The Higher Ed Workplace Blog

HR and the Courts: Recent Rulings That Could Impact the Higher Ed Workplace

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:

Court Finds Plaintiff’s Failure to Follow Supervisor’s Direction Not Protected by the First Amendment

The United States Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin and Indiana) recently ruled that a public employee’s good-faith and well-meaning decision to refuse his supervisor’s direction is not protected by the First Amendment, and therefore his lawsuit alleging retaliation for asserting First Amendment rights was properly dismissed (Davis v. City of Chicago (2018 BL 162182, 7th Cir., No. 16-1430, 5/8/18)).

The plaintiff was an investigator and supervisor with the Chicago Civilian Office of Police Accountability. He was terminated after refusing to follow his supervisor’s direction to file a report which he believed was inaccurate and misleading. The court of appeals ruled that his refusal was that of an employee and not a private citizen, and therefore he had no First Amendment rights attached to his actions. The court went on to conclude that just because an employee has a good reason for refusing to follow a supervisor’s directions does not mean the employee’s actions are protected by the First Amendment.

Community College President Can Proceed With Wrongful Termination, Defamation and Employment Contract Violation Case as Court Rejects Board of Trustees’ Argument That a Preceeding Board Cannot Agree to a President’s Term Beyond Its Own Term

The Seventh Circuit Court of Appeals has affirmed the right of a fired community college president to sue the college’s board of trustees for wrongful termination and violation of his employment contract terms (Breuder v. Board of Trustees of Community College District No. 502 (2018 BL 134357, 7th Cir., No. 17-1577, 4/17/18)). The president was hired in 2008 under a contract that extended through 2019, but was terminated in 2015 after new members joined the college’s board of trustees.

The new board, relying upon Illinois Supreme Court precedent from the 19th century, argued that the president’s contract was unenforceable because it exceeded the term of the board that signed the deal. The court of appeals rejected the argument, holding that the Illinois Supreme Court case had been reversed by interceding state legislation that permitted college boards to set tenure policies and rules for professors and administrative staff on their own.

The outdated state Supreme Court decision would have precluded a board from making employment contracts that exceed two years. The appeals court held that to adopt the argument of the board of trustees would put Illinois community colleges at a major disadvantage to community colleges in other states that have no comparable restrictions. The court concluded that such a rule would make it difficult to attract significant talent to the state. The appeals court ruled that the former president’s wrongful termination and defamation claims should move forward, as he was terminated without a constitutionally-mandated due process hearing and was allegedly defamed as part of the process.

University Research Director Loses First Amendment Discharge Case, Court Rejects Protection of His Public Comments Critical of Research Center’s Budget, Finances and Need for More Space

The U.S. Court of Appeals for the Eighth Circuit (covering North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas) affirmed the dismissal of a former University of North Dakota research director’s First Amendment retaliatory discharge case by the trial court, holding that the university honored the research director’s due process rights to a hearing contesting his discharge (Groenwold v. Kelley (2018 BL 143529, 8th Cir., No. 16-4019, dismissal affirmed, 4/24/18)).

The court also held that the research director’s public comments about the research center’s finances, budget and lack of space were not a matter of public concern and not protected by the First Amendment. The court concluded that just because the comments were not about his personal finances or other personal matters, that was not enough to make them a matter of public concern. Finally, the court recognized that the university had provided the research director with a pre-discharge hearing and appeal rights and concluded that his due process rights were honored, and therefore the discharge should stand.

Court Finds Employee Was Discharged Because of Temper, Not Ethnicity or National Origin, and Rejects Allegations That His Supervisor Called Him a “Hot-Headed Mexican” as Proof of National Origin Discrimination

A federal district court recently ruled that a parts manager who was called a “hot-headed Mexican” by his supervisor did not state a Title VII claim for ethnic or national origin discrimination following his discharge after an incident at a training session where he reacted aggressively and threatened a company trainer (Gonzalez v. Premier Quality Imports (2018 BL 139242, ED La., 17-6387, 4/19/18)).

The court granted summary judgment to the employer, who cited a pattern of behavior in which the employee exhibited aggressive behavior and a temper in dealing with other employees. After having negative run-ins with other employees, the plaintiff’s supervisor called him a “hot-headed Mexican.” When he told the supervisor that he was Cuban and not Mexican, the supervisor called him a “hot-headed Cuban.” The court ruled that he was clearly discharged because of the incident during the training session and not because of his ethnicity or national origin.

California to Be First State to Mandate Women on Boards

Proposed legislation being considered in the California legislature would require that California-based companies with all male boards of directors add women. If the law is passed, California would become the first state in the U.S. with such a requirement for publicly-held companies. Countries such as Norway, France and Germany already have national laws requiring gender diversity quotas to bring more women into the boardroom. While the law would not apply to nonprofits, it is likely that if passed it will be the beginning of a legislative trend that may also spread to nonprofit boards.

 

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