Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’
On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.
Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.
When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.
Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.
Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."
The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf
N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Sep 13, 2010
Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Jordan To was employed by US Bank as a Senior Research Clerk.
While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.
When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."
As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."
Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.
To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.
In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.
By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.
The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.
Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.
Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.
Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.
To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83
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Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Jordan To was employed by US Bank as a Senior Research Clerk.
While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.
When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."
As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."
Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.
To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.
In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.
By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.
The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.
Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.
Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.
Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.
To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83
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Why lay people are sometimes confused by administrative law
Why lay people are sometimes confused by administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:
"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."
Thanks to How Appealing for the pointer.
Edward M. “Ted” McClure
* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:
"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."
Thanks to How Appealing for the pointer.
Edward M. “Ted” McClure
* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]
The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.
A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.
Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”
Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.
The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.
Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”
The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]
The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.
A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.
Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”
Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.
The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.
Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”
The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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