Worldwide Defamation | Tenure by Estoppel | Age Discrimination

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There’s No “Worldwide” Common Interest Privilege

There’s No “Worldwide” Common Interest Privilege

Recently in Trump Village Section 4, Inc. v. Bezvoleva, a Brooklyn Court ruled that a former co-op board president may continue with his defamation claim against a group of co-op shareholders who published a website critical of him.

The co-op shareholders moved to dismiss the defamation action on the ground of “common interest privilege.”

In its analysis, the Court first explained that the “elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se.” Here, the complaint allege that the co-op shareholders, “acting with knowledge of the falsity of these statements and the implications therefrom, reckless disregard for the truth, and/or with malicious intent, have made false statements which have caused them special damages or which are defamatory per se.”

The Court also explained that the common interest privilege relied upon by the co-op shareholders is a qualified common-law privilege for statements made by one person to another on a subject in which both persons share a common interest. This is often used in the workplace setting. “The rationale for applying the common interest privilege . . . is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded.”

The Court noted, however, that “the shield provided by the common interest privilege is dissolved where the defendants disseminate the statements in a manner which exceeds the scope of this privilege or constitutes excessive publication. Thus, alleged defamatory statements are not protected by the common interest privilege where they are ‘disseminated to those who do not have either a common interest in them, or a legal, moral, or social duty to speak upon the subject of the communications.’”

Here, the Court noted, that the communications contained on the website were not disseminated solely to Trump Village community residents. There was no required password limiting access to the website to Trump Village community residents. Rather, defendants knowingly published these statements “on the worldwide web to the general public to whom its publication was not privileged.” The Court further found that while the co-op shareholders “may have directed their statements to Trump Village community residents, they were well aware that anyone having access to the internet could read these statements. Indeed, as pointed out by plaintiffs, when typing the phrase ‘Trump Village’ into the search engine Google, the website appears as the fourth search result out of about 102,000,000 results.” Since the alleged defamatory statements were “widely published . . . to persons to whom they were not privileged to publish it, the fact that the statements were also communicated to persons to whom they were privileged to publish it does not prevent their conduct from being an abuse of the common interest privilege and excessive publication.” The Court also noted that the common interest privilege can be defeated by a showing of malice. “To establish the malice necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e.,knowledge of falsehood of the statement or reckless disregard for the truth.”

The motion to dismiss was denied, and we have yet another decision on this new field of internet defamation.

Four Years But No Tenure

Four Years But No Tenure

In a recent decision of New York’s Appellate Division, a Long Island teacher was unsuccessful in overturning a school board’s decision to deny her tenure and terminate her employment without a due process hearing, despite having been employed in the district as a teacher for four consecutive years.

In Christian v. Bayport-Blue Point Union Free School District, the petitioner-teacher began working for the district as a permanent substitute for one year in a general education kindergarten class. After that year, she was appointed to a probationary special education teacher position, which she held for three years. After her third year in that position, the school board, upon the recommendation of the Superintendent, denied her tenure and terminated her employment. In this action, the petitioner claims that she obtained “tenure by estoppel,” as she worked for the district for four years. Normally, a teacher is appointed to a three year probationary term, and at the end of the third year, the board of education must act to either terminate the teacher’s employment, or grant permanent employment which thereafter cannot be terminated without a due process hearing. Tenure may also be acquired “by estoppel,” however, when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term. 129 A.D.3d 836 (2d Dept. 2015).

The State education regulations state that a professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the “elementary tenure area.” A professional educator who is employed to devote a substantial portion of his or her time to instruction in the education of children with handicapping conditions/general special education tenure area, is deemed to serve in a special subject tenure area encompassing such subject. See, 8 NYCRR  30–1.8(a)(7). The term “substantial portion” of time means 40% or more of the total time spent by a professional educator in the performance of his or her duties.

Here, the Court distinguished the petitioner’s two positions, and concluded that because the year spent in the general education kindergarten classroom was a different tenure area than the next three years spent in the special education classroom, under State education regulations, the school never accepted her services for longer than three years in any one tenure area. Thus, she did not receive tenure by estoppel, and her challenge was properly denied.

Octogenarian Teacher’s Suit Revived

Octogenarian Teacher’s Suit Revived

A New York City teacher’s federal action for employment discrimination was recently revived by the Second Circuit Court of Appeals. The plaintiff, an 80 year old tenured teacher brought an action against the New York City Department of Education (“DOE”) and three former and current school officials, alleging they violated a number of federal, state and municipal laws by discriminating against her on the basis of her age and disabilities.

The teacher had been employed by the DOE since 1978. Plaintiff suffered from severe arthritis, which limited her ability to walk, and suffered from allergies, which limited her ability to breathe in cold climates. Plaintiff previously sued the DOE in June 2003, alleging that the DOE violated the Age Discrimination in Employment Act (“ADEA”) by treating younger employees more favorably. That suit settled in Plaintiff’s favor in July 2006, and plaintiff now alleges that, as a result of that suit, defendants have continued to discriminate and retaliate against her. She alleges that in the years that followed, the defendants began a “campaign to force [her] to retire.” This “campaign” included, inquiries as to when she would retire, use of profanities, false accusations against her, denying her preference for assignments — despite seniority — placing unfounded disciplinary letters in her personnel file, as well as unfounded negative performance evaluations.

Plaintiff brought her initial complaint in this action in June 2010, and as a result, the alleged discrimination and retaliation again intensified. Ultimately, plaintiff was brought up on disciplinary charges under Education Law 3020-a, after she refused to accept an alternative teaching assignment. The DOE cited eight charges of misconduct in the disciplinary hearing. The hearing officer concluded that there was just cause for termination as she was insubordinate, neglected her duties, was unfit to perform her obligations, violated by-laws, rules or regulations of the Chancellor, engaged in conduct unbecoming a teacher, and was incompetent in her service. Her employment was thus terminated.

Plaintiff challenged this determination in State court, but the hearing officer’s determination was upheld, as the penalty was not so severe as to “shock one’s sense of fairness.”

Two weeks after the State decision, plaintiff amended her federal complaint in her discrimination action alleging that defendant’s conduct violated the ADEA, Americans with Disabilities Act (“ADA”) and New York’s Human Right’s Law, among other things. The defendants moved to dismiss the complaint, arguing that the prior State court challenge to the 3020-a determination, from which she was terminated for cause, had already decided these issues, and thus precluded plaintiff from re-litigating the same issues now in federal court. The district court agreed, but the plaintiff appealed — and won.

The Second Circuit held that “the District Court erroneously concluded that the Section 3020-a hearing’s determination that there was cause for [plaintiff’s] termination precludes [plaintiff] from making a prima facie case of discrimination or retaliation. There is no indication that the Section 3020–a hearing addressed, much less ‘actually decided,’ whether the charges leading to [plaintiff’s] termination were driven, even in part, by discriminatory or retaliatory intent. The court’s error thus stems from the faulty assumption that termination for cause necessarily precludes the possibility of termination motivated by unlawful animus. The hearing officer’s determination that [the plaintiff] had engaged in the charged conduct, and that these violations called for her termination, does not preclude a jury from later finding that [the plaintiff] was also terminated at least in part because of [discriminatory reasons]. The plaintiff could be successful on the [discrimination or retaliation] claims even if the jury were to accept that there were legitimate reasons for terminating her, too.” The Appeals Court reinstated her age discrimination claims. Plaintiff’s ADA claims were likewise revived.

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