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  • Date:

    Serv. Emps. Int’l Union, Local 73 v. Bd. of Trs. of the Univ. of Ill. (C.D. Ill. May 22, 2023)

    Order & Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, the union representing groups of service employees at the University of Illinois Urbana-Champaign, brought a First Amendment challenge after the University’s Board Secretary denied their requests to speak during a public comment period of an upcoming Board meeting. The Secretary cited a rule that the Board does not hear presentations on issues under negotiation in the collective bargaining process. In denying the Board’s Motion to Dismiss, the court first held that the public comment period was a limited public forum, noting that requests to comment must be approved by the Board Secretary and that comments are limited to topics under the Board’s jurisdiction. It then held that though the rule was neutral as to viewpoint, it was not reasonable in light of the Board’s asserted purpose of avoiding unauthorized agreements outside of the collective bargaining process that would violate state labor law. In this, it noted both that it would be hard to forge an unauthorized agreement in an open meeting and that the danger is greater in direct email correspondence, which the Board had suggested as an alternative way for the public to address the Trustees. The court, however, dismissed plaintiff’s state Open Meetings Act challenge for lack of jurisdiction. 

    Topics:

    Collective Bargaining | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Governance

  • Date:

    Sampay v. Am. Univ. (D.C. May 18, 2023)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former employee in the Office of Information Technology at American University, alleged retaliation after she was placed on a performance improvement plan (PIP) and then terminated for repeated performance issues. In affirming summary judgment in favor of the University, the D.C. Circuit held that plaintiff was unable to establish pretext, noting that although her immediate supervisor knew of her complaints to the University’s HR office about hostile treatment, she was unable to demonstrate that his supervisor, who monitored her PIP and ultimately decided on her termination, was also aware of the complaints.  

    Topics:

    Faculty & Staff | Retaliation

  • Date:

    Orr v. S. Dakota Bd. of Regents (D. S.D. May 11, 2023)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track instructor of health and physical education at Northern State University, brought multiple discrimination and retaliation claims against the University and multiple officials after he was denied tenure due to insufficient scholarship. Leading up to this decision, plaintiff took 6 weeks of paid parental leave early in 2018, returning approximately a month before he was informed of his tenure denial. Plaintiff claimed that the University unlawfully interfered with his rights under the FMLA by declining to extend 12 weeks of paid leave. The court disagreed. Although FMLA permits eligible employees to take 12 weeks of leave, the leave need not be paid. Further, plaintiff never requested an additional 6 weeks, thus extinguishing any rights he may have otherwise had under the Act. However, the court permitted plaintiff to proceed on his FMLA retaliation claim based on disputed facts about whether plaintiff was denied tenure for insufficient scholarship, as the Tenure Committee represented, or whether shifting explanations about plaintiff’s collegiality coupled with animosity and controversy related to plaintiff’s parental leave “more likely motivated” the tenure decision. The court dismissed plaintiff’s Title IX claim for lack of an adequate comparator but permitted him to proceed in his First Amendment retaliation claim against the Dean. 

    Topics:

    Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Andy Warhol Found. For the Visual Arts, Inc. v. Goldsmith (U.S. May 18, 2023)

    Opinion affirming judgment in favor of the Respondent. In 1984, Lynn Goldsmith licensed a photograph of Prince to the magazine Vanity Fair for a one-time use as an “artist reference for an illustration.” Andy Warhol then produced an image for the magazine and 15 others for a series of images. After Prince’s death, the Andy Warhol Foundation (AWF) licensed one of the images in the series to Condé Nast for a magazine cover. Goldstein informed AWF that she believed the use infringed her copyright. AWF sued for a declaratory judgment of noninfringement or fair use, and Goldsmith counterclaimed for infringement. The district court awarded summary judgment to AWF, the Second Circuit reversed, and the U.S. Supreme Court affirmed. In an opinion focused on the question of “whether the first fair use factor, ‘the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,’” the majority found that “Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.” 

    Topics:

    Copyright & Fair Use | Faculty & Staff | Intellectual Property

  • Date:

    NLRB GC Memo re: Suggested Manual Election Protocols (May 16, 2023)

    Memorandum from the General Counsel of the National Labor Relations Board (NLRB) re: Suggested Manual Election Protocols.  Noting the end of the federal COVID-19 public health emergency declaration, the General Counsel updated suggested protocols for in-person manual elections to include suggestions for managing the ongoing risks of COVID-19 transmission.  Decisions on election procedures and safety protocols remain at the discretion of the Regional Director. 

    Topics:

    Collective Bargaining | Faculty & Staff

  • Date:

    In re Noah’s Ark Processors, LLC (N.L.R.B. Apr. 20, 2023)

    Decision and Order from the National Labor Relations Board (NLRB) expanding remedies against employers that repeatedly or egregiously violate bargaining duties. Reviewing the decision of an Administrative Law Judge in a case in which the Respondent was twice found to have bargained in bad faith and declared impasse unlawfully, the NLRB imposed additional remedies, including reimbursement of the union’s bargaining expenses and lost pay to employees who participated in bargaining sessions that were determined to have been conducted in bad faith. It also required the employer to provide employees with an explanation of their rights and notice of the unfair labor practice, including through mailings, publication in local media, and reading of the notice by the company’s CEO or an NLRB staffer in the presence of the CEO.  

    Topics:

    Collective Bargaining | Faculty & Staff

  • Date:

    Marshall v. State (Wash. App. May 2, 2023)

    Opinion affirming-in-part and reversing-in-part summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor at the University of Washington Tacoma, brought discrimination and retaliation claims against the University after she was denied promotion and tenure. Though plaintiff’s record of research funding and publication was strong, the University pointed to low student evaluations in some of her courses to defer her reappointment and then deny her application for promotion and tenure. The Court of Appeals of Washington reversed summary judgment on her discrimination claim, holding that inconsistencies between student evaluations and positive peer observations of her teaching, studies documenting racism on campus, comments suggesting racial animus by people involved in her review, and a lack of other efforts to retain her were sufficient to raise a material question as to whether the focus on student evaluations was pretextual. The court similarly reversed on her hostile work environment claim, finding that use of “coded language that could reflect racial animus” presented a material question as to harassment affecting the terms or conditions of her employment. It affirmed summary judgment in favor of the University on her retaliation claim, however, holding that she presented no evidence to suggest that adverse employment decisions were motivated by her reports of discrimination rather than the bias she alleged.  

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Retaliation | Tenure

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