Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, January 19, 2013

Hispanic, Black Workers Called ‘Taco Bell,' Other Slurs Have Title VII Claims, Court Says

A Puerto Rican bus driver and a black fueler-washer for a public transportation provider in New York who alleged they were subjected to offensive slurs, physical threats, and bullying can proceed to trial on their respective national origin and racial harassment claims under federal and state law. The Second Circuit decided  this decision on Dec. 21 (Rivera v. Rochester Genesee Reg'l Transp. Auth., 2d Cir., No. 11-762, 12/21/12).

January 19, 2013 | Permalink | Comments (0)

Friday, January 18, 2013

Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill


Wisconsin Educational Council v. Walker, ____F.3d___(7th Cir. Jan. 18, 2013), is an important case that you are going to hear more about. In a 74 page decision, the 7th Circuit upholds the constitutionality of Wisconsin Act 10, the so-called Budget Repair Bill, Download WEAC v Walker -- 7th Circuit Decision 

The major challenge was on equal protection grounds. Specifically, the statute creates two classifications of public employees; public safety employees and general employees whom the restrictive labor relations provisions apply to. The prohibition of payroll deductions was also challenged on First Amendment grounds. The court rejected each of these arguments. 

The court applied the rational basis standard of review and concluded that the statute did not create view point discrimination. The court reasoned that differring treatment could be justified on the greater consequences of public safety worker strikes. 

The court did acknowledge the unions' agrument that it was only those same public safety unions who supported Governor Walker for election. So much for view point discrimination. 

Mitchell H. Rubinstein

January 18, 2013 in Politics, Public Sector Labor Law | Permalink | Comments (0)

Thursday, January 17, 2013

Seventh Circuit Ducks NLRB Quorum Issue, Finds Employee Challengers Lacked Standing

The Seventh Circuit Dec. 26 dismissed two petitions by employees who sought to challenge the constitutionality of President Obama's recess appointments of National Labor Relations Board members, finding the employees suffered no injuries from the NLRB rulings they appealed and lacked standing to obtain court review of the appointments ( Richards v. NLRB, 7th Cir., No. 12-1973, 12/26/12 )

January 17, 2013 in NLRB | Permalink | Comments (0)

Wednesday, January 16, 2013

Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statute

Samuelsen, as president of Local 100, Transport Workers Union of Greater New York v New York City Tr. Auth. et al, 2012 NY Slip Op 08780, Appellate Division, First Department
Local 100, Transport Workers Union of Greater New York [Union] is the exclusive collective bargaining representative of approximately 32,000 workers employed by various subordinate bodies and affiliates of the New York City Metropolitan Transportation Authority. One of its component units is the New York City Transit Authority (TA).
The Manhattan and Bronx Surface Transit Authority (MaBSTOA) was created by the Legislature in 1962 after the City of New York seized several privately owned and operated bus lines through its eminent domain power.*  
Public Authorities Law §1203-a, in pertinent part, provides: "[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of the New York City Employees' Retirement System" (NYCERS). Although this arrangement was originally intended to operate "for a temporary period" (Public Authorities Law 1203-a[2]), it has continued until the present. Although the two authorities have remained separate legal entities, they  nevertheless developed, as a practical matter, functional overlap such as sharing common office facilities and a personnel department.
Certain differences, however, were maintained with respect to personnel matters. For example, the terms of employment for both TA and MaBSTOA employees were governed by a collective bargaining agreement [CBA], with certain exceptions such as the CBA providing that any layoffs of MaBSTOA employees would occur in reverse order of seniority, based upon date of hire. However there was no similar provision in that agreement concerning TA workers as the layoff of TA workers was controlled by the §§80 and 81 of the Civil Service Law. Another difference: set out in the CBA addressed “job selection.” MaBSTOA employees could pick only jobs associated with the bus lines operated by MaBSTOA while TA employees could pick only jobs associated with bus lines and subways operated by TA.
In December 2002, the TA and MaBSTOA executed a "Memorandum of Understanding" with the Union (MOU) that modified the CBA to provide for the consolidation of MaBSTOA and TA surface transit operations whereby "The Authority and the Union agree to the elimination of the artificial distinction between MaBSTOA and the Transit Authority….” To effectuate the MOU, the parties established a joint job pick procedure that allowed MaBSTOA and TA employees, subject to certain limitations, to "pick into" TA jobs and TA employees to "pick into" MaBSTOA jobs in accordance with a single, integrated seniority list, known as the "Consolidated Seniority List."
Asserting that this directly violates the prohibition in Public Authorities Law §1203-a(3)(b) against MaBSTOA employees becoming, "for any purpose, employees of the city or of the [TA],  the Union alleged that "as a result of" the MOU and the consolidation agreement, "employees of MaBSTOA are, for almost all purposes, employees of [the TA]. The Union further alleged that “MaBSTOA employees regularly work in [TA] facilities” and other than not having civil service status or participating in a different pension system, “MaBSTOA employees working for [TA] are for all purposes indistinguishable from [TA] employees."
The Union sought a judgment declaring that:
1. “No MaBSTOA employee may be treated as an employee of the TA for any purpose, and that the MOU and consolidation agreement are void and unenforceable to the extent that they have effectively made employees of MaBSTOA into employees of the TA.” and
2. Prohibiting the MaBSTOA from taking any action in accordance with the 2002 MOU and 2003 consolidation agreement that is prohibited under the Public Authorities Law, or that adversely affects the employment of any employee of MaBSTOA.
Supreme Court dismissed the Union’s complaint “for failure to state a cause of action.” The Appellate Division reversed the lower court’s ruling “on the law.”
As to Supreme Court’s finding that the Union’s compliant “failed to state a cause of action because nothing in the MOU or consolidation agreement indicated that MaBSTOA employees would gain civil service status or become members of NYCERS,” the Appellate Division explained that “[i]n interpreting any statute, we are required, first and foremost, to pay heed to the intent of the Legislature, as reflected by the plain language of the text,” citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.
In addition, said the court, "[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning."
Noting that a plaintiff’s pleading is to be afforded a liberal construction, the Appellate Division held that “the facts alleged in the complaint are to be accepted as true, and plaintiff is to be accorded the benefit of every possible favorable inference,” citing Leon v Martinez, 84 NY2d 83.
In the words of the court “… the language we are required to interpret is as follows: ‘[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of [NYCERS]’ (Public Authorities Law 1203-a[3][b]). In our view, this plainly means that three separate prohibitions apply to MaBSTOA employees: (1) that they ‘shall not become, for any purpose,’ employees of the TA; and (2) that they shall not acquire civil service status; and (3) that they shall not become members of the NYCERS. Accordingly, we agree with the Union that, to the extent that the MOU and consolidation agreement, by merging many of the policies of the two authorities, such as probationary employment rules, disciplinary rules, and sick-leave rules, transform MaBSTOA employees into employees of the TA, the agreements violate the first prohibition.”
The Appellate Division rejected the City Transit Authority’s argument that "[t]he plain and obvious meaning of the 'for any purpose' language is to ensure that a MaBSTOA employee cannot, simply by virtue of employment by MaBSTOA, even in a contractually agreed upon commingled work force, acquire civil service status or membership in NYCERS."
The most glaring problem with this interpretation, said the court, is that “it is decidedly not what the statute says.” Rather, said the Appellate Division, “[t]he way the provision is written, the ‘and’ creates a separation between the ‘for any purpose’ clause and the rest of the sentence. It does not signal a modification to the ‘for any purpose’ clause or in any way refer back to it. Furthermore, defendants' interpretation renders the first prohibition superfluous, a result which ‘is to be avoided,’ [citing] Matter of Branford House v Michetti, 81 NY2d 681.”
In other words, said the court, “defendants argue that if a MaBSTOA employee cannot, under any circumstances, be subject to the Civil Service Law or participate in NYCERS, they simply cannot be considered TA ‘employees,’ rendering the first clause meaningless if not considered in the manner they urge. This approach is too narrow, for it pays no heed to the notion that different people working under the same employer can be classified differently.”
"In other words, not every employee in an organization is similarly situated. Here, the statute recognizes that MaBSTOA workers could become so integrated into the TA organization that they could be seen as TA employees, albeit without the protections of the Civil Service Law and the benefit of NYCERS participation. We simply discern nothing in the statutory language which confirms, as the dissent insists, that Civil Service Law protection is the distinguishing' or hallmark' quality of TA employment."
The majority, in response to a comment in the dissent, also observed that its approach was not in conflict with other provisions in the Public Authorities Law that might be interpreted as encouraging some standardization of the two agencies' operations.
Agreeing with the Union’s interpretation of Public Authorities Law §1203-a(3)(b), the Appellate Division held that complaint sufficiently alleged facts establishing that the MOU and consolidation agreement had the effect of conferring on MaBSTOA workers qualities of "employment" by the TA, it ruled that Supreme Court “erred in dismissing the complaint as not having stated a cause of action.”
* MaBSTOA became a subsidiary corporation of the TA.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 16, 2013 in Arbitration Law | Permalink | Comments (0)

Tort Law: Pets and Sentimental Value

The Supreme Court of Texas heard oral arguments on January 10 to answer whether or not a pet owner can recover for the sentimental value of a dog lost due to another's negligence. 

The case is Carla Strickland v. Kathryn and Jeremy Medlen (Case No. 12-0047).  The case came to the Texas high court following an intermediate appeallate court's opinion reversing a trial court's order dismissing the claim against Strickland with prejudice.  According to a David Yates report in the Southeast Texas Record, the allegations in the case are that an animal shelter took possession of the Medlen's dog after it escaped the Medlen's yard.  Jeremy Medlen went to pick up the animal, but did not have enough money to cover the fees.  Medlen alleges he was told he could come back with the money and a "hold for owner" tag would be put on the dog.  Strickland, it is alleged, neglegently put the dog on the list of animals to be euthanized, and it was, and when Medlen returned for the dog, he learned what had happened.

More after the jump:

Continue reading

January 16, 2013 in Interesting Cases, Remedies, State Law, Texas Law | Permalink | Comments (0)

Tuesday, January 15, 2013

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

Szczepaniak v City of Rochester2012 NY Slip Op 08896, Appellate Division, Fourth Department
The City of Rochester determined that one of its employees was guilty of the disciplinary charges filed against him and terminating him from his employment. Supreme court dismissed the individual's Article 78 petition challenging his dismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “the determination is not supported by substantial evidence because the evidence presented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment, ruled that the evidence was relevant and probative on the charges that the individual had worked at that outside employment while he was on sick leave, or other leave from his employment with the City, and receiving certain benefits.
The court explained that hearsay is admissible in administrative proceedings "and if sufficiently relevant and probative may constitute substantial evidence." Accordingly, said the Appellate Division, there is no merit to the individual's contention that the determination is not supported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that it found that the appointing authorities determination as to the employees guilt was “supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that it concluded that “the penalty of termination from petitioner's employment is not ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ and thus does not constitute an abuse of discretion as a matter of law,” citing Kelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifies about what he or she has heard from others rather than testifies about that which he or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 15, 2013 in Public Sector Employment Law | Permalink | Comments (1)

New Law School Proposed for South Texas

At least two Texas legislators, Rep. Eddie Lucio, III of Harlingen and Rep. Armando Martinez of Weslaco, have filed bills to establish a public law school in the Rio Grande Valley.  The two bills are similar to one another - the primary difference is that Lucio's bill would place the law school in the University of Texas System, while Martinez's bill would authorize the school to be created and operated by any willing and existing university system.

A law school in the fast-growing Rio Grande Valley has long been a goal for South Texas's legislative delegation.  While the need for a new law school in this national market is doubtful, the Rio Grande Valley is greatly underserved.  The nearest public law school to the Valley is the University of Texas at Austin some 300 miles away.  The Rio Grande Valley appears by far to be the largest region in the nation, measured by population, located so far from a public law school.  The two MSA's that make up the Valley have almost 1.2 million in population according to the last Census.

Texas created a public law school in the Dallas during the 2009 session - the University of North Texas Dallas (UNT-Dallas) College of Law is scheduled to open in the Fall of 2014.  With law schools facing declining enrollment in this tough job market, getting yet another law school opened in Texas looks to be an uphill battle this session.

The Texas Legislature meets for 140 days during odd-numbered years, called special sessions excluded.

Craig Estlinbaum

January 15, 2013 in Colleges, Law Schools, Legislation, Politics | Permalink | Comments (0)

Sunday, January 13, 2013

Michigan student arrested for making online threats to teache

The Associated Press (AP) reports in the Huffington Post that a 16-year-old student in Southern Michigan has been arrested after authorities said he threatened a teacher in an online posting, the latest clampdown on unruly students in the wake of the recent Connecticut school massacre.

Huffington Post, 12/21/12, By The AP

January 13, 2013 in Education Law | Permalink | Comments (0)