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‘Repulsive’ but Isolated Facebook Remarks Didn’t Justify Discharge

By Allen Smith  5/31/2013
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Outrageous remarks on Facebook apparently are OK in New York and not necessarily grounds for discharge of the employee who made them—at least when the employee is a public school teacher.

On June 22, 2010, a New York public school student drowned during a field trip to the beach. The next day, Christine Rubino, a New York public school teacher, posted on her Facebook page, “After today, I am thinking the beach sounds like a wonderful idea for my fifth graders! I HATE THEIR GUTS! They are the devil’s spawn!”

A Facebook friend posted, “oh you would let little Kwame float away.”

Rubino responded, “Yes, I w[ou]ld not throw a life jacket in for a million!”

Another one of Rubino’s friends, also a public school teacher, contacted the school’s assistant principal and expressed concern about the propriety of the postings. The assistant principal showed the postings to the principal, who contacted the special commissioner of investigation for the New York City School District, which initiated an investigation.

On Nov. 15, 2010, the commissioner issued his final report and the school district adopted his recommendation that Rubino be discharged.

On Dec. 15, 2010, the investigator interviewed Rubino’s friend, who initially said she was responsible for the postings. But when the investigator warned the friend that she could be incarcerated for perjury, she recanted and said that Rubino had asked her to take responsibility for the postings so Rubino would not lose her job.

Wrong Forum to Vent

At a hearing in 2011, Rubino admitted to posting the comments, noting that she did so after a hard day at work and removed them from her page three days later.

She apologized for the postings, stating, “I’m sorry for it. I definitely chose the wrong forum to vent. … I’m sorry people took it as offensive, and if I could take it back, I certainly would, but I did take it down when I realized it wasn’t just how I felt anymore.”

She also testified that she changed the way she uses Facebook. She uses it now only to keep in touch with “very close friends and very close family members” and no longer expresses her opinions on her page.

Bring That Teacher an Apple

Showing just how difficult it is to fire a public employee, on Feb. 1, 2012, the Supreme Court of the State of New York vacated Rubino’s termination. She made the statement to a small, private, adults-only audience, and apologized for making the remark, the court noted.

“While her reference to a child’s death is repulsive, there  is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance, the court said, noting that she had an otherwise unblemished employment history for 15 years.

And there was no reason to believe she would post inappropriate or offensive comments online again, Judge Barbara Jaffee wrote. Rubino “apologized during the administrative hearings for the posts, and expressed tearful remorse at oral argument before me,” the judge noted And Rubino’s “clumsy attempt at a cover-up reflects panic, not planning.”

So what exactly is her brood of devil’s spawn to make of this case? “While 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. Ending petitioner’s long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.”

On May, 7, 2013, the New York Supreme Court, Appellate Division, affirmed, noting that none of Rubino’s students or their parents were part of her network of friends. “Under the circumstances, which include the lack of a prior disciplinary history during petitioner’s 15-year career, and her expression that she would never do something like this again, the Supreme Court properly found the penalty of termination to be shocking to one’s sense of fairness,” the court concluded (Rubino v. City of New York, 2013 NY Slip Op 03272).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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