Rosenberg v. Metlife, Inc., 493 F.3d 290; 2007 U.S. App. LEXIS 15341 (2d Cir. 2007) 

Mr. Rosenberg brought an action against his former employer, MetLife, Inc. (“MetLife”).  Mr. Rosenberg’s allegations included an assertion that MetLife’s statements on his Form U5 were malicious and defamatory.  The Form U5 stated the following reason for Mr. Rosenberg’s employment termination from MetLife:

An internal review disclosed Mr. Rosenberg appeared to have violated company policies and procedures involving speculative insurance sales and possible accessory to money laundering violations.

Judge Rakoff of the United State District Court for the Southern District of New York held that such statements are absolutely privileged and granted summary judgment to MetLife on the libel claim.  Rosenberg v. Metlife, Inc., 2005 U.S. Dist. LEXIS 2135 (S.D.N.Y. 2005).  The United States Court of Appeals for the Second Circuit found on appeal that the issue of whether the statements were subject to an absolute or qualified privilege was a question of New York law.  Rosenberg v. Metlife, Inc., 453 F.3d 122 (2d Cir. 2006).  The Second Circuit certified to New York State’s highest court, the New York Court of Appeals, to rule on the issue.  Id.  The New York Court of Appeals ruled that such statements are subject to an absolute privilege.  Rosenberg v. Metlife, Inc., 866 N.E.2d 439, 8 N.Y.3d 359, 368, 834 N.Y.S.2d 494 (2007).  Thereafter, the Second Circuit affirmed the initial summary judgment ruling on the libel claim.

Should you have any questions relating to the Form U5, expunging information on the Form U5 or employment issues generally, please feel free to contact Russell J. Sweeting, Esq. by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.

Following her release from a term of imprisonment, the mother took significant steps to rehabilitate.  She attended a four week program aimed at personal development, employment skills and team building; completed a mental health and substance abuse program; participated in individual counseling at women’s trauma groups; obtained a job with her former employer as a certified nurse’s aide; and was attending Alcoholics Anonymous.

In reviewing the mother’s claim that her efforts constituted sufficient rehabilitation, the Court explained that under Connecticut law, personal rehabilitation refers to the restoration of a parent to his or her former constructive and useful role as a parent in light of the needs of the particular child.  Importantly, sufficient rehabilitation must be foreseeable within a reasonable time.  In assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather, whether she has gained the ability to care for the particular needs of the child at issue.  In affirming the trial court’s decision, the Appellate Court noted that the evidence demonstrated the mother would need to remain sober, and seek treatment for several years before she could function independently on a day-to-day basis.  Indeed, as one expert testified, the mother would require a period of rehabilitation lasting three years, if not greater, to establish not only the sobriety, but also the personal resources to deal with significant life stressors without decompensating again.

Based on evidence that the mother would need to maintain sobriety for several years before it could be determined with a reasonable level of psychological certainty that she could remain sober, and a reliable parent, the Court held that the trial court did not err in determining the mother failed to achieve personal rehabilitation.

Should you have any questions regarding DCF matters, or family matters generally, please do not hesitate to contact Michael D. DeMeola, Esq.  He can be reached by telephone in the firm’s Westport Office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In its decision, the court first noted the standards governing the father’s motion to modify and the disposition of the neglect proceeding, respectively.  First, it explained that after an adjudication of neglect, a court may: 1) commit the child to the Commissioner of DCF; 2) vest guardianship in a third party; or 3) permit the parent to retain custody with or without protective supervision.  In determining the disposition portion of the neglect proceedings, the court must decide which of the custody alternatives is in the child’s best interest.  With respect to the father’s motion to modify, the court noted that a party seeking modification of an existing court order must demonstrate a substantial change in circumstances to warrant the change requested.

From a factual standpoint, the court found that the mother and father were never married.  Although the father had an extensive criminal background, and had been incarcerated for domestic violence directed at the child’s mother, he was later released on probation.  His new residence was approved by the Office of Adult Probation, and was also approved as an appropriate placement for the child.  At the time of the hearing, the father was employed, had no pending criminal charges and was compliant with his conditions of probation.  Immediately prior to the filing of the neglect petition, the mother was arrested on numerous narcotics charges, which were still pending at the time of the hearing.  After her arrest, both she and the father allowed the child to reside with the maternal grandmother during the mother’s access time.  At the time of the hearing, the mother was living in a sober house.

After reviewing the evidence, and presumably based on the father’s release from prison (and the mother’s subsequent arrest), the court found that a substantial change in circumstances existed warranting a modification to the then existing custody and visitation orders.  Simultaneously addressing its obligation to select a custody arrangement for the child pursuant to the neglect proceedings, the court further found that it was in the child’s best interest to live with the father on a primary basis, subject to a six month period of protective supervision.

Should you have any questions regarding DCF matters, or family matters in general, please feel free to contact Michael D. DeMeola, Esq.  He can be reached in the firm’s Westport office by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In this particular case, the plaintiff was an employee at a safe home located in the Hartford, Connecticut area, and was responsible for watching over children.  One August afternoon, the plaintiff took a small group of children bowling.  During the outing, he made three additional stops, each time leaving the children alone in the car.  During the first stop, which lasted just a couple of minutes, the children were visible from within the store, and the plaintiff stepped outside periodically to confirm contact with them.  He was able to observe the children during the second stop as well; however, at times, the car was obscured from his view.  The plaintiff was in the second store for approximately two minutes.  During the third and final stop, the plaintiff went into a grocery store, leaving the children in a covered parking area such that they were not visible at all from within the store.  The plaintiff never left the keys in the car, and the children reported that, although it was hot in the vehicle, they were never scared or fearful when the plaintiff was gone.

The hearing officer upheld the substantiation of physical neglect on the basis that the plaintiff failed to provide adequate supervision for the three children by leaving them alone in the vehicle.     The hearing officer stated that “to support a finding of physical neglect, DCF must demonstrate that the plaintiff acted in a neglectful manner toward the children” and, absent a specific adverse impact, must demonstrate that the plaintiff’s behavior was “so egregious it demonstrated a serious disregard for the children’s welfare.”

On appeal, the reviewing court held that the hearing officer was correct in concluding the plaintiff was neglectful. The Court relied in part on the fact that the plaintiff admitted to a DCF investigator he had acted irresponsibly and had made a “mistake.”  Although the court conceded the children were not adversely impacted, it nevertheless agreed with the hearing officer that even in the absence of an adverse impact, if a single incident demonstrates a serious disregard for the children’s welfare, DCF may make a finding of physical neglect.  The court further found that although the first two times the children were left for short periods and in the plaintiff’s plain view, the third time he left them in a limited access parking lot, which the hearing officer could reasonably conclude was inappropriate and showed a “serious disregard” as it was still uncomfortable in the van, and the children were exposed to harm from third parties. The court also noted that the hearing officer could reasonably conclude that the plaintiff showed “serious disregard” because he had a special duty to protect the children, already committed to DCF and assigned to his care.

Should you have any questions regarding DCF matters, or family matters generally, please do not hesitate to contact Michael D. DeMeola.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100, or by e-mail at mdemeola@mayalaw.com.

The hearing officer found that DCF had received several prior reports for this family, ranging from allegations of physical abuse to emotional neglect.  The hearing officer also found that on one occasion, the plaintiffs forced their nephew to sleep on dirty laundry, and on other occasions, locked him out of their home.  At one point, the aunt and uncle stated the nephew was a financial obligation and they did not want him to return to their care.  Shortly thereafter, the plaintiffs agreed to transfer guardianship of the child to the paternal uncle.

The hearing officer upheld the allegations of physical neglect as to the nephew based on his finding that the child had been wrongfully denied access to his home.  The hearing officer also upheld the substantiation of emotional abuse as to the nephew because of an incident in which the plaintiffs took the child’s backpack and school books from him, and because of several inappropriate statements the plaintiffs made about the child to third parties.

In explaining its limited role on appeal, the court stated that it may not retry the case or substitute its own judgment for that of the administrative agency with respect to the weight of the evidence or questions of fact.  Rather, its duty is simply to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.  The fact that a hearing officer discounted contrary evidence in the record does not affect the validity of the DCF decision. In reviewing the case on appeal, the Court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, either in whole or in part.

In light of that standard, the court ultimately held that the testimony and documents produced at the hearing convinced the officer to uphold DCF’s determination. As the Court expounded, “The ‘book bag incident,’ the ‘sleeping on dirty clothes event,’ the plaintiffs’ insults of [the child] given at the hospital and probation office, and the barring from the house for both [children] were in the record.”  Therefore, there was no basis to overturn the hearing officer’s decision.

Should you have any questions regarding DCF cases, or family matters generally, please do not hesitate to contact Michael D. DeMeola.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In the underlying custody action, the mother filed a motion for sole custody, which the Court scheduled for trial in October, 2011.  During the hearing, the court appointed Guardian Ad Litem recommended that the father have supervised visitation only.  She also recommended that the father consult a therapist to understand, a) what the child had gone through, b) how he can help her feel secure, c) how he could help her cope with the abuse she sustained, and d) how he should approach a visit when the child was ready.  The G.A.L. further recommended that the father undergo seven to eight months of therapy before commencing visitation.

The G.A.L. also testified that the child was thriving in the mother’s care.  Interestingly, the G.A.L., and presumably the Court, took the parties’ acrimonious relationship into account as well.  Indeed, the Court pointed out that joint legal custody was not recommended because it would keep the parties in constant conflict.

In light of the above, the Court ultimately awarded the mother sole legal and physical custody of the child.  The Court further ordered the father to undergo a clinical evaluation, individual therapy and reunification therapy before the commencement of supervised visitation.

Should you have any questions regarding DCF proceedings, or family matters generally, feel free to contact Attorney Michael D. DeMeola.  He practices out of the firm’s Westport office, and can be reached by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

In Roth v. Weston, 259 Conn. 202 (2002), the Supreme Court held that a third party seeking visitation with a minor child must plead a relationship with the child akin to that of a parent, as well as real and substantial emotional harm analogous to the type of harm required to prove that a child is neglected, uncared-for or dependent under the standard set forth in temporary custody and neglect statutes.  The Court further explained that the degree of specificity of the allegations must be sufficient to justify requiring the parent to subject his or her parental judgment to unwanted litigation.  Once alleged, the third party must then prove the allegations by clear and convincing evidence.  As its rationale for imposing such a strict standard, the Court pointed to, at least in part, the landmark United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), in which the Court observed that “the liberty interest… of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this court.”

Turning to third party custody actions, the Connecticut Supreme Court in Fish noted that, pursuant to Connecticut General Statutes §46b-56b, in disputes regarding the custody of a minor child involving a parent and non-parent, there shall be a rebuttable presumption that it is in the best interest of the child for the parent to retain custody unless such custody is shown to be detrimental to the child.  As the Court explained, the rebuttable presumption and standard of harm articulated in the statute protects parental rights because the requirements preclude the court from awarding custody on the basis of a purely subjective determination of the child’s best interests or the judge’s personal or lifestyle preferences.

In reviewing the meaning of Connecticut General Statutes §46b-56b, the Court ultimately rejected the invitation to adopt and apply the definition of harm it previously articulated in Roth.  Drawing a distinction between custody proceedings and visitation proceedings, the Court explained that in the former, the harm alleged stems from the denial of visitation with the non-parent.  In third party custody actions, however, at issue is the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child.  In light of that fundamental difference, the Fish Court concluded that since a custody action directly attacks the competence of the parent, the standard employed to protect the liberty interests of the parent must be more flexible and responsive to the child’s welfare.  Thus, it held that “… the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.” Id. at 56.  The Court added, “…this does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself, but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time.”  Id.

Should you have any questions regarding third party custody actions, or family matters generally, please feel free to contact Michael D. DeMeola, Esq.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Facts

            The student involved (“B.C.”) was a ten year old fifth grader at Berea Elementary School in Montgomery, New York.  On September 12, 2007, B.C.’s science teacher asked her students to fill in a picture of an astronaut and write various things in the body and appendages of the astronaut.  The class was instructed to write a “wish” in the left leg of the astronaut.  The teacher told the class that “you can write, like, anything you want . . . you can involve a missile . . . [y]ou can write about missiles.”  Thereafter, B.C. wrote on the astronaut as his “wish”: “Blow up the school with the teachers in it.”

            B.C. told his classmates seated nearby what he was going to write in the picture and the other students laughed in response.  A neighboring female student walked over to look at B.C.’s picture and reportedly also laughed at it.  She then approached the teacher—who perceived the female student to be “very worried”—and told the teacher about the drawing.  The teacher asked B.C. if he meant what he had written, to which B.C. reportedly responded “with a blank and serious face.”  The teacher then sent B.C. to the principal’s office.

            B.C. told the principal that he did not mean what he had written.  The principal called the school Superintendent for advice regarding B.C.’s punishment and the Superintendent stated that suspension was appropriate.  Incredibly, at the end of the meeting, the principal asked B.C. to sign a document consisting of the principal’s notes as taken during the meeting.  B.C. signed the document notwithstanding the fact that he could not read the principal’s handwriting (the opinion is silent on whether B.C. signed in crayon).  Later that day, the principal met with B.C. and his parents where B.C. again stated that he did not mean what he had written and that he was only kidding.

            Following that meeting, the principal imposed a five-day out-of-school suspension, and a one-day in-school suspension based upon the “wish.”  Upon appeal, the District Board of Education upheld the suspension, and B.C.’s parents filed a federal lawsuit claiming that his suspension violated his First Amendment right to freedom of expression, and constituted an excessive punishment.  The federal District Court granted summary judgment in favor of the school board from which B.C.’s parents appealed to the Court of Appeals.

The Court’s Analysis and Decision

            The Second Circuit began its discussion with a review of the Tinker, Fraser, Hazelwood trilogy of Supreme Court cases, as informed by a recent decision of its own (Doninger) before restating the operative, objective test governing constitutional protection of B.C.’s “wish”: “whether school officials might reasonably portend disruption from the student expression at issue.” (Parenthetically, it should be noted that Tinker required the reasonable “forecast of substantial disruption of or material interference with school activities”—those qualifiers have meaning).  The test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable.  The relevant inquiry goes to the reasonableness of the administration’s response, as opposed to the intent of the student.

            In upholding the suspension and thereby finding that it was reasonably foreseeable that the astronaut drawing could create a substantial disruption at the school, the Second Circuit relied upon the facts that (a) B.C. had prior disciplinary issues, (b) his prior drawings and writings also “embraced violence,” (c) the drawing was seen by other students in the class, and (d) the reporting female student was perceived as “very worried.”    The first two factors seem to impermissibly shift the analysis from the “speech” to the “speaker,” where B.C.’s prior disciplinary issues were hardly atypical of a 10 year-old boy.  (Query whether B.C.’s “wish” would have been protected First Amendment expression if it had been drawn by a student other than B.C., i.e., one with an unblemished disciplinary record?).  The court also deemed irrelevant whether the “wish” was intended as a joke, and the fact that B.C. lacked the capacity to carry out the threat.  Post Columbine, courts have displayed extraordinary deference to school officials where there is any portent of violence contained within student speech or expression.

            The court concluded its opinion with an extended syllogism that has to be read to be appreciated.  Suffice it to say that the Court of Appeals begins with B.C.’s “wish” and constructs a chain of reasonably foreseeable consequences ending with a decline in parental confidence in school safety, the need to hire security personnel, and even a decline in enrollment.  As a result, the court held B.C.’s suspension to be constitutional.  This would appear to be a “zero tolerance” case that was decided to B.C.’s detriment solely because nobody wanted to be held retroactively responsible for whatever B.C. might do in the future.

The Dissent

            The Second Circuit decision was decided by a three-judge panel, on a 2-1 basis.  One judge wrote a lengthy dissent.  Therein he stated his belief that a jury could conclude that B.C.’s “stab at humor” could barely cause a stir at school, much less a substantial disruption.  Few students saw the drawing and those that did laughed as a result.  Not a single student understood B.C.’s “wish” to be a serious threat.

            The law does not have a “litmus test” whereby speech or expression that involves violent content automatically forfeits all First Amendment protection.  The lewd and obscene, the profane, the libelous, and a true threat, are devoid of constitutional protection, whether uttered in school or on the street.  The Supreme Court, however, has made it clear that school officials have broader authority to sanction student speech that might otherwise be protected if made by an adult in another context.  This is a common sense reflection of the special characteristics inherent in the school environment and society’s interest in teaching students the boundaries of socially appropriate behavior.  None of those pedagogical concerns were present in B.C.’s case.

            It was B.C.’s teacher who suggested writing about military hardware.  As the dissenting judge succinctly states, with regard to the reporting female student, “a jury could conclude that she was prim, not petrified.”  B.C.’s drawing, viewed briefly and by only a few, did cause brief and minimal disruption in his classroom; some children laughed and a classmate reported him to his teacher.  This is not the “substantial disruption” that Tinker found sufficient to displace a student’s First Amendment rights.

            Significantly, the dissenting judge lamented what he saw as the absence of a causal relationship between the speech sought to be suppressed and the harmful effects that justify its suppression.  Stated differently, the pertinent issue is whether school authorities correctly forecast that B.C‘s “wish” had the potential to cause a substantial disruption, or whether, instead, they improperly used it to try to forecast future conduct of B.C., himself.  While school officials may investigate and detain a student who uses violent or even ambiguous language in order to determine whether he poses a genuine threat to himself or others, there is a huge difference between precaution and protection, on the one hand, and punishment, on the other.

            Finally, natural fear of another Columbine should not blindly and blithely insulate the actions of school officials against constitutional scrutiny.  In the words of Justice Alito in another case, “[i]n their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse.”  That was clearly not done in B.C.’s case.  It is one thing for courts to defer to school officials who have thoughtfully applied their background, education, and experience to conclude that a particular form of student speech could result in a substantial disruption at the school.  It is quite another for reviewing judges to reflexively “rubber stamp” the abrogation of student freedom of speech in the name of “political correctness.”

The Takeaway for Parents

            Last year, we here at Maya Murphy, P.C. published “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law” that contained a section devoted to students’ First Amendment rights in the digital age.  That section contained an in-depth discussion of the Doninger case relied upon by the court in B.C.’s case, and concluded with the warning: “the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption.”  Unfortunately, while B.C.’s case may render the law more “settled,” it also leaves parents and students more at risk as a result of a casual utterance or expression at school.  For the time being, it must be assumed that any spoken or written reference to, or depiction of, weaponry, violence, property damage or bodily injury, may form the basis for student discipline.   Students (and their First Amendment rights) will be sacrificed on the altar of “zero tolerance” that sometimes seems also to worship “zero common sense.”

If you have a question about education law or if you would like to receive a copy of our “Advocating on Your Child’s Behalf” publication, please contact me in our Westport office.

Robert L. Keepnews, Esq.

(203) 221-3100

rkeepnews@mayalaw.com

In reviewing the mother’s motion, the Court first noted that under the circumstances, she had to prove that the maternal grandmother was suitable and worthy, and that the proposed transfer to the maternal grandmother would be in the children’s best interests.  In reviewing the facts, however, the Court concluded that the mother failed to meet her burden.  First, the Court explained that the grandmother suffered from anxiety, and had a history of addiction stemming from two motor vehicle accidents.  At one point, in furtherance of that addiction, the grandmother called in fake prescriptions, which resulted in criminal charges.  Additionally, in 2009, she was arrested for robbery, assault, larceny and disorderly conduct.  The Court further noted that the evidence demonstrated an unhealthy relationship between the mother and maternal grandmother, which included frequent fighting that led to relatively serious injuries to both parties.  The Court found that the grandmother also enabled the mother’s drug habits, which included the use of heroin.

In light of the evidence presented, the Court ultimately held that the grandmother was not suitable and worthy to become the children’s guardian, and that such transfer of guardianship would not be in the children’s best interests.

Should you have any questions regarding DCF proceedings, or family matters generally, please do not hesitate to call Michael D. DeMeola, Esq.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

If the employer elects to describe a full termination as “permitted to resign,” “discharged,” or “other,”, then an explanation must be provided.  No such explanation is necessary if the full termination is deemed “voluntary.”  Disclosure of the employee’s involvement in investigations, internal reviews, regulatory actions, criminal matters and customer complaints must also be made by the employer.

In many cases, an employer and employee may disagree on what led to an employment termination and on the circumstances of the departure.  A disparaging remark, untrue statement or misleading explanation on Form U5 can jeopardize the ability of an individual to continue working in the securities industry.  A prospective employer may pass over a job candidate who has what has come to be known as a “Dirty U5” from a previous employer.

The Financial Industry Regulatory Authority (“FINRA”) does provide a forum for an employee to pursue arbitration against a former employer to contest a “Dirty U5.”  However, the best course of action is to avoid the problem from ever arising.  Registered employees in the securities industry are well advised to seek legal advice and counsel once it becomes apparent that their employment may be coming to an end.  In many cases, the disclosures made in the Form U5 by the employer may be mutually agreed upon before the employment termination ever occurs.

Should you have any questions relating to the Form U5, or employment issues generally, please feel free to contact Russell J. Sweeting, Esq. by telephone at (203) 221-3100 or by e-mail at rsweeting@mayalaw.com.