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  • Date:

    U.S. Dep.’t of Labor OIRA Filing (July 12, 2023)

    U.S. Department of Labor filing with the Office of Information and Regulatory Affairs (OIRA).  Through this action pursuant to Executive Order 12866, the Department shared with OIRA its proposed rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.  OIRA has 90 days to conduct a cost-benefit analysis before returning the proposed rule to the Department for publication in the Federal Register.  

    Topics:

    Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees

  • Date:

    Lee v. Yale Univ. (2nd Cir. June 20, 2023)

    Summary Order affirming dismissal. Plaintiff, a forensic psychologist and former voluntary Assistant Clinical Professor in the Law and Psychiatry Division of the Yale School of Medicine, brought contract and state law claims against the University, alleging it violated her academic freedom when it declined to renew her appointment citing ethical concerns over her public statements diagnosing political figures with a “shared psychosis.” In affirming dismissal, the Second Circuit held that her contract claims failed because she had not adequately alleged a promise to renew her appointment even in the face of such public statements. It further held that her claim under a state statute establishing liability for an employer who disciplines or discharges an employee for exercising First Amendment rights failed because she had not adequately alleged remuneration.

    Topics:

    Academic Performance and Misconduct | Employee Discipline & Due Process | Faculty & Staff | Students

  • Date:

    Kashdan v. George Mason Univ. (4th Cir. June 13, 2023)

    Opinion affirming dismissal. Plaintiff, a tenured professor of psychology specializing in human sexuality studies at George Mason University (GMU), brought Title IX, due process, and First Amendment claims against GMU and multiple officials after he was disciplined for creating a hostile educational environment for four female graduate students. The Fourth Circuit affirmed dismissal of his Title IX claims, finding that Department of Education pressure to enforce Title IX was insufficient to show anti-male bias, and his allegation that GMU does not investigate female professors for similar conduct was conclusory. It affirmed dismissal of his due process claim, finding that GMU’s temporary disciplinary sanctions limiting his teaching and clinical privileges did not amount to a significant demotion and did not exclude him from his trade or calling. It affirmed dismissal of his First Amendment claim, finding that his personal stories and questions about his students’ sex lives were speech outside of his curricula and topics of purely personal interest.  

    Topics:

    Constitutional Issues | Employee Sexual Misconduct | Faculty & Staff | First Amendment & Free Speech

  • Date:

    AlSayyad v. Regents of the Univ. of Cal. (Cal. App. June 7, 2023)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former professor at the University of California, Berkeley, brought discrimination claims against the University after he was suspended for three years for sexually harassing a graduate student. The faculty Privilege and Tenure Committee recommended a one-year suspension and sensitivity training, finding a “momentary overstep” when he touched the student’s leg. The Chancellor, however, imposed a three-year suspension, finding instead a pattern of harassment and unprofessional behavior. Affirming summary judgment in favor of the University, the California Court of Appeals held that the Chancellor presented a legitimate nondiscriminatory reason for the more severe sanction and that plaintiff presented no evidence showing that this reason was pretextual. 

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Race and National Origin Discrimination | Sex Discrimination | Sexual Misconduct

  • Date:

    Semelka v. The Univ. of N.C. (N.C. App. June 6, 2023)

    Opinion reversing denial of Defendants’ Motion to Dismiss. Plaintiff, a former tenured professor of radiology at the University of North Carolina at Chapel Hill, brought retaliation claims against the University and multiple officials under the North Carolina Whistleblower Act after he was terminated for false representations in reimbursement requests. In 2016, plaintiff complained that, among other things, his Department Chair ignored safety concerns. When a University investigation found no wrongdoing, plaintiff hired counsel to prepare for litigation. He then requested his Department reimburse him for $30,000 in legal fees. An audit determined that the legal services at issue were primarily personal in nature, as were nine trips he previously claimed as business travel. In prior litigation, a court held that plaintiff’s termination for misconduct was supported by substantial evidence and that the decision was properly made under the University’s tenure policy. Because the prior case found that the University’s audit was motivated by the unusual nature of plaintiff’s reimbursement request, the Court of Appeals of North Carolina held that plaintiff is precluded here from relitigating the issue of the alleged causal connection between his safety reports and his subsequent termination. 

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

  • Date:

    Pogorzelska v. VanderCook Coll. of Music (N.D. Ill. June 5, 2023)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at VanderCook College of Music, brought Title IX claims against the College, alleging that it exhibited deliberate indifference to her reports of off-campus sexual assault and subsequent on-campus harassment and that it retaliated against her for making the reports. The court permitted plaintiff to proceed on her deliberate indifference claim as to the assault, finding that a jury could conclude from email correspondence and disputed statements in the record that College investigators believed the respondent had committed the assault but unreasonably imposed limited sanctions in hopes of promoting a “healing process.” It also permitted her to proceed on her deliberate indifference claim as to the subsequent harassment, finding triable issues of fact as to (1) whether two incidents constituted harassment and (2) whether the College’s decision not to adjust or further enforce its no-contact order was clearly unreasonable. It granted summary judgment to the College, however, on plaintiff’s retaliation claims, finding insufficient evidence of materially adverse actions that were caused by plaintiff’s reports. 

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sexual Misconduct | Students | Title IX & Student Sexual Misconduct

  • Date:

    Foley v. Drexel Univ. (E.D. Pa. June 1, 2023)

    Memorandum granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of philosophy at Drexel University, brought hostile work environment and retaliation claims against the University and the chair of the Department of English and Philosophy alleging “a plethora of acts that she contends show discrimination based on sex and retaliation for the majority of her time at Drexel, between 2009 and 2022.” The court deemed some of plaintiff’s claims time-barred, to the extent that they were discrete and actionable events that occurred outside of the limitations period. It permitted plaintiff to proceed under the theory of continuing violation, however, as to allegations that “do not appear to be actionable, discrete discriminatory acts,” such as “sabotage” of dinners with visiting scholars, a requirement that she seek permission from a male adjunct professor to teach a course, and disagreements about administrative matters.  

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Glacier Nw., Inc. v. Int’l Brotherhood of Teamsters Local Union No. 174 (U.S. June 1, 2023)

    Opinion reversing the judgment of the Washington Supreme Court and remanding. Glacier Northwest, Inc. is a concrete company. On August 11, 2017, after multiple batches of concrete were loaded into ready-mix trucks and out for delivery, the Union representing Glacier’s truck drivers called a strike. At least 16 trucks returned to Glacier’s facility, forcing Glacier to dump the concrete to prevent it from hardening in the trucks. Glacier sued the Union for common law conversion and trespass to chattels, alleging that the Union intentionally destroyed the concrete. The trial court granted the Union’s Motion to Dismiss, finding the tort claims preempted by the National Labor Relations Act, and the Washington Supreme Court ultimately upheld. In reversing this judgment, the U.S. Supreme Court applied its Garmon preemption doctrine, which requires a party asserting preemption (1) to advance an interpretation of the NLRA that is not contrary to its language or the precedents of the courts or the NLRB and (2) to assert enough evidence to support a finding that the NLRA “arguably protects” the conduct at issue. Finding that “the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk,” the Court held that the NLRA does not “arguably protect” the Union’s conduct and, accordingly, that the NLRA does not preempt Glacier’s tort claims. 

    Topics:

    Collective Bargaining | Faculty & Staff | Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    NLRB GC Memo re: Non-Compete Agreements that Violate the NLRA (May 30, 2023)

    Memorandum from the General Counsel of the National Labor Relations Board (NLRB) re: Non-Compete Agreements that Violate the National Labor Relations Act. In the memo, the NLRB General Counsel outlines ways in which non-compete agreements may chill employees from engaging in protected activity and may, therefore, violate Section 8(a)(1) of the National Labor Relations Act. It provides that non-compete agreements may be justified in limited circumstances, such as when narrowly tailored to protect an employer’s legitimate business interest in protecting proprietary or trade secret information. 

    Topics:

    Collective Bargaining | Faculty & Staff

  • Date:

    Ma v. Cincinnati Children’s Hosp. Med. Ctr. (Ohio App. May 24, 2023)

    Opinion reversing summary judgment in favor of the Hospital and remanding. Plaintiff, a former biomedical researcher and tenured professor at Cincinnati Children’s Hospital Medical Center (Children’s Hospital) and the University of Cincinnati, brought contract claims against Children’s Hospital after he was terminated for failing to meet expectations related to external funding. In reversing summary judgment in favor of Children’s Hospital, the Court of Appeals of Ohio held that because plaintiff’s contract with Children’s Hospital did not specify whether failure to secure funding was “just cause” for termination, the question could not be decided as a matter of law.

    Topics:

    Faculty & Staff | Tenure

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