Adjunct Law Prof Blog

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity** was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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New York Style Manual (2012)

The New York Style Manual (2012) was recently published. It is bluebook form for New York courts and can be downloaded here.

Mitchell H. Rubinstein

Call For Papers-Journal of Race, Gender, and Poverty

This years topic centers on affirmative action. Additional details can be found by downloading  Download Call for Papers-Symposium (2013) (1)

Mitchell H. Rubinstein

NLRB Issues First Facebook Decision

Karl Knauz Motors, 358 NLRB No. 164 (Sept. 28, 2012), is going to be a lead case in the area of social media simply because it is the first actual decision from the Board. Click here to download  Knauz BMW The Board issued a press release describing the decision here. The decision was divided along party lines. 

Basically, the Board held that a Facebook posting that caused an employee's discharge was not unlawful under the NLRA. Another interesting aspect of the case is that it found that a courtsey rule was unlawful as overbroad because it might chill Section 7 activity. With respect to that issue the Board stated:

We find the “Courtesy” rule unlawful because employeeswould reasonably construe its broad prohibitionagainst “disrespectful” conduct and “language whichinjures the image or reputation of the Dealership” as encompassingSection 7 activity, such as employees’ protectedstatements—whether to coworkers, supervisors,managers, or third parties who deal with the Respondent—that object to their working conditions and seekthe support of others in improving them. First, there isnothing in the rule, or anywhere else in the employeehandbook, that would reasonably suggest to employeesthat employee communications protected by Section 7 ofthe Act are excluded from the rule’s broad reach. Seegenerally Costco Wholesale Corp., 358 NLRB No. 106(2012) (finding unlawful the maintenance of a rule prohibitingstatements posted electronically that “damagethe Company . . . or damage any person’s reputation”).Second, an employee reading this rule would reasonablyassume that the Respondent would regard statements ofprotest or criticism as “disrespectful” or “injur[ious] [to]the image or reputation of the Dealership.”

With respect to the discharge, the Board found that the employee was not engaged in protected activity, the Board summarily affirmed 

the ALJ who found that the employee was not discharged for protected activity. As the ALJ explained:

Hat Tip Work Place Prof Blog

Mitchell H. Rubinstein

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

 

Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed 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, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Labor Arbitration Agreement Given Collateral Estoppel In Unemployment Case

Matter of Redd v. Commissioner of Labor, ___A.D.3d___(3d Dept. Aug. 2, 2012), is an interesting case. An employee's discharge was upheld by an arbitrator. Those findings were held to be collateral estoppel and disqualifying misconduct. 

Mitchell H. Rubinstein

Discharge For Volunteering To Be A Kidney Donor Violates Public Policy

This is one of the most shocking employment law cases I have ever seen.  Delaney v. Signature Health Care Foundation, 2012 Mo. App. LEXIS 694 (Mo. Ct. App. May 22, 2012).

Missouri finds that such conduct violates public policy and is an exception to the employment at will doctrine. From a legal perspective, the case is also siginificant because it attempts to define the countours of the public policy exception.

Another recent case dealing with the public policy exception is Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), where an employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog