Legal Watch - November 18, 2015
November 18, 2015

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

College Instructor Awarded Nearly $5 Million in Reverse Discrimination Lawsuit

A Missouri state court jury recently awarded a former white college instructor a total verdict of $4.85 million in damages as a result of her 2010 discharge which she claimed was a result of reverse discrimination and her college’s dean wanting to make the education college’s faculty “blacker.” The plaintiff was awarded $1.35 million in compensatory damages and $3.5 million in punitive damages (Wilkens v. Harris-Stowe State University (Mo. Cir. Ct. No. 1222-CC09117, verdict, 10/15/15)). The case was brought under the Missouri State human rights statute.

The university claimed that the instructor, who had worked there for nine years, was terminated for budgetary reasons. The plaintiff presented evidence showing that she was replaced by an African American instructor who was given a $15,000 higher salary. The plaintiff also presented evidence and testimony from a “whistleblower” instructor, who was black. The whistleblower stated that the dean wanted to “get rid of Caucasian instructors.” The whistleblower claimed to have complained of this conduct to the university’s administration a year before the layoff and was told by the administration not to press such complaints, lest she jeopardize her own chances of obtaining tenure.

The judge issued an adverse ruling against the university as a result of messages from the dean’s e-mail account being wiped from her computer’s hard drive and thus not available to the plaintiff’s counsel pursuant to a valid motion to compel evidence. This allowed the plaintiff’s counsel to argue to the jury, with court approval, that the dean’s e-mails would show that the dean wanted to make the college’s faculty “blacker.” The university argued unsuccessfully to the jury that six of the nine people fired during the summer of 2010 were black, which showed that the firings were not discriminatory.

Appeals Court Revives College Instructor’s Breach of Contract Claim Based on Denial of Disciplinary Hearing and Appeal Before Discharge

The United States Court of Appeals for the Second Circuit recently reversed a trial court decision dismissing an NYU nursing instructor’s breach of contract claim. The plaintiff, who had been hired as a non-tenured clinical instructor for a “12-month-per-year position” with a stated annual salary of $116,000, was terminated after two months of employment after an associate dean reported that someone had forged the dean’s signature on a credit card application she had made. The court of appeals stated that the case should not have been dismissed and remanded it back to the trial court to determine whether the plaintiff had been denied rights stated in the NYU employee handbook (Langenkamp v. Olson (2015 BL 339100, 2nd Cir. No. 14-3861, summary order, 10/15/15)).

The plaintiff argued that the NYU employee handbook granted her the right to a disciplinary hearing before termination and the right to appeal an adverse decision to the chancellor. She argued that she had not been granted any of these rights before the university terminated her employment. The university argued that she had not relied on the employee handbook when she accepted her employment. The court rejected that argument, stating that it appeared that the instructor relocated to New York and signed a 12-month lease in reliance on the university’s job offer, which allegedly referred to the employee handbook.

University Counseling Center Psychologists, Critical of Director, Lose First Amendment Termination, Retaliation Case

Five former employees (all psychologists) at the Georgia State University Counseling Center who were terminated as a result of the university’s decision to outsource most of their services (which came shortly after the employees’ extensive written criticism of the Counseling Center’s director) lost their First Amendment claim of retaliatory discharge. The U.S. Court of Appeals for the Eleventh Circuit affirmed the federal trial court’s dismissal of the case, holding that the former employees’ First Amendment claim was based on matters of personal interest that related to their jobs, as opposed to an independent matter of public concern (Alves v. Board of Regents of the University System of Georgia (2015 BL355570), 11th Cir. No. 14-14149, 10/29/15)).

The five plaintiffs submitted a written memorandum to the Counseling Center’s director (their boss) and the director’s supervisor criticizing the director’s leadership and management, which they concluded “created an unstable work environment” and prevented the staff from being effective in their work. They also complained that the director treated “staff of color” less favorably than she treated white staff. The university investigated the complaints and concluded that they were without merit and that the five employees had “negative attitudes” due to a desire to run the center on a collaborative model.

A week after the university rejected the complaints of the five employees, the director made the decision to lay off all the staff psychologists and outsource the services for budgetary reasons. All but one of the laid-off psychologists had signed the memorandum critical of the director. The five psychologists who had signed the memo alleged that they were fired in retaliation for complaining about the program and the program’s leadership, which was protected speech under the First Amendment, as it concerned a matter of public concern. The university argued that the speech was not protected by the First Amendment, as it related to “ordinary job duties” and was an internal complaint about the management style of the center’s director.

The court of appeals agreed with the university, holding that while the memorandum made some “vague and sweeping references” to matters of public concern, including student wellbeing and the quality of client care, the majority of the memorandum addressed the employees’ personal grievances with their work supervisor. As such, it was not protected First Amendment speech.

Court Finds University’s Reason for Not Renewing Professor’s Contract — Her Rudeness — Not a Pretext for Sex, National Origin Discrimination

A Taiwanese professor who taught Chinese at the City University of New York had her sex and national origin discrimination claims brought under Title VII and the New York Human Rights Act dismissed, as the court concluded that she produced no evidence that the university’s stated reason for contract non-renewal — rudeness in her interaction with a student and other professors — was a pretext for discrimination (Chen v. City University of New York (2015 BL 353856, 2nd Cir. No. 14-1469, 10/28/15)).

The professor claimed that the university refused to renew her year-to-year contract because of her sex and/or national origin. The university claimed that her contract was not renewed because of her treatment of a student and other incidents involving complaints by other professors regarding her “over-aggressiveness and lack of tact.”

The professor had taught a student in a previous semester who had made her uncomfortable, presumably using too much of her office-hour time and other things. She heard that the student was going to reenroll in one of her classes the next semester. She then met with the student and one of his current professors and presented the student with a list of rules for enrolling in her courses in the future, including: (1) using her office hours a maximum of five to 10 minutes a week; (2) no blocking doorways of classrooms or offices; and (3) keeping an appropriate distance from professors and classmates.

When the professor discussed the incident with a university staff member who counsels on how to deal with difficult students, the staff member concluded that the professor “showed no concern about the student” and refused to accept any responsibility for her own actions, which included limiting availability to students during her regular office hours.

The court dismissed the complaint, concluding that the plaintiff presented no evidence to show that the university’s proffered reasons for contract non-renewal, her rudeness, was a pretext for sex or national origin discrimination.

Labor Round-Up: SEIU Continues Organization of Professors Across the Nation, NLRB to Revisit Issue of Union Representation of Grad Assistants

The Service Employees International Union (SEIU) recently won an election of 574 adjunct faculty at St. Louis Community College to represent the faculty unit in collective bargaining with the college. The adjunct faculty voted 188 to 15 in favor of SEIU representation in an election agreed to by the college and the union and conducted by a third-party vendor.

On the private-sector front, two different SEIU locals have filed petitions with the National Labor Relations Board (NLRB) to represent adjunct faculty at Brandeis University and University of Chicago.

And in other labor-related news, the NLRB has agreed to review requests by affiliates of the United Auto Workers (UAW) union to reconsider and review its decision in Brown University to decline union petitions to represent graduate students on the grounds that they are students and not employees. The NLRB recently decided to review petitions filed separately by UAW affiliates to represent graduate research and teaching assistants at Columbia University (NLRB No. 02 RC 143012) and The New School (NLRB No. 02 RC 143009).