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:

Federal Court Dismisses Medical Resident’s Claim Under “Intercorporate Immunity Doctrine” That States Discussions of Student Performance by Faculty Members and University Officials Are Not Subject to Defamation Claims

A former medical resident sued St. Louis University for defamation following her dismissal for cause. The matter and reasons for the dismissal were discussed internally at the university among medical faculty as part of coming to the discharge decision. The plaintiff allegedly told a professor that she needed to skip a lecture to prepare for a presentation, and then allegedly went shopping with her husband. The professor reported the incident to the residency program director and the clinical competence committee. The plaintiff was ultimately dismissed, and she sued the university for defamation and other counts related to her dismissal.

A federal district court judge in Missouri dismissed the defamation action, holding that the allegedly libelous statements fell within the “intercorporate immunity doctrine,” which is part of Missouri State law, and therefore are not actionable. The judge concluded that under Missouri law, communications between corporate officers in the regular course of business are not publications to third parties, which are subject to defamation and libel actions (Rice v. St. Louis University (2020 BL 208100, E. D. Mo., No. 4:19-cv-3166, 6/4/20)).

The judge held that universities are corporations for purposes of the doctrine and that statements made by faculty members to each other or to university officials concerning a student’s performance are the legal equivalent of “speaking to one’s self.” Therefore, publication to a third party, which is an essential element of a defamation claim, are not met by such communications.

Whistleblower and Retaliatory Discharge Lawsuits Concerning Workplace Safety and Protocols for PPE in the Wake of the COVID-19 Pandemic Begin

What is likely to be the precursor of many other whistleblower and retaliatory discharge lawsuits in the wake of the COVID-19 pandemic have begun. Recently, an assistant nursing home director in Illinois was discharged following her objection and refusal to participate for safety reasons with regard to a directive to outfit all staff with personal protective equipment (PPE) masks without proper facial-mask-fit testing or training. The plaintiff was allegedly discharged one day after she raised such objections.

The plaintiff alleged that in response to her objections, she was told that the fit-testing was not necessary because the PPE masks were only given to staff “to make them feel better.” The nursing home being sued has about 250 residents and 500 or so employees, contractors and volunteers on premises daily. The lawsuit alleged a violation of the Illinois Nursing Home Care Act and retaliatory discharge (Hinich V. Norwood Crossing (Ill. Cir. Ct. No. 2020L005539, 5/20/20)).

Court Finds University’s Sexual Harassment Investigation and Pre-Termination Procedure — Including Accused Professor’s Ability to Respond, Be Represented by Counsel, and Appeal His Termination — Satisfied All Due-Process Requirements

A former anthropology professor’s federal lawsuit, claiming he was denied due process and fired after a sexual harassment investigation by the University of New Mexico, which he claimed was biased against males and Hispanics, was dismissed as without merit.

The court concluded that the professor offered no proof that the university or its officials exhibited any bias against males or Hispanics. Further, the court concluded that the plaintiff was given ample opportunity to review the charges against him and present his side of the story before his termination. The judge concluded that the university accepted all of the professor’s evidence and reviewed his side of the story, but concluded that termination was appropriate (Valencia v. Board of Regents (2020 BL 181423, D.N.M. No. 1:17-cv-00509, 5/14/20)).

The court summarized that the plaintiff was terminated after an investigation and appeals process that spanned 21 months. The professor was given notice of the complaint and then presented with formal charges, including all evidence uncovered during the investigation. He was given the opportunity to respond to the evidence, present his own evidence, provide additional evidence and appeal the termination decision. His attorney also met twice with university investigators.

The court concluded that the university’s procedure afforded the professor all due-process rights to which he was entitled.

Retaliatory Discharge Claim Brought by University Football Staffer Dismissed Due to Misrepresentation and Harassment of Defendants

A federal district court judge in Michigan recently took the unusual action of not only dismissing a former Michigan State University (MSU) football recruiting coordinator’s lawsuit against the university’s former president, former head football coach and former athletic director, but also sanctioned the plaintiff’s attorneys by removing them from the case because of misrepresentation and harassment of defendants (Blackwell v. Simon (2020 BL 188889, W.D. Mich., No. 18-cv-1261, 5/20/20)).

The plaintiff was discharged after he refused to answer questions raised by MSU police and MSU investigators who were investigating sexual harassment allegations against members of the football team. He asserted that he was exercising his Fifth Amendment right to remain silent.

The judge concluded that dismissal was appropriate, due to the plaintiff’s attorneys engaging in misrepresentation and “a pattern of seeking discovery on issues … that were unrelated to the plaintiff’s claim …” The plaintiff’s counsel attempted to seek discovery on alleged NCAA recruitment and other violations, which were wholly unrelated to the plaintiff’s claim before the court. The judge concluded that the attorney conduct amounted to harassment of the individual defendants.

U.S. Court of Appeals Rejects AFL-CIO Lawsuit Demanding OSHA Issue Temporary Workplace Safety Standards Applicable to the Workplace Spread of Coronavirus COVID-19

AFL-CIO, the nation’s largest group of labor unions (representing 12 million workers), has filed an emergency petition with the U.S. Court of Appeals for the D.C. Circuit demanding that the Occupational Safety and Health Administration (OSHA) issue temporary workplace safety standards addressing the potential workplace spread of coronavirus COVID-19 (In re. AFL-CIO (D.C. Cir., No. 19-1158, 5/18/20)). On June 11, the D.C. Circuit rejected the AFL-CIO’s lawsuit, holding that OSHA’s existing standards and regulatory tools are sufficient and that no emergency temporary standard is necessary.

OSHA’s leadership prior to the lawsuit had resisted calls from labor unions and others to issue temporary workplace safety standards directly related to the potential spread of COVID-19.U.S. Secretary of Labor Eugene Scalia has defended OSHA’s handling of the situation by saying that it is committed to workplace safety during the COVID-19 pandemic and will bring appropriate enforcement action under OSHA’s general duty clause when it deems enforcement to be an issue.

The AFL-CIO’s position is that more is needed to protect workers from workplace spread of COVID-19. OHSA commented on the court decision, stating that it will continue to enforce the law and offer guidance on how to keep workplaces safe.

For the latest labor and employment law developments, check out the Workplace Initiatives and Strategies for Employers (WISE) blog, managed by Saul Ewing Arnstein and Lehr, and sign up for free alerts.


The CUPA-HR office will be closed Fridays through August 19.