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Personnel Law Update: Recent Cases

David R. Hostetler Lex -IS Services [email protected] 815-301-3931

Employment Status and Contracts Job Status ­ At-will Public Employment: U.S. Supreme Court upholds employment at will in the government sector by rejecting "class of one" Equal Protection claim. Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146 (June 9, 2008). The doctrine of employment at will gives employers and employees expansive discretion to terminate their employment relationships at any time, for any reason, with or without notice, unless some exception to the rule applies. The present case tested whether government employers have the same broad-ranging discretion as their private counterparts. The answer of the United States Supreme Court is a definitive "Yes." The "class of one" theory under the Equal Protection clause protects individuals who are victims of arbitrary, vindictive, and/or malicious government regulation. The U.S. Supreme Court ruled 6-3 that the class of one theory was "simply a poor fit in the public employment context." The Court based its decision on the "crucial difference between the government exercising the power to regulate or license, as lawmaker, and the government acting as a proprietor, to manage [its] internal operations," the primary difference being that as proprietor, it has much greater discretion than it does when it acts as lawmaker and affects the public at large. The case involved an Oregon Department of Agriculture employee who was passed over for a promotion. In addition to her "class of one" Equal Protection claim, she also asserted discriminated claims based on her age, sex, and national origin. The issue presented to the U.S. Supreme Court was whether the Equal Protection class of one claim applied to government employment decisions, not just to government regulatory actions as previously recognized by the Court. Resting its decision primarily on the fact that the government must exercise far more discretion when managing its internal affairs as employer in contrast to regulating the public through its regulatory power, the Court refused to impinge on the government's discretionary prerogatives. Particularly significant is that the Court essentially affirmed a government employer's right to employ its personnel "at will" if it so chooses and the decision is based on subjective, non-discriminatory, determinations. That means, as it does in the private sector, that an at-will government employee may be terminated for "good reason, bad reason, or no reason at all." The Court noted that it "never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information" and that the "Constitution does not require repudiating that familiar doctrine." The court noted that it was guided by the "common-sense realization that government offices could not function if every employment decision became a constitutional matter" subject to a court's review.

Margin Notes

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Lex-IS Notes: · This case preserves the status quo in schools; as "arbitrary" as employment at-will can seem, it is still law. · On one hand, school officials are reminded that any employment discharge should, based on ethical and effective leadership grounds, be for legitimate performancerelated reasons, even if the law does not necessarily require it. · On the other hand, because of the broad discretion afforded employers, school officials should avoid excessive caution or delay in dismissing poor performing atwill employees. Efforts by building administrators to raise the standards in their schools can sometimes be thwarted by such excessive caution. Central office and building administrators should both seek to understand the law, its implications for swift supervisory action when needed, and coordinate with one another for a synchronized approach to hiring, and supervising at-will employees. Conduct, Dismissal and Ethics Web Use: Teacher legally transferred for posting derogatory statements about peers. Richerson v. Beckon, 2009 U.S. App. LEXIS 12870 (9th Cir. June 4, 2009; unpublished). Tara Richerson was promoted from teacher to curriculum specialist and instructional coach. She posted a personal blog site open to the public. On it she made disparaging statements about her colleagues. Regarding an interview for her teaching replacement she posted the following: "Save us White Boy! I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice, and a reluctant one at that. I truly hope that I have to eat my words about this guy. . . . But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him . . . He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him. ... He has a reputation of crapping on secretaries and not being able to finish tasks on his own. ... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community. ... Mighty White Boy looks like he's going to crash and burn. The human resource director, when she learned of the post, verbally reprimanded Richerson for breach of confidentiality and professional standards, but did not order Richersen to stop blogging. Subsequently, Richersen blogged about a colleague who was the local teacher union's lead negotiator,

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"What I wouldn't give to draw a little Hitler mustache on the chief negotiator." When teachers being coached by Richersen learned of these comments, several refused to work with her. Consequently, Richersen's supervisory duties were stripped and she was transferred back to a regular teaching position. Richersen sued the human resource director in her personal and official capacity, claiming the transfer violated her free speech rights. The trial court granted summary judgment for the director. Richerson appealed to the Ninth Circuit. Procedurally, that Court was required to assume the facts were as alleged by Richerson. Nevertheless, the court upheld the decision. Assuming that Richerson's speech was a "matter of public concern" and that the transfer was an "adverse action", the court ruled that in balancing the interests of the parties, the district was justified in making the transfer due to the disruptive effect of the negative web postings. Practice Points · Employee free speech "boundaries," as indicated by this case, essentially involve two key questions: (1) Is the speech a matter of "public concern"? (2) In the balance of interests, does the public's and employee's interests outweigh the employer's interest in effective operations? The court must answer "Yes" to both questions to uphold the employee's claim. The nature and degree of discipline may be relevant in the court's "balancing of interests"; if discipline is appropriate, it should be proportional. Generally a significant disruption to school operations may be (but is not always) sufficient in the "balancing" test. Engage legal counsel in deliberations about how to handle such matters and address their unique circumstances and nuances. School policies should include a provision for students and employees notifying them of the possibility and standards for discipline for off-campus and personal conduct.

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[Note: Petition for rehearing en banc pending as of November 27, 2009.] Web Use: Teacher legally nonrenewed for MySpace page with students. Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. Sept. 16, 2008). Jeffrey Spanierman, was a high school English teacher who used his MySpace page to communicate with students about school- and non-school issues. He contended that it began when students asked him to look at their own MySpace pages; he eventually created his own, initially referring to himself as "Mr. Spiderman." He explained that it was a way to better relate to his students. One of the guidance counselors discovered that Spenierman's page included "peer-like" discussions with students about their party habits, personal problems, etc. It also included pictures of students with whom he corresponded and, elsewhere, photos of non-student naked males captioned with

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"inappropriate comments." When confronted, Spanierman took the site down but created another similar one, which was also discovered shortly thereafter. The principal suspended Spanierman with pay pending an investigation, which led to a finding that he had exercised poor judgment. He was, consequently, not renewed. Spanierman sued the superintendent, assistant superintendent, and principal, for violations of his due process, equal protection, and free speech rights. The court rejected all of the claims. Spanierman's due process claim failed because he did not have a property interest in his job at the end of the year. His "class of one" equal protection claim (i.e., that he was treated arbitrarily in comparison to similarly situated persons) failed, based on the U.S. Supreme Court's decision in Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008), that such a claim does not apply to public employment. Regarding his Free Speech claim, the court ruled that the MySpace page was not an extension of his job duties and not subject to the Supreme Court's Garcetti v. Ceballos standard that speech which is part of an employee's job duties is not a public concern. Under regular employee free speech analysis, the court determined that most of the MySpace content did not involve a matter of protected public concern, except a poem about the Iraq war. The court ruled that the school did not retaliate against Spanierman because of his political views. In addition, Spanierman's speech was likely to be disruptive, justifying the school's nonrenewal decision. Web Use: Charlotte teachers investigated and disciplined for derogatory web postings. A teacher in Charlotte-Mecklenburg Schools (CMS) was dismissed in 2008 for posting derogatory statements about students on her publicly accessible Facebook page. Other teachers were disciplined for postings that involved ""poor judgment and bad taste." The fired teacher commented that she was "teaching chitlins in the ghetto of Charlotte" as a personal "activity" and listed drinking as a hobby. One high-school special education teacher stated in her "mood box" that she was "p---ed because I hate my students!" CMS officials have noted that the system must discipline "several" employees a year for improper web postings Ethics - Immorality: State Board may refuse to reinstate license for immorality." Richardson v. N.C. Dept. of Public Instruction, 681 S.E.2d 479 (NCA, Sept. 2, 2009). Richardson, a former teacher, had his license suspended by the State Board of Education (SBE) for "unethical" conduct related to his sending threatening letters to his supervisor who had testified against him in a prior employment discrimination trial. The SBE subsequently denied his petition for reinstatement on the grounds that his original conduct constituted "immorality," which had a reasonable and adverse relationship to his ability to perform any of his professional duties. Richardson argued that "unethical" conduct, the basis for his initial license suspension, was not the same as "immorality," (the basis for the subsequent decision) and, therefore, his license should have been reinstated. The state court of appeals upheld the trial court's determination that the original determination to suspend his license was based on conduct reasonably considered "immorality."

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We do ...agree...that the original revocation based on "unethical" conduct can be fairly characterized as constituting "immorality," which has been defined as "such conduct that by common judgment reflects upon a teacher's fitness to teach[.]" Barringer v. Caldwell County Bd. of Educ., 123 N.C. App. 373, 381, 473 S.E.2d 435, 440 (1996). .... [A] reasonable public school teacher of 'ordinary intelligence,' and utilizing 'common understanding,' would know that [sending threatening and obscene letters to his supervisor would] . . . consequently plac[e] the teacher's professional position in jeopardy." Supervision, Evaluation and Reporting N.C. Court of Appeals rejects board's random employee drug testing policy. Jones v. Graham Co. BoE. 677 S.E.2d 17 (NCA, June 2, 2009). "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." So begins the opinion of the North Carolina Court of Appeals in this case. The Graham County school board approved a revision to its drug testing policy to allow random drug testing of employees. A teacher and the North Carolina Association of Educators sued, claiming the revised policy violated the state Constitutional protection against unreasonable searches. The trial court ruled for the school system. The court considered federal Fourth Amendment analysis in determining the state claim by balancing the employees' interests against the boards. Normally, searches require some time of individualized suspicion. Random, suspicionless searches, in contrast, are upheld only in cases of "special need" (e.g., random drug testing of students participating in extracurricular activities.) In this instance, the court relied on the fact that the school board adopted the policy based on no evidence of a specific drug problem or threat of employee drug use, but only on a generalized concern to take preventative action. The board, for instance, presented no evidence that it's prior policy had been ineffective. The court cited, e.g., board member testimony failing to identify that there was a specific problem. The court concluded with this statement: Lest the American people, and the people of North Carolina in particular, forget the foundational importance of the Fourth Amendment right to be secure against unreasonable searches and seizures, we should recall that the cherished liberties enjoyed in our brief historical moment have been inherited by this generation only because they have been nurtured and protected by earlier generations of Americans so driven in their pursuit of liberty that life itself was not too great a cost to purchase liberty for themselves and their posterity.

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Free Speech Court applies recent Supreme Court's Garcetti principle to deny free speech protection to some employee complaints while allowing others to be addressed. Davis v. McKinney (5th Cir. Feb. 21, 2008). In the case of Garcetti v. Ceballos, the U.S. Supreme Court modified employee free speech analysis by holding that complaints by a government employee about office decisions and procedures were not a matter of "public concern" and, therefore, not protected speech because such communications were made as part of the employee's regular duties. The present case involved a more complex situation where a University of Texas employee raised concerns about an internal audit she supervised involving findings of improper employee uses of computers to access pornography. The plaintiff raised concerns within her supervisory chain of command and beyond by contacting university executives as well as external law enforcement officials including the FBI. Believing her supervisors ignored her concerns and even retaliated against her, she filed suit. Based on the Garcetti case, the University sought to dismiss the case claiming all of the communications were not protected speech because they related to performance of the plaintiff's job duties. On appeal the Fifth Circuit made distinctions in the type of communications, and therefore upheld dismissing Free Speech claims related to those made within the chain of command, but requiring further findings by the lower court as to whether the other communications made outside the chain of command were outside the employee's job duties and, if so, whether they constituted matters of "public concern." Lex-IS Notes: · It will take some time for courts to clarify the boundaries of the Garcetti case. The present case illustrates the nuances that can arise. Practitioners should be careful to avoid simplistic analyses involving premature conclusions that employee complaints directly or indirectly related to job duties unequivocally qualify as unprotected speech. Free Speech: School Mailbox Policy does not violate teacher's First Amendment rights. Policastro v. Kontogiannis, 262 Fed. Appx. 429 (3d Cir.; unpublished) cert. denied, 129 S. Ct. 46 (2008). The Court of Appeals for the Third Circuit, in an unpublished opinion, upheld a school district's mailbox policy in the face of a First Amendment challenge. At issue in the case was a school policy that restricted the use of the school mailboxes to schoolrelated business. The principal at the school used the policy to justify the removal of a memorandum that had been placed in the mailboxes of all of the teachers in the school, and which expressed one employee's concerns about a labor dispute. The teacher who had distributed the memoranda sued the school board and the principal, claiming that the school's mailbox policy had a potential chilling effect on speech and was thus overbroad. The court rejected this charge. Even after the incident, teachers

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at the school continued to use the mailboxes to communicate personal messages, thus proving to the court that there was no actual chilling effect. First Amendment does not protect employee's speech when primary purpose of speech is to keep one's job. McCullough v. Univ. of Ark. for Med. Sci., No. 08-1353 (8th Cir. March 23, 2009). The Eighth Circuit Court of Appeals held that a University of Arkansas employee's speech about alleged sexual harassment was not protectable First Amendment speech. The Court reasoned that the employee's speech was primarily motivated by his interest in keeping his job and therefore was not public speech by a citizen on public matters which would have been protected by the First Amendment. Sixth Circuit upholds school district's order requiring teacher to cease communicating with colleague. Baar v. Jefferson County Bd. of Educ., No. 08-5302 (6th Cir. Feb. 18, 2009). A Kentucky teacher filed suit claiming his First Amendment rights had been violated after he was prohibited from communicating with a certain colleague in the future after sending several "inappropriate letters" containing threats to the colleague and her family. The Sixth Circuit Court of Appeals upheld the communication prohibition imposed by the school district because it was narrowly tailored; that is, it applied only to communications between the teacher and the one colleague who had previously been upset and disturbed by the teacher's previous actions. Thus, the teacher was still free to communicate with other teachers, in any forum, on matters of public interest. Teacher's speech regarding alleged abuse of her child was personal speech and not entitled to First Amendment retaliation protection. Wilbourne v. Forsyth County Sch. Dist., No. 08-12094 (11th Cir. Jan. 5, 2009; unpublished). A Georgia teacher, believing that her disabled son was abused by another teacher, filed a complaint with the state standards commission. In another incident, she confronted an administrator regarding projected school discipline of her son. The teacher, in her lawsuit, contended in part that officials retaliated against her in violation of her First Amendment free speech rights by filing a disciplinary letter in her personnel file and also filing a complaint against her for "unprofessional conduct" with the state commission. The Eleventh Circuit Court of Appeals, in an unpublished opinion, upheld summary judgment for the defendants because the teacher's speech was strictly private; the context and motivation of that speech had little to do with a public concern and involved, instead, the teacher's own personal concerns. Retaliation: Employee fails to show his nonrenewal was motivated by retaliation for exercising free speech rights. Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046 (7th Cir. May 22, 2008). The Seventh Circuit Court of Appeals upheld a ruling rejecting a teacher's retaliation claim following the nonrenewal of his girls basketball coaching contract. The court

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also ruled also that the district's "chain of command" policy was not a prior speech restraint. The contract was not renewed due to complaints by players, parents and coaches; poor and improper fundraising and financial practices; and inadequate coaching skills. The teacher claimed the action was in retaliation for raising concerns about disparities in treatment of the girls' sports programs, and other hiring, computer and redistricting issues. The court determined that the plaintiff, to the extent his concerns involved protected First Amendment speech about matters of public concern, failed to prove that the system's reasons were "pretextual" to mask retaliatory motives. Teacher does not have free speech right associated with filing a union grievance regarding classroom discipline. Weintraub v. New York City BoE, 2010 U.S. App. LEXIS 1782 (2nd Cir. Jan. 27, 2010). An elementary teacher filed a union grievance, complaining that the administration failed to discipline a student who threw a book at him in the classroom. After filing the grievance, the teacher alleged that he was retaliated against in violation of his free speech rights. He contended that after filing the complaint, he received undue negative evaluations and disciplinary reports, was cited for abandoning his class, was falsely accused of sexual misconduct toward a student, and was arrested for assault on another teacher based on false allegations, leading to his termination. After he was exonerated of criminal charges, he sought but was denied reinstatement. The Court of Appeals ruled for the school system on the speech claim. Under the Supreme Court's prior decision in Garcetti v. Ceballos, the court determined that the grievance was not protected speech because it was filed as part of the teacher's core duties: maintaining classroom discipline. It was simply an internal communication pursuant to a district dispute resolution policy. Employment Discrimination U.S. Supreme Court rules that city violated Title VII by disregarding racially disproportionate firefighter promotion exams Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009). The city of New Haven Connecticut used examinations as a basis for making decisions about firefighter promotions. Results indicated, statistically, that the exams led to disparate results between white and minority candidates, so the City rejected them. White and Hispanic firefighters who passed the exams but were denied promotions because of the City's decision sued, alleging that the City discriminated against them based on their race in violation Title VII of the Civil Rights Act of 1964. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed. The U.S. Supreme Court, in a 5-4 decision, rule that the City violated Title VII. An employer can engage in intentional discrimination to avoid or remedy an unintentional, disparate impact, only if there is a "strong basis in evidence" that the remedial actions are necessary. Based on the record the parties developed through discovery, there was no substantial basis in evidence that the test was deficient. Fear

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of litigation alone, said the court, cannot justify the City's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Anti-retaliation provision of Title VII expanded by Supreme Court to cover more employees. Crawford v. Metro. Gov't of Nashville & Davidson County, TN, 129 S. Ct. 846 (Jan. 26, 2009). The United States Supreme Court unanimously overturned the Sixth Circuit Court of Appeals and ruled that employees who participate in an employer's internal investigation into discrimination claims against another party and allege they were harassed as well, are entitled to the protections of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The Court refused to uphold what it called "a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question." The Court feared employees would be caught in a "Catch-22" where an employee who responded to an employer's internal investigation would be banned from bringing a Title VII claim, and if she refused to participate and later brought a Title VII claim, the employer could argue it had taken reasonable care to prevent discrimination, but the employee did not take advantage of the opportunity presented. ADA: School system legally may refuse to create new position as accommodation. Johnson v. Cleveland City School Dist., 2009 U.S. App. LEXIS 19136 (6th Cir. Aug. 25, 2009). A teacher in an automobile accident suffered a spinal injury that developed into cervical myelopathy, a degenerative condition causing her to lose her energy easily. A position was created for her as an "academic interventionist" in which she worked with small groups of students. When the employee transferred to a different school with her supervisor, she served in a similar position. Under a new district administration, officials learned that she was not in a teaching position and ordered her back into the classroom. The employee filed discrimination charges under the American with Disabilities Act (ADA). The court rejected the plaintiff's claim that she had been denied a reasonable accommodation under the ADA because no position as "academic interventionist" then existed and because she failed to show that the teaching position assigned on the second floor classroom was not a reasonable accommodation. She also failed to prove a retaliatory causal connection between her disability and her termination. Civil Rights: School board not liable for firing of former employee. Coleman v. Loudon BoE., 294 Fed. Appx. 778; 2008 U.S. App. LEXIS 20647 (4th Cir. Sept. 29, 2008). The Fourth Circuit Court of Appeals upheld a lower court's summary judgment verdict in favor of a Virginia school board on charges that it wrongfully terminated an employee. The employee claimed, under Title VII of the Civil Rights Act, that the

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school board discriminated and retaliated against her based on her race. Plaintiff claimed that her comments during an interview panel meeting that two AfricanAmerican candidates were being treated unfairly compared to two white candidates resulted in her retaliatory firing. In finding for the school board, the court determined that the employee failed to prove the required elements of a retaliation claim under Title VII: (1) that she engaged in protected activity under the Act; (2) the employer took adverse employment action against her (this was not in question), and (3) there was a causal connection between the protected activity and the subsequent action taken by the school board. The court went on to state that even if plaintiff had alleged a valid civil rights claim, the school board would have been justified in terminating her employment because of documented legitimate and non-discriminatory reasons including concerns about her "leadership ability and her promptness in responding to requests from superiors [and an inability] to provide [her supervisors] with continually updated data regarding personnel hires, remaining vacancies, and outstanding offer letters, which [were] crucial to the performance of her job." Sexual Harassment: N.C. Court of Appeals rules that N.C. State failed to take adequate corrective measures to address student harassment complaints against professor. Gonzalez v. N.C. State Univ, 189 N.C. App. 740 (Apr. 15, 2008); Wood v. N.C. State Univ., 189 N.C. App. 789 (Apr. 15, 2008). In two companion cases, the North Carolina Court of Appeals upheld decisions by the state's Industrial Commission awarding $150,000 to each of two sexual harassment victims on the ground that the defendant, North Carolina State University, was negligent in supervising and retaining one of its engineering professors. Rejecting an appeal by the University challenging the Commission's decisions, the court reasoned that victims, not just the plaintiffs, on numerous occasions had complained to school officials. In spite of this, at one point, the harassing professor was promoted. The school contended in part that the award was not warranted because victims in some instances failed to help themselves by reporting misconduct or filing formal charges. Said the court, "NCSU cannot, by turning a blind eye to reported misdeeds, hope to escape liability based on subsequent victims' failures to report later bad behavior." The court also approved of the Commission's finding that sixteen-plus years of reported misconduct and failure to address it adequately `shows institutional indifference and a lack of concern on NCSU's part. Also that `[A] person of ordinary prudence could have reasonably foreseen' that such indifference could lead to unreported sexual misconduct and the eventual injuries suffered by plaintiffs." Sex Discrimination: School settles discrimination claim involving unwed pregnancy. A former female teacher of the Gaston County Schools sued the school system,

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alleging she was demoted from teaching at a high-performing elementary school to a position teaching in at an at-risk school. She claimed she was illegally discriminated against because, at the time of her demotion, she was dating another teacher and became pregnant as a result. She alleged that an assistant superintendent accused her of "immoral" conduct and demanded to know when the two would marry. The school board contended that, under state law, the transfer was not a "demotion" because the teacher's pay was not reduced. The parties agreed to settle the suit for $99,500 without admission of liability. The attorney for the School System explained the board's action as a "business decision." According to the report, the county will pay half of the settlement award and $49,500 and the AIG Insurance Company will pay the other half. Of the total, $48,090 is for the plaintiff's attorney fees. Source: Charlotte Observer, Oct. 22, 2008. Tort Liability Defamation: Former Detroit Public Schools principal fails to prove defamation by former employer. Williams v. Detroit BoE, 306 Fed. Appx. 943; 2009 U.S. App. LEXIS 105120 (6th Cir. Jan. 15, 2009; unpublished). A former high school principal in the Detroit Public Schools was fired in 2002 for allegedly misappropriating school district funds. The principal sued the Board of Education asserting numerous claims, most of which were dismissed through protracted litigation over the course of seven years. Finally, the Sixth Circuit Court of Appeals agreed to hear the principal's appeal on his defamation claim under Michigan state law. The principal alleged the Board of Education defamed him because of (1) statements the Board of Education made to a private school that hired, and shortly thereafter fired, him and (2) because the Board of Education cooperated with the Detroit News which published an article detailing some of the financial allegations the school made against the principal. To maintain a defamation claim under Michigan state law, "a plaintiff must show that the defendant 1) made a false and defamatory statement concerning the plaintiff; 2) communicated the statement to a third party without privilege; and 3) acted with fault amounting to at least negligence." Additionally, the U.S. Supreme Court has stated that "if a plaintiff is a public official or a public figure, the First Amendment requires the plaintiff to prove that the defendant's statements are false and that the defendant acted with actual malice." The Supreme Court has also held that when defamation claims involve "matter[s] of public concern, the plaintiff must show that the statements are false" whether or not the individual involved is a public official or public figure. In affirming the lower court's decision in favor of the Board of Education, the Sixth Circuit refused to state whether the principal was a public official or public figure. However, the court decided that news stories about the financial irregularities at the school were matters of public concern and the principal had not proved that the allegedly defamatory statements were false. The court went on to state that "Detroit

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residents' interest in their school system's well-being is justified because a wellfunctioning public education system is critical to our democracy." Defamation ­ Reporting Child Abuse: Parent claims for defamatory reporting allowed to proceed. Biondo, et al., v Ossining Union Free School Dist, et al., 2009 NY Slip Op. 7368 (Oct. 13, 2009) Defendant school employees reported allegations of child abuse by a mother of a student in one of their pre-school classes, based on observations that the mother hit her son on the hand for throwing a cookie, leaving a red mark. They also reported that the mother had been "irritable and angry" and "physically aggressive" with her son. The mother contended that she had merely "tapped" her son's hand and scolded him softly by saying, "Don't do that, it's not nice." Social services officials eventually concluded the report was unfounded. The mother sued school employees for defamation for improperly reporting child abuse and also sued the school district for negligent hiring and training of those employees. The trial court refused to grant the defendants' motion for summary judgment based on statutory immunity from liability under state law. On appeal, court held issues of fact remained as to whether the school employees had reasonable cause to suspect child abuse and, consequently, whether they reported in good faith. The court ruled, however, that summary judgment was warranted on the negligent hiring, supervision, and training claims. Due Process and Procedural Issues North Carolina Court of Appeals rejects professor's wrongful discharge lawsuit because he failed to "exhaust" available administrative remedies available to him previously. Johnson v. University of North Carolina, 2010 N.C. App. LEXIS 187 (Feb. 2, 2010). A Winston-Salem State University professor was terminated during his contract period for failure to fulfill his duties. His lawsuit was dismissed by the court for failing to "exhaust administrative remedies" available to him by the University to challenge the dismissal. The assistant professor had appealed, initially to a faculty committee, which ruled against him. He failed, however, to further appeals to the Board of Trustees and Board of Governors as provided by university procedure. The professor argued to the court that the procedure simply stated that he "may" appeal to the Board of Trustees, not that he "shall" appeal; i.e., that internal appeal was discretionary not mandatory. The court rejected that argument, determining that "may" simply meant the professor had the choice to challenge the decision by appeal.

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School Officials' Immunity from Liability U.S. Supreme Court alters qualified immunity analysis, eliminating two-step test. Pearson v. Callahan, 129 S. Ct. 808 (U.S. Jan. 21, 2009). Since the U.S. Supreme Court's 2001 decision in Saucier v. Katz, 533 U.S. 194, government officials have been entitled to qualified immunity from liability for civil rights violations unless it can be shown that (1) a plaintiff's constitutional was violated and (2) the constitutional right that had been violated was "clearly established" at the time of the violations. Qualified immunity balances two interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield them from being sued when they perform their duties reasonably. In a case involving immunity for police officers who conducted a warrentless drug search of the plaintiff's home, the U.S. Supreme Court re-examined its immunity rule. In a unanimous decision written by Justice Alito, the Court held that the two-step analysis remains "often appropriate," but "should no longer be regarded as mandatory in all cases." Influencing the Court's decision was the fact that lower federal courts have struggled to apply the two-step analysis and as a consequence, the procedure "create[s] a risk of bad decision making" because the Constitutional issues in many cases are not entirely elucidated when immunity is asserted. As a result, the Court ruled that the officers were entitled to immunity. Special education teacher not immune from claims of physical and emotional abuse allegedly cause by the teacher's classroom aide. Farrell v. Transylvania County Board of Education, 682 S.E.2d 224 (NCA, Aug. 18, 2009). This is a case re-heard and re-decided by the North Carolina Court of Appeals. The plaintiff's allegations are summarized by the court as follows. During the 2001 school year, Sean was a student with severe disabilities in defendant's self-contained, special needs classroom. Sean became the victim of physical and emotional abuse at the hands of one of defendant's teacher's aides, Jane Wohlers ("Wohlers"). According to the complaint, Wohlers (1) force fed Sean on a regular basis, at times to the point of choking; (2) yelled at him and used abusive language; (3) violently jerked back his head and pulled his hair while washing his face; and (4) used a stuffed animal she knew that Sean was terrified of to intimidate him to stay on his mat for naptime. Defendant received other complaints about Wohlers' abusive behavior towards the students in her classroom. One aide witnessed Wohlers (1) yell at the children; (2) pinch them behind their ears and squeeze them under the arms causing bruises; (3) stuff food into students' mouths, hold their heads in a headlock and continue to stuff food into students' mouths until they gagged during which time one student projectile vomited; (4) verbally intimidate the children by yelling at them until they broke down

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crying; (5) hold their foreheads roughly and yank their heads back in order to wash their faces in the bathroom; and (6) make inappropriate sexual and lewd comments in front of the children. Another aide reported that Wohlers stated, "I can say whatever I want because these kids can't talk so they can't tell their parents" and that she could "do whatever she wanted to one of the black children in the room because his bruises wouldn't show." As a result of the alleged abuse, Sean stopped eating. His condition became so severe that he was admitted to Mission Hospital from 16 January through 24 January 2002 for intravenous therapy and a thorough medical work-up to find a cause for his severe anxiety associated with food. The tests indicated that there was no physical reason for Sean's failure to eat and drink. The attending pediatric physician and residents from Mission Hospital, including the gastro-intestinal doctor and occupational therapists all agreed that his eating problems were consistent with severe anxiety and depression due to suspected child abuse in the classroom. Ultimately, a feeding tube was inserted for a period of approximately six months. The child's parents sued the school system, as well as the teacher aide, the teacher (appellant), the assistant principal, the principal, other supervisors, and the superintendent. The matter before the court involved the teacher's appeal from the trial court's denial of summary judgment based on her assertion of public official immunity in her individual capacity against plaintiffs' negligent infliction of emotional distress claim and of qualified immunity in her individual capacity against federal civil rights claims. (The trial court granted summary judgment for all defendants based on qualified immunity against federal claims in their official capacities.) Under North Carolina law, a public official is 1) a position created by constitutional or statutory authority, 2) exercises sovereign power, and 3) exercises discretion as compared to performing ministerial duties. According to the court, while `teacher' is statutorily defined by 115C-325 (Tenure Act) and a teacher's duties are described in 115C-307, the position is not statutorily created, and therefore does not satisfy the first prong of the public official test. On the other hand, `school administrator' (including principal, assistant principal, and superintendent) is statutorily created pursuant to 115C-287.1 and individuals in these positions would be public officials in the state exercising discretionary functions. The Court also found that teachers, in general, do not satisfy the second or third prongs of the public official test, stating that "although teachers serve a vital role in the public education of the children of this state, they do not meet the test for public official immunity." Regarding qualified immunity against federal claims, the U.S. Supreme Court's decision in Pearson v. Callahan, 129 S. Ct. 808 (U.S. Jan. 21, 2009), modified the qualified immunity rules and gave lower courts more discretion in applying the rule. In light of that, the North Carolina Court of appeals reconsidered its decision in this case regarding the teacher's qualified immunity against federal claims.

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As the court noted, ] "'[q]ualified immunity protects public officials from personal liability for performing official, discretionary functions if the conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" In instances where, as with the teacher, a supervisor is being sued for conduct of another employee, the law establishes the following three elements: "(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed "a pervasive and unreasonable risk" of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show "deliberate indifference to or tacit authorization of the alleged offensive practices,"; and (3) that there was an "affirmative causal link" between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. In addition, the first element has three components: (1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff. The court reasoned that, in this case, the teacher had been made aware of the aide's conduct by other teachers, who testified that they spoke to the teacher about it. In addition, the court noted that some of the alleged incidents took place in "plain view." The teacher therefore knew or should have known of these repeated instances, failed to stop them, and the child suffered harm because of the abuse. Employee Benefits and Other Issues Workers' Compensation: Teacher's anxiety disorder arising from stress of classroom not compensable. Hassell v. Onslow County Board of Education, 362 N.C. 299 (June 12, 2008). The North Carolina Court of Appeals refused a sixth-grade teacher's workers' compensation claim that her teaching job placed her at an increased risk of developing an anxiety disorder and therefore, her anxiety disorder was not a compensable occupational disease. The court found that the teacher was neither forced to perform any extraordinary tasks, nor exposed to unusual and stressful conditions. Instead, the evidence indicated that the teacher's troubles stemmed from her inadequate job performance.

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Copyright: Teacher cannot exclude other teachers from using portions of disciplinary program by claiming copyright protection. A Federal Circuit Court of Appeals concluded that a disciplinary program created by a teacher was not protected under the copyright laws. The teacher had tried to exclude other teachers at the school district from implementing elements of the program in their classrooms. However, the program was excluded from copyright protection because it was a business idea created as part of the teacher's work for the system.

Personnel Law Update Page 36 of 45


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