The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Lawful Medical Marijuana Patient Sues in Federal Court Over Revoked Job Offer, Claiming Disability Discrimination Under the New York Human Rights Law

A certified medical marijuana patient sued a company in federal district court in New York under the New York Human Rights statute and the New York Compassionate Care Act, alleging that a company representative rejected his claim that he had a lawful prescription for medical marijuana and revoked his job offer (Scholl v. Compass Group USA (S.D.N.Y., No. 19-6685, complaint 7/17/19)).

Due to chronic back pain resulting from a back injury, the plaintiff was a certified patient under the New York Compassionate Care Act and was lawfully prescribed medical marijuana. The plaintiff informed his prospective employer during his job interview that he was taking medical marijuana, and the hiring manager told him that it would not be a problem as long as he had a prescription. The plaintiff accepted the job offer but was later told by a company representative when his drug test came back positive that medical marijuana is not a prescribed medicine and rejected his claim that he had a prescription under the New York law that certified him as a medical marijuana patient.

The plaintiff sued the company, alleging disability discrimination and also that the company refused to engage in any discussion of accommodation for his disability, including the use of other medication during working hours or why being a certified medical marijuana user posed an undue burden to the employer. The plaintiff is seeking all remedies available as a result of his allegations of an unlawful employment action, including attorney fees, job reinstatement, lost wages and benefits, and compensatory and punitive damages.

Professor Fired for Producing Videos Critical of University and Loses Wrongful Discharge Case Alleging That the University Failed to Follow Its Disciplinary Procedures

A former university professor was found ineligible for job reinstatement following his termination which resulted from his producing and airing of critical and mocking videos of university administration and the university president (Fagal v. Marywood University (3rd Cir., No. 18-2174, unpublished, 10/8/19)).

The professor argued that the university did not follow the terms of his employment contract, which incorporated the university disciplinary procedure. The professor in question had planned a speech on campus to be delivered by a controversial speaker and posted flyers on campus advertising the speaker with the university’s approval. Some of his flyers were taken down. In response, he made and aired two videos mocking the university and its president. He was called in by the president and suspended for his conduct. The following day, the president recommended his termination. The professor requested a review by the faculty, which he received, and the majority of the faculty committee reviewing the matter upheld the decision to terminate him.

The professor sued the university, claiming that it did not follow the multi-step disciplinary procedure in the university’s policies. The university countered this by explaining there were two independent procedures: a multi-step procedure for “personal and professional problems” and another for “suspension and/or termination for serious violations of professional responsibility.” The university argued that it followed the latter procedure and that it was not required to use the former procedure.

The court agreed with the university, concluding that the multi-step procedure was permissive and not mandatory and that the university followed the procedure which the court agreed was applicable. The court of appeals affirmed, holding that the contract through the procedures was ambiguous and that the trial court had the authority to resolve the ambiguity. The appeals court must affirm, unless it concludes that the trial court was clearly wrong in its interpretation, which the appeals court did not conclude.

ADA Does Not Cover Bias Claims of Discrimination Against Possible Future Disabilities Not Currently Being Experienced

The U.S. Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) recently held that the Americans with Disabilities Act (ADA) does not cover discrimination allegations against disability conditions not currently being experienced by the complainant but that may occur in the future (Shell v. Burlington Northern/Santa Fe Railroad Company (7th Cir. No. 19-1030, 10/29/19)). This case was filed by a plaintiff who alleged ADA discrimination based on his disability of obesity. The court ruled against him, holding that his obesity, which did not result from any physiological condition, was not a covered disability under the ADA.

The plaintiff refiled his complaint, alleging that he was discriminated against because he was perceived as disabled due to health-related risks associated with obesity that could occur in the future, such as diabetes, heart disease and sleep apnea, even though he was not experiencing them at that time. The employer countered that it had no idea whether or not the plaintiff would ever contract these disabilities and that it refused to hire him simply because its chief medical officer concluded that the plaintiff was not medically qualified for the rigorous and safety-sensitive position due to his body mass index of 45.7.

The court sided with the employer, holding that the evidence is clear that it did not believe that the plaintiff had any of the feared impairments when it made its decision not to hire him, therefore no action could be taken under the ADA.

Professors at a Louisiana University Who Lost Tenure Because of a Unilateral Decision Without Due Process to Furlough Them Following Hurricane Katrina Are Reinstated by State Court With Back Wages and Renewed Tenure

A group of three former tenured professors at Louisiana Southern University and A&M College lost tenure as a result of the university’s decision to act in an emergency situation following the devastation of Hurricane Katrina and eliminate full-time faculty at its New Orleans campus either through voluntary resignation or furlough. The three professors sued, arguing that they had been denied their property rights to tenure without any due process, and the court agreed. The three professors received a state court judgement totaling $422,000 in lost wages and reinstatement to their tenured positions (Kaltenbaugh v. Board of Supervisors, S. University at Baton Rouge (2019 BL 408521, La, Ct. App. 4th Cir., No. 2018-CA-1085, 10/24/10)).

Manager’s Retaliation Claim Fails Following His Termination for Inappropriate Conduct Upon His Return to Work From Medical Leave

A manager who was fired shortly after his return to work from medical leave for cancer treatment cannot prove pretext and retaliation where the employer showed independent reasons corroborated through an internal investigation and actual depositions of subordinate employees. The discharge resulted solely from the manager’s mistreatment of subordinates and was unrelated to his age or decision to take medical leave to treat his cancer (Williams v. Graphic Packaging International (2019 BL 418252, 6th Cir., 10/31/19)).

The court concluded that the plaintiff showed no proof that any other similarly situated manger was treated better than he was for similar employee mistreatment conduct. The court concluded that the plaintiff’s conduct clearly violated the employer’s core values and policies and that he showed no evidence that the termination decision was related in any way to his age or health.