Adjunct Law Prof Blog

Recent Case Demonstrates Stray Remark Doctrine In Context of Emails

A Blacke auto parts store manager who alleged he was fired because of his supervisor's racial animosity has triable race discrimination and retaliation claims because he showed sufficient evidence of possible pretext, but cannot maintain his charge of a hostile work environment with a single derogatory email, the U.S. District Court for the District of Colorado ruled Jan. 29 (Hallmon v. Advance Auto Parts, Inc., D. Colo., No. 12-cv-00124, 1/29/13).

Mitchell H. Rubinstein

 

2d Circuit Decision On Effects Bargaining

Everything you wanted to know about decision and effects bargaining as well as waiver. 

IBEW v. Rochester Gas & Electric, ____F.3d___(2d Cir. Jan. 17, 2013).

Even Harvard Students Cheat

Did you hear about this one?? Harvard University recently asked several students to leave after being found to have cheated on a take home exam in a government place. Details in the Feb. 1, 2013, NY Times, here. 

Mitchell H. RUbinstein

 

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.

Decisions of the Commissioner of Education, Decision No. 16,450

In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and theEducational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.

The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16450.html 

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

20 Day Suspension For Tieing A Noose Does Not Violate Public Policy

An arbitrator's decision to reinstate with a 20-day suspension a Port of Seattle employee who was fired for hanging a noose in the workplace did not violate Washington public policy against employment discrimination, a unanimous state supreme court holds. Int'l Union of Operating Eng'rs Local 286 v. Port of Seattle, (Wash., No. 86739-9, 2/21/13).

Chamber Urges Employers to Appeal Prior Adverse Board Rulings

The U.S. Chamber of Commerce published a reprint of a Wall Street Journal Article and is urging its members to appeal any adverse NLRB decision under the D.C. Circuit's recent decision in Noel Cannning holding that the NLRB was powerless to act because it did not have a quorum, here. 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

 

Airline Employee Fired After 40 Years Does Not Make Out An ADEA Case

An Air India employee who left the company at age 65 after almost 40 years lacks triable age bias and constructive discharge claim. Vazifdar v. Air India,  ___F.Supp.2d___, No. 4:11-cv-03117,(S.D. Tx. 1/29/13).

Mitchell H. Rubinstein

Court Holds Nurse Not Qualified Because She Applied For Disability

An RN suffering from fibromyalgia who was fired for poor performance failed to show she was a “qualified individual” under the Americans with Disabilities Act Amendments Act because she sought disability benefits and applied for only one job following her termination according to the court which so ruled on Jan. 28, 2013. (Bell v. Methodist Healthcare Memphis Hosps., W.D. Tenn., No. 2:11-cv-02756, 1/28/13).

MItchell H. Rubinstein