A lower court correctly overturned the firing of a public school teacher who posted comments on Facebook about schoolchildren drowning, the New York Supreme Court, Appellate Division ruled May 7, finding she had an otherwise unblemished 15-year career and that the termination shocked the conscience (Rubino v. City of New York , N.Y. App. Div., No. 03272, 05/07/13).
According to the February 2012 trial court ruling, the case began when Brooklyn, N.Y.-based teacher Christine Rubino left an online post regarding her students the day after a New York City student drowned during a field trip.
The court said Rubino posted on Facebook, “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” When one of Rubino's friends responded that she would “let little Kwame float away!” Rubino, the court wrote, replied that “I wld (sic) not throw a life jacket in for a million!!”
One of Rubino's Facebook friends alerted her school's assistant principal, which led to an investigation. The court said that during the inquiry, Rubino initially denied remembering the post but subsequently admitted responsibility. A hearing officer recommended her termination.
Rubino successfully challenged the recommendation in the state trial court. The court noted that in earlier cases, termination “has been held to shock one's sense of fairness where the petitioner had a long and otherwise unblemished employment history.”
It held that Rubino's 15-year history as a teacher, the fact that she posted the comments outside of school property and hours, the lack of a finding that the postings affected her ability to teach, and her repeated apologies and promises not to make another offensive post meant the termination recommendation should be vacated.
“[W]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society,” the court said. “Ending petitioner's long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.”
The intermediate appellate court agreed. The appellate court added that although the comments were inappropriate, “it is apparent that petitioner's purpose was to vent her frustration only to her online friends after a difficult day with her own students.”
It noted that Rubino was not Facebook friends with any of her students or their parents. “[T]hus, the comments were not published to them, nor to the public at large, and [Rubino] deleted the comments three days later,” the court said.
Bryan D. Glass, Glass Krakower LLP, New York, argued for Rubino. Michael A. Cardozo, New York Corporation Counsel, New York, argued for the city.
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