Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, February 9, 2013

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source: NSBA Legal Clips; Free subscriptions available atwww.nsba.org/legalclips. Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.
The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.
Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.
After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.
The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”
The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.
O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.
Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.
The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”
Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

February 9, 2013 in Education Law | Permalink | Comments (0)

Thursday, February 7, 2013

10% of Workers Have Defined Benefit Plans

The last private industry pension plans: a visual essay is an interesting December 2012 article from the Monthly Labor Review, here. The article concludes, among other things, 

In 2011, only 10 percent of all private sector establishments provided defined benefit plans, covering 18 percent of private industry employees. Decades ago, broad coverage of these plans allowed the Bureau of Labor Statistics (BLS) to analyze and tabulate considerable detail about how they worked. . .

Mitchell H. Rubinstein

February 7, 2013 in Employee Benefits Law, Law Review Articles | Permalink | Comments (0)

Effective Assistance in Plea Negotiations Symposium at Duquesne

Professor Doug Berman at Sentencing Law & Policy commented this morning on what promises to be a very timely and important symposium upcoming at Duquesne Law School. The syposium is called "Plea Bargaining After Lafler and Frye" and will be held February 28-March 1 at Duquesne in Pittsburgh in cooperation with the Criminal Justice Section, White Collar Crimes Committee, Mid-Atlantic Region.  The symposium schedule is here.

Craig Estlinbaum

February 7, 2013 in Conferences, CLE, Criminal Law, Ethics, Law Schools | Permalink | Comments (0)

Wednesday, February 6, 2013

Pen Store Manager's Claims Denied as Arthritis Left Her Unable to Do Job

9thcir

Those of you who know me, know that I am into pens. Well, we all have our vices! That is why this case caught my eye. The former manager of a high-end California pen store who was fired after requesting four months of medical leave because of psoriatic arthritis failed to show the decision was discriminatory because she was unable to perform the job's essential duties.( Lawler v. Montblanc N. Am. LLC, 9th Cir., No. 11-16206, 1/11/13).

Plaintiff  admitted that her duties as manager of Montblanc's Valley Fair Shopping Center store only could be performed on-site and that her arthritis-related symptoms prevented her from doing the job. As a result, Judge Duffy finds that her requested accommodations—a shorter workweek and four months of leave—would not allow her to perform the job's essential functions.

The decision can be found here.

Mitchell H. Rubinstein

February 6, 2013 in Employment Discrimination | Permalink | Comments (0)

Tuesday, February 5, 2013

Congressional Research Service Issues Important Report on Noel Canning Decision

The Congressional Research Service issued an important report documenting that if the NLRB Noel Canning decision is correct, then over three hundred recess appointments since 1981 would be declared invalid. A copy of the report is available here and it is worth a read for those interested. NY Times commentary on this important issue is available here.

Mitchell H. Rubinstein

February 5, 2013 in Constitutional Law, NLRB | Permalink | Comments (0)

Monday, February 4, 2013

Pregnant UPS Driver Denied Work Lacks Title VII, ADA Claims

Via the Daily Labor Report:

A UPS  driver prevented from working while pregnant because her doctor imposed a lifting restriction lacks a triable claim under the Americans with Disabilities Act or the pregnancy discrimination amendment to Title VII of the 1964 Civil Rights Act. Young v. UPS Inc., 4th Cir., No. 11-2078, 1/9/13.

The court held UPS's light-duty policy, which excludes pregnant employees the same as other workers temporarily unable to perform their jobs because of non-work related conditions, does not violate Title VII, as amended by the Pregnancy Discrimination Act. The court rejects a PDA interpretation that would require accommodations for pregnant employees like those the ADA requires for workers with disabilities. “We therefore adhere to the majority view that where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA,”

February 4, 2013 in Employment Discrimination | Permalink | Comments (1)

Sunday, February 3, 2013

Supremes Grant Cert. In Mixed Motive Case

Supreme Court
 The Supremes agreed to consider whether the prohibition on retaliatory employment actions in Title VII of the 1964 Civil Rights Act and similarly worded statutes requires a plaintiff to prove but-for causation for an adverse employment action, or whether the law only requires proof that an improper motive was one of several reasons for an employer's action (Univ. of Texas Sw. Med. Ctr. v. Nassar, U.S., No. 12-484, cert. granted 1/18/13).

This is an important case to watch as it involves a common issue. 

Mitchell H. Rubinstein

February 3, 2013 in Employment Discrimination | Permalink | Comments (1)