not present an actionable claim under state law based on a co-worker repeatedly calling him “Big Gay Al,” because perceived sexual orientation is not a protected status under Washington's Law Against Discrimination, a state appeals court held Oct. 23 (Davis v. Fred's Appliance Inc., Wash. Ct. App., No. 30269-5-III, 10/23/12).

November 14, 2012 in Employment Discrimination | Permalink | Comments (0)

Tuesday, November 13, 2012

Reimbursing a school board member's legal expenses incurred in litigation

Decisions of the Commissioner of Education, Decision No. 16,422
The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,”considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.
§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."
The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.
Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 
The Commissioner’s decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 13, 2012 in Education Law | Permalink | Comments (0)

Monday, November 12, 2012

Case That Sits In EEOC Cannot Be Dismissed On That Basis

A federal district court in Illinois denies a restaurant company's motion for dismissal of a Title VII lawsuit t brought by an employee who allegedly allowed an administrative charge of illegal bias to “languish” for six years without action by the Equal Employment Opportunity Commission (Stokes v. Pappas Rests. Inc., N.D. Ill., No. 11-cv-9206, 10/17/12).

Mitchell H. Rubinstein

November 12, 2012 in Employment Discrimination | Permalink | Comments (0)

Sunday, November 11, 2012

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism

D'Angelo v Scoppetta, 2012 NY Slip Op 06989, Court of Appeals
May a letter from the Assistant Commissioner of the Fire Department of the City of New York (Department) to a firefighter advising him that he violated the Department's Code of Conduct and Equal Employment Opportunity (EEO) Policy could adversely affect his eligibility for promotion in the future be made part of firefighter's permanent “EEO file” without first providing him an opportunity for a hearing pursuant to §15-113 of the Administrative Code of the City of New York?
Supreme Court had concluded that "the letter [was] a disciplinary reprimand and not a critical evaluation" and, therefore, the firefighter had the right to a formal hearing and other due process safeguards. * The Appellate Division agreed with the lower court’s ruling.
The Court of Appeal affirmed the lower courts’ rulings, holding that the firefighter was entitled to a due process hearing before the Department may place such a letter in his permanent file.
The Department conceded that the Administrative Code §15-113 required a hearing before its employees could be subject to punishment by reprimand but contended that a hearing was not necessary in this instance because the letter it placed in firefighter's permanent EEO file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. The Court of Appeals, as did the lower courts, disagreed.
Citing Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625, the Court of Appeals contrasted the Department’s action with school administrators placing letters in the permanent files of teachers critical of their performance without conducting §3020-a disciplinary hearings.
In one instance, the teacher was admonished for failing to maintain an orderly classroom after he had been directed to do so and for interrupting the class of another teacher. The letters characterized the teacher as incompetent and insubordinate. A second teacher had been sent a letter warning him that his regular absences from his assigned duties violated school policy. The court said it had concluded these letters did not trigger the due process protections of Education Law §3020-a because they were simply "critical evaluations" and not "formal reprimand[s]."
Although the letters sent to the teachers were "sharply critical," the Court of Appeals said that the fundamental purpose of the communications was not to punish but to identify "a relatively minor breach of school policy and to encourage compliance with that policy in the future."
The facts in the firefighter’s case, said the court, “are readily distinguishable from the facts in Holt.” 
While the teachers had received a letter from an immediate supervisor criticizing their performance, the firefighter was the subject of a formal investigation conducted by the Department's EEO office over a two-year period in response to the complaint alleging that he had used “racially offensive language” that had involved the interviewing of several “eyewitnesses” as well as the firefighter.
Significantly, the court noted that ultimately the EEO office determined that the evidence it had collected substantiated the complaint and it supplied a detailed report to the Assistant Commissioner. The Assistant Commissioner then reviewed the EEO office's findings and then “conferred with the Commissioner himself who ultimately approved the EEO office's determination.” This said the court “stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor.”
Further, said the court, the letter to the firefighter noted that the document "serve[d] as a formal Notice of Disposition of the filed Complaint" and “in no uncertain terms,” informed the firefighter that “a thorough investigation revealed that he ‘exercised unprofessional conduct’ and ‘made an offensive racial statement’ [and] as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training.”
The Court of Appeals said that it agreed with the firefighter that “the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy.”
In addition, the decision notes that the Department conceded at oral argument that the EEO's finding that [the firefighter] was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.
Concluding that the letter sent to the firefighter constituted a “formal reprimand under Administrative Code §15-11,” the court ruled that the Department had denied the firefighter his right to administrative due process by placing the letter in his file without first conducting a hearing. Affirming the Appellate Division’s ruling, Justice Smith dissenting, the majority of the court ruled that the letter to which the firefighter had objected was properly expunged from his permanent EEO file.
* Supreme Court noted that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting such a hearing had expired.

COMMENT: As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work constitutes a lawful means of instructing the employee. 

In Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373, the Commissioner of Education found that the alleged "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance. 

In Fusco’s case, the Commissioner said that “contents of the [counseling] memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was "intended to encourage positive change" in Fusco’s performance. The Commissioner noted that the memorandum "'contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
The D'Angelo decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

November 11, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, November 10, 2012

Court Allows USW to Proceed With Challenge To Recent Indiana Right-to-Work Legislation

An Indiana trial court ruled Oct. 16 that the United Steelworkers can pursue a legal challenge to the right-to-work legislation enacted in the state earlier this year, finding the court could not “categorically” rule “at this time” that the new statute does not violate the state constitution (United Steelworkers v. Daniels, Ind. Cir. Ct., No. 45C01-1207-PL-00071, 10/16/12). The statute is (H.B. 1001) which took effect March 14, 2012. 

Law review commentary on this important topic is encourgaged. Undoubtedly, there will be further appeals.

Mitchell H. Rubinstein

November 10, 2012 in Law Review Ideas, Unions | Permalink | Comments (0)

Thursday, November 8, 2012

Court Says Failure to Rebut ‘Honest Belief' In Firing Reasons Dooms Age Bias Claims

The 6th Circuit recently held that a 57-year-old plaintiff for a technical college in Ohio failed to establish triable age bias claims under the Age Discrimination in Employment Act and Ohio law because she did not adequately rebut the college's “honest belief” in its stated reasons for her discharge. Blizzard v. Marion Tech. Coll., (6th Cir., No. 11-3441, 10/19/12).

Mitchell H. Rubinstein

November 8, 2012 in Employment Discrimination | Permalink | Comments (0)