Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, October 6, 2012

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, 2nd 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:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 6, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Friday, October 5, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Public Finance Lawyer Drummond Woodsum Portland, Maine
School and Special Education Lawyer Drummond Woodsum Portland, Maine
Employment Lawyer Drummond Woodsum Portland, Maine
School Board Attorney Portsmouth Public Schools Portsmouth, Virginia

October 5, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 4, 2012

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

October 4, 2012 in Legal Research | Permalink | Comments (0)

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

October 4, 2012 | Permalink | Comments (0)

Wednesday, October 3, 2012

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 employees
would reasonably construe its broad prohibition
against “disrespectful” conduct and “language which
injures the image or reputation of the Dealership” as encompassing
Section 7 activity, such as employees’ protected
statements—whether to coworkers, supervisors,
managers, or third parties who deal with the Respondent—
that object to their working conditions and seek
the support of others in improving them. First, there is
nothing in the rule, or anywhere else in the employee
handbook, that would reasonably suggest to employees
that employee communications protected by Section 7 of
the Act are excluded from the rule’s broad reach. See
generally Costco Wholesale Corp., 358 NLRB No. 106
(2012) (finding unlawful the maintenance of a rule prohibiting
statements posted electronically that “damage
the Company . . . or damage any person’s reputation”).
Second, an employee reading this rule would reasonably
assume that the Respondent would regard statements of
protest 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:

Rover accident on his Facebook account was neither protected
nor concerted activities, and Counsel for the General Counsel
does not appear to argue otherwise. It was posted solely by
Becker, apparently as a lark, without any discussion with any
other employee of the Respondent, and had no connection to
any of the employees’ terms and conditions of employment. It
is so obviously unprotected that it is unnecessary to discuss
whether the mocking tone of the posting further affects the
nature of the posting. It is therefore necessary to determine
whether Becker was terminated because of the Event posting,
the Land Rover posting, or for both.

Hat Tip Work Place Prof Blog

Mitchell H. Rubinstein

October 3, 2012 in NLRB | Permalink | Comments (1)

Tuesday, October 2, 2012

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


Snead v Village of Spring Valley2012 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:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 2, 2012 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Monday, October 1, 2012

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

October 1, 2012 in Arbitration Law, Employment Law | Permalink | Comments (0)

Sunday, September 30, 2012

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 Foundation2012 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

September 30, 2012 in Employment Law | Permalink | Comments (0)