Thursday, May 17, 2018

On ending disputes prematurely. Baseball and university professors.

On Wednesday, May 16, 2018, Jorge Ortiz of USAToday headlined that Brandon Belt of the San Francisco Giants
questioned the integrity of an umpire and wrote:

On Wednesday it was the San Francisco first baseman [Belt] who expressed his frustration, in
clear and accusatory terms against home plate umpire Doug Eddings.

Belt, who took a questionable third strike for the game’s final out in the Giants’ 6-3 loss
to the Reds, said Eddings has previously expressed a desire to end games quickly and reiterated
that notion on Wednesday.


Reds closer Raisel Iglesias got the call on a 3-2 fastball that’s Gameday showed was clearly outside.

Giants slugger Brandon Belt questions umpire's integrity after questionable call ends game

Video of call at,lock_state=final,game_tab=videos,game=530041

ESPN reported:

Belt stepped to the plate with a runner on second base and two outs in the bottom of the ninth inning
at AT&T Park. Facing closer Raisel Iglesias, Belt worked the count full before plate umpire Doug
Eddings called a third strike on a fastball just off the plate to end the game .

Afterward, Belt said there was no question he got cheated on the call and insinuated that
Eddings made it to get a matinee that lasted 2 hours, 41 minutes over with.


Neither post went into great detail about "how far off the plate" the pitch was. The video does suggest it was not a strike. The story was the call-out of the umpire for "ending the game" prematurely.

Also of possible relevance to ending the game prematurely is the case Kenny v. Denbo, CA3, No. 17-2342, which involves themes of plagiarism, intellectual property, Blackboard software, and arbitration.

The short description given by CA3:

Adjunct Professor Robert Kenny substituted for Professor Susan Denbo while she was
on sabbatical. After an arbitration, he was suspended for borrowing her syllabus. Kenny’s
borrowing resulted from an excusable misunderstanding. Only later did evidence come out
that Denbo had passed along that syllabus specifically for the adjunct to use. But the unavailability
of certain evidence at the arbitration does not justify rescinding his settlement.

Of "ending the game prematurely," CA3 wrote of the arbitration:

After Rider’s opening statement, and ten minutes into the Union’s opening, the arbitrator
cut off the Union’s lawyer and held a sidebar conference
. When the Union’s lawyer
returned from that conference, he relayed to Kenny and to the Rider faculty’s Union representative
that the arbitrator “wanted to see a settlement,” and “gave a broad outline” of
the sort of agreement the arbitrator had in mind. DA 277. According to the Union’s lawyer,
the arbitrator felt that any settlement “needed to include [Kenny’s] suspension.” Id.
The Union’s lawyer came back to Kenny with a proposed settlement and presented it
as a fait accompli
. Kenny signed it. As part of the settlement, he apologized in writing to
Denbo and accepted a suspension for the fall of 2012. Neither side admitted wrongdoing.
Since then, Rider has not offered Kenny any teaching assignments. When Kenny applied
for unemployment compensation, Rider told the state authorities that Kenny had been suspended
for misconduct. So his application was denied.

Of plagiarism and intellectual property, CA3 wrote

Denbo sincerely believed that Kenny’s conduct amounted to
plagiarism, so her statement was not knowingly false. And her mistake about Kenny’s permission
does not amount to reckless disregard of the truth. See id. at 777. She did not give
the syllabus directly to him and was not completely unreasonable in believing that passing
it along to Sprotzer did not authorize verbatim copying. That is particularly true because
the Collective Bargaining Agreement recognized syllabi as intellectual property. No reasonable
juror could find otherwise. So the statements are privileged, not libelous

Plagiarism is copying (basically anything) without attribution. Whether or not the the Agreement recognized
syllabi as intellectual property is not relevant to the charge of plagiarism (AND there is no federal/state cause of action
for "plagiarism" AND see below about custom and practice at this school, Rider University).
CA3 did not mention who was the owner/author of the syllabi intellectual property. One might
infer, in context, that the professor owns the intellectual property of the syllabus because of the Agreement, but otherwise one might be
in a "work for hire" context. One might also suspect that there is a lot of copying of syllabi going on.

Of Blackboard, CA3 wrote:

Kenny also visited Rider’s Blackboard website, where faculty post course materials,
and downloaded a copy of the syllabus from Denbo’s web page. Denbo’s Blackboard settings,
which were not the default, let guests access her other course materials as well, including
student resources and assignments. But Kenny did not download or share them. He
tweaked the syllabus’s grading scale, but otherwise kept the readings, sequence, and assignments
verbatim. Then he uploaded the syllabus to the spring 2012 course module


Nonetheless, Denbo was “outraged!!!!!” by all this. DA 86. In a series of emails to
Rider administrators, she accused Kenny of “EXTREME unethical behavior,” fuming that
he had accessed “MY ENTIRE BLACKBOARD!!!” using the guest access permitted by
her Blackboard privacy settings. DA 99. Denbo also fulminated that Kenny’s syllabus “is
IDENTICAL to my syllabus and references all of my Blackboard materials.” Id. In followup
emails, she continued her tirade, deploying such punctuation-peppered interjections as
“UGH!!!!” and “REALLY?????????” DA 102, 105. Even though she conceded that “he
assured me that he had not posted anything yet,” she suggested that Kenny never teach at
Rider again. DA 99-100

Somewhat related to the Rutgers/San Filippo case (but with a different outcome):

Rider acceded to Denbo’s request. For the first time at Rider (as far as we know), an adjunct professor was
disciplined for using a syllabus given to him by his department chair for a course that he
was hired to substitute teach. As the Union grievance officer testified, in his thirty-eight
years at Rider, he had never seen syllabi posted with attribution. And Sprotzer conceded
that he had never heard of any university where adjuncts were given syllabi but needed to
seek further permission to use them. App. 315-16. He also admitted that Rider developed
its unwritten policy against such borrowing only after Kenny’s arbitration.

[The San Filippo case involved 14th Amendment issues. See

Flipping Filippo, Batman, Gunasekera files federal suit against Ohio U./officials

Initially, Kenny's defense related to his access using Blackboard:

As the Union’s letter explained, Kenny had “reasonabl[y] but inaccurate[ly] assum[ed]”
that, because Denbo made her course materials available to guests on Blackboard, she had
given implied permission to use them. DA 61. The Provost rejected these arguments and
sustained the discipline

Of the summary judgment on libel:

The District Court arguably erred in finding
that Denbo’s statements were mere opinion rather than factual. But “[w]e can affirm
the District Court’s grant of summary judgment on any basis supported by the record.”
United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 746, 753 (3d Cir. 2017)

Of the discovery issue, CA3 wrote

The Union
was not allowed to depose witnesses, but it asked for all materials collected during the
Provost’s investigation, including correspondence, emails, and Blackboard records

The interpretation of this was that if emails were not collected, they were not within the scope.
By this logic, the recipient of a discovery request could choose not to collect certain emails during
the investigation, and they would not fall within the scope of discovery.

CA3 wrote of duty to disclose:

But Kenny has produced no evidence that could justify a jury in finding a misrepresentation
here. Not turning over the three emails in question could amount to one only if Rider had
an obligation to do so. And while New Jersey does recognize that “[s]ilence in the face of
a duty to disclose may constitute a fraudulent concealment,” it imposes such a duty only in
limited circumstances. See United Jersey Bank v. Kensey, 704 A.2d 38, 43 (N.J. Super. Ct.
App. Div. 1997). This is not a case involving—at least as between Kenny and his employer—“fiduciary
relationships such as principal and agent.” Id. at 44.

Nor are settlement negotiations the kind of “transactions which in their essential nature,
are intrinsically fiduciary, and necessarily call for perfect good faith and full disclosure.”

Id. (internal quotation marks and alteration omitted). In other circumstances, the New Jersey
courts have declined to find a quasi-fiduciary relationship when the parties act “at armslength,
... in their own interest,” and stand in “essentially adversarial” positions. Id. at 44-
45 (discussing lender-borrower negotiations). All of these qualities are present in a labor
arbitration conducted, like this one, between sophisticated parties represented by counsel.


Professor who punished plagiarists fired over FERPA>

Newark Star-Ledger does Rutgers plagiarism case on 4 Dec 2011

Trademark cancelled for failure to respond in discovery

**See especially

Harsh penalty dealt to student copying from wikipedia

which references the PatentlyO post
Plagiarism Actions

as to text

(3) “failing to consider Dr. Adames’ [own] plagiarism” (he had copied portions
of his syllabus from another professor without attribution);


We may affirm the trial court's judgment after a bench trial on any basis in the record,
regardless of whether the trial court relied on that basis or whether the trial court's reasoning was
correct. Northwestern Memorial Hospital v. Sharif, 2014 IL App (1st) 133008, ¶ 25. We affirm
the trial court's judgment in favor of defendant on plaintiff's breach of contract action, not on the
grounds stated by the court (which were based solely on plaintiff's failure to appeal her dismissal
to the dean of academic affairs and on the lack of proof of damages) but rather on plaintiff's
failure to meet her heavy burden of proving that defendant acted in an arbitrary, capricious, or
bad-faith manner by dismissing her without any discernible rational basis.

concerning Drobetsky v. Chicago School of Prof. Psych.


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