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Editor: Mitchell H. Rubinstein
New York Law School

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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 http://njlegallib.rutgers.edu:2127/hl.nsf/r?Open=mapi-8zdp2y

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:

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

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)