Legal Watch - March 11, 2015
March 11, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
On February 25, adjunct professors across the country held demonstrations, distributed information on a number of campuses, and staged walkouts on some campuses to call attention to their desire for better wages and working conditions. The events were partially coordinated by the Service Employees International Union (SEIU), the lead union in organizing adjuncts in a number of metropolitan areas across the nation. According to business news sources, the idea of a national adjunct day of action originated at San Jose State University in California and spread across the nation via social media.
The SEIU issued a statement claiming that the “SEIU supported and allied activist events in California, Ohio, Massachusetts, North Carolina, New York, Missouri, Florida and Georgia.” Unionized adjunct professors at San Francisco Art Institute followed their students out of the classroom and conducted a “teach out.” Part-time professors at Seattle University also walked off their jobs in a one-hour rally and march.
The SEIU now claims to represent 23,000 non-tenure-track faculty members across the country and continues to be active in its attempts to organize both adjunct faculty and full-time professors, concentrating its action in 11 metropolitan areas across the country. Among its recent successes is the organization of adjuncts at Bentley University in Boston, who had turned down representation a year ago but recently voted in February 108 to 42 to have the SEIU as their collective bargaining representative. Separately, full-time lecturers at Tufts University in Boston voted 52 to 25 in favor of SEIU representation, joining their part-time faculty colleagues who had already selected the SEIU as their bargaining representative. Finally, in one of the bigger adjunct elections, part-time faculty at Boston University voted 319 to 158 in favor of SEIU representation of the adjunct unit of 799 professors. The SEIU now claims to represent 2,600 adjunct professors at four colleges and universities in the Boston area.
California’s new workplace anti-bullying law, which went into effect at the beginning of the year, may be a precursor for other states enacting similar statutes. The law requires that all California employers with 50 or more employees that already are required to perform sexual harassment training to their employees add new training for supervisors to prevent “abusive conduct” in the workplace. The new law mandates training of supervisors only and does not create a private right of action.
Many commentators believe that a private right of action may be added by the legislature later, and/or that enterprising plaintiff lawyers may argue that the state’s public policy now prohibits “abusive conduct” in the workplace, and therefore “bullying” and “abusive conduct” in the workplace should be added as a public policy exception to employment-at-will within the state.
Under the statute, “abusive conduct” is defined as conduct with malice that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The conduct may include verbal abuse, such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of a person’s work performance.
The U.S. Court of Appeals for the Seventh Circuit recently reversed a trial court decision dismissing the complaint of a tenured school psychologist who had been fired after publicly criticizing a local principal’s cuts in individualized instruction for special education students. The appeals court ruled that the plaintiff should be given a trial over his allegations, as he raised a viable First Amendment claim against the school district, the principal and the local school board because a jury could reasonably conclude that the plaintiff’s protected speech was the real motivation for his discharge (Koehn v. Tobias (2015 BL 40885 7th Cir., No. 14-3039 unpublished 2/18/15)).
During the plaintiff’s five years of employment as a tenured psychologist, he had only one performance review, when he was supposed to have performance reviews done every other year. After he began criticizing the cuts to the special education program and stated that they may have violated applicable state and federal law, he was warned about insubordination. He made a similar complaint via e-mail to an outside consultant of the state board of education and copied the local school representative and again complained at a staff meeting, which was attended by the board of education consultant. The school board found no impropriety in the cuts to the special education program.
The plaintiff was ultimately terminated because of concerns over his access to confidential student files and “inappropriate communications designed to criticize the principal’s decisions.” The appeals court in ruling that the plaintiff was entitled to a trial of his First Amendment claims noted that the school district’s “sudden preoccupation with his job performance, many months after the evaluation was due, is ‘too convenient’ to allow summary judgment in favor of the school board.” The court also concluded that a jury could find that the school board was ready to allow the plaintiff’s deficiencies to “fall into the cracks” until he began criticizing the principal’s decisions.
The Seventh Circuit Court of Appeals has rejected a plaintiff’s Family and Medical Leave Act (FMLA) and race retaliation claims, affirming the trial court’s decision dismissing the case as a result of the defendant’s motion for summary judgment. The plaintiff claimed he was not appointed acting department chair in retaliation for his taking FMLA leave and because he was black. His claims filed under the FMLA and the Civil Right Act of 1866 were dismissed (Carter v. Chicago State University (7th Cir., no., 13-3376, 2/11/15)).
The professor claimed that the temporal proximity of his taking FMLA leave and the appointment of the acting department chair “raised a suspicion of discriminatory intent.” The trial court, with approval of the appeals court, rejected this claim, holding that “We do not find a span of seven months suspicious.”
Regarding the race discrimination claim, the court observed that the plaintiff provided no direct evidence of discrimination. Moreover, the court noted that the plaintiff provided no “indirect” evidence of discrimination along the lines that the person appointed acting department chair was not less qualified than him. Finally, the court concluded that the record contains evidence that the plaintiff was actually less qualified than the person named acting department chair because the plaintiff had refused to teach several classes, had student complaints about the quality of his teaching from the classes he taught, and was removed from the department chair position in the past.