Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, October 13, 2012

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the “determination” becomes final and binding

McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department 
In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings “on the law."
Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*
Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.
In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."
N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 13, 2012 in Litigation, Public Sector Employment Law | Permalink | Comments (0)

Friday, October 12, 2012

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 12, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 11, 2012

Under NY Law, It is Ok To File and Serve Copies

I bring Rechler Equity v. AKR Corp., ____A.D.3d____(2d Dep't. Aug. 1, 2012), Download Rechler Equity AD3d (2d Dep't. 2012) Ok To Serve and File Copiesbecause it addresses a common issue. The court holds that under the CPLR, it is perfectly permissible for copies of pleadings to be served and filed. Thus, an original signature is not required.

Mitchell H. Rubinstein

October 11, 2012 in Litigation, New York Law | Permalink | Comments (0)

Wednesday, October 10, 2012

Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial

Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012), is an interesting case. An Oregon  U.S. Magistrate Judge has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.

Mitchell H. Rubinstein

October 10, 2012 in Education Law, First Amendment | Permalink | Comments (0)

Tuesday, October 9, 2012

Illinois Supreme Court rules that former district owes duty of care to provide hiring district with accurate employment information

Doe-3 v. McLean Cnty. Unit Dist. No. 5, Nos. 112479/112501 (Ill. Aug. 9, 2012), is a major decision from the Illinois Supreme Court. The majority held that the first district that formerly employed the teacher had engaged in conduct that gave rise to a duty when it falsely stated on the second district’s employment verification form that the teacher had worked for the entire 2004-05 school year. The majority pointed out that when the second district requested a completed form from the first district, that request gave rise to a duty for the first district to provide factually accurate information on the form. The majority concluded that the students had stated a colorable claim based on their allegation that the first district had breached its duty, creating a risk of harm to the students.

It appears that decisions like this will just encourage no-comment letters.

Mitchell H. Rubinstein

October 9, 2012 in Education Law, Employment Law | Permalink | Comments (1)

Monday, October 8, 2012

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”
The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”
In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 8, 2012 in Public Sector Employment Law, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Texas Wesleyan Law Review Call For Papers

Details here,  Download Call for Papers - 2012-2013


Mitchell H .Rubinstein

October 8, 2012 in Law Review Articles | Permalink | Comments (0)

Sunday, October 7, 2012

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405 
The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.* The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**
Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***
Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.
The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.
The Circuit Court remanded the case to the district court “for further proceedings.”
* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fide executives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fideexecutive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 
** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA
*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”
The decision is posted on the Internet at:$file/10-5405-1387823.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 7, 2012 in Employment Discrimination | Permalink | Comments (0)