New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

Selected Topics: Faculty & Staff
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Collective Bargaining; Faculty & Staff

Bd. of Trs. of the Univ. of Ill. v. Ill. Educ. Labor Relations Bd. and Univ. Professionals of Ill. (Ill. App. April 16, 2018)

Opinion reversing the findings of the Illinois Educational Labor Relations Board. Petitioner, the Board of Trustees of the University of Illinois (UI), appeals the Illinois Educational Labor Relations Board (Board)’s decision to categorize department chairs at UI’s Springfield campus as non-managerial employees, thereby including them in the bargaining unit for tenured and tenure-track faculty members.  The Illinois Educational Labor Relations Act defines “managerial employee” as one who is “’engaged predominately’ in executive and management functions” and one who “has the responsibility of directing the effectuation of management policies and practice.” The court held that department chairs met both criteria based on their various responsibilities, such as recruiting, evaluating, and terminating adjuncts; overseeing their departmental budgets; ensuring academic and accreditation report compliance; attending leadership meetings; and handling disputes between faculty, students, and support staff. Moreover, the court found that UI’s model of shared governance did not preclude a finding of management status because department chairs continued to have independent authority to establish and effectuate departmental policies and were in a position to resolve grievances in UI’s interest.

False Claims Act; Veterans & USERRA; Faculty & Staff; Research

Hamilton v. Yavapai Community College District, et al. (D. Ariz. April 13, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a terminated employee of Yavapai Community College (YCC), alleged under the False Claims Act (FCA) that YCC and its flight program partner, Defendant Guidance Academy, LLC, conspired to defraud and defrauded the Department of Veteran Affairs (VA) by obtaining funding in violation of 38 C.F.R. § 21.401 (85/15 Rule) and by submitting claims for in-flight training that never occurred. Plaintiff further alleged FCA retaliation and a number of intentional interference claims against Defendants. Addressing whether YCC violated the 85/15 Rule by calculating a single 85/15 ratio for its entire aviation program, rather than calculating four distinct ratios based on its four concentrations within the aviation program, the court found it reasonable for YCC to believe that it was properly calculating and reporting its compliance in 2015 based on the VA’s review of its program from June 1, 2013 to May 6, 2014 and evidence that another area college similarly calculated its 85/15 ratio. However, the court found that YCC’s practice of counting high school students who participated in its aviation program towards the 15% of “nonsupported” students created several issues of material fact as to whether Defendants knowingly miscalculated the 85/15 ratio and whether this alleged failure to comply was material to the VA’s disbursement of funding. The court allowed Plaintiff’s FCA conspiracy and  retaliation, intentional interference with education and employment, and deprivation of liberty claims  to proceed. The court also allowed  Defendants’ counterclaims for defamation and international interference with contract relations to proceed. However, the court dismissed Plaintiff’s allegation that Defendant Guidance violated the FCA by failing to provide students with contracted flight hours, as well as dismissing Plaintiff’s intentional interference with contractual relations claims against Defendant Morgan and YCC due to his lack of a valid contractual relationship with NorthAire Aviation, an alternative flight training school he tried to work for and attend.

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

Monroe v. Columbia College of Chicago and Sheridan (N.D. Ill. April 10, 2018)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss Counts I, II, and III. Plaintiff, a former tenure-track assistant professor at Columbia College of Chicago (CCC), alleged that CCC racially discriminated against him by denying him tenure and subjected him to a hostile work environment and retaliation in violation of Title VII and section 1981. CCC contended that Plaintiff’s claims were time-barred because Plaintiff filed his EEOC charge 326 days after the Provost denied him tenure on March 18, 2013, while Plaintiff argued that CCC’s final decision to deny him tenure occurred on August 12, 2013, when the President of the University affirmed the Provost’s decision through CCC’s grievance process. Consistent with the U.S. Supreme Court’s decision in Delaware State College v. Ricks and the language of CCC’s policy, the court held that Plaintiffs’ claims under Title VII were time-barred, finding that the limitations period began to run when the Provost made the final tenure decision. The court rejected Plaintiff’s claims of equitable tolling and equitable estoppel and declined to allow his claims to proceed under the continuing violation doctrine, since the Complaint did not identify any discrete acts occurring within limitations period. Finally, the conduct Plaintiff alleged failed to plausibly support a hostile work environment claim, and Plaintiff’s section 1981 claim failed because the actions he alleged, such as “hyper-surveillance of his activities” and refusals to assign him administrative responsibilities, did not occur within the four-year time period preceding the filing of his complaint.

FLSA & Categorization of Employees; Faculty & Staff

Department of Labor Publishes Fact Sheet #17S on Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (Apr. 12, 2018)

Publication of Fact Sheet #17S by the Department of Labor Wage and Hour Division on the Applicability of the Fair Labor Standards Act (FLSA) for Higher Education Institutions. Section 13(a)(1) of the FLSA creates an exception to the FLSA’s minimum wage requirement and overtime pay requirement for employees with bona fide executive, administrative, professional, and outside sales duties. The Fact Sheet provides guidelines on common higher education jobs that may qualify for this exemption, such as teachers, coaches, professional employees, administrative employees, executive employees, and student-employees. Of particular note, the Fact Sheet addresses the teaching exemption in the context of online teachers and extension agents, acknowledging that this classification of employees may qualify for the exemption.  The Fact Sheet also discusses how a public college or university  that qualifies as a “public agency” under the FLSA may compensate non-exempt employees with compensatory time off in lieu of overtime pay.

FERPA; Students; Collective Bargaining; Faculty & Staff

Serv. Emps. Int’l Union Local 503 v. University of Oregon (Or. App. April 4, 2018)

Opinion affirming the decision of the Employment Relations Board. Respondent, the Service Employees International Union (SEIU) Local 58, alleged that Petitioner, the University of Oregon (UO), violated state law by refusing to disclose the names of student witnesses who provided information used by UO to terminate and reprimand two of its employees. The relevant state statute required public employers to “bargain in good faith” with an exclusive employee representative by promptly providing relevant grievance information. UO argued that disclosure of the student witnesses’ identities violated the Family Educational Rights and Privacy Act (FERPA), which was consistent with advice from the Family Policy Compliance Office. However, an administrative law judge determined that the withheld information was not protected by FERPA, while the Employment Relations Board (ERB), through a separate determination based on an assumption that the withheld information was protected by FERPA, found that UO violated the state statute because it failed to consider accommodations that would have satisfied both its obligations under FERPA and SEIU’s right to the information, such as seeking each students’ consent for disclosure. The court affirmed the ERB’s decision, concluding that UO’s efforts were “too minimal to meet its obligations” under the relevant state law.

Collective Bargaining; Faculty & Staff

SEIU Local 503, Opeu v. Portland State Univ. (Or. Empl. Rel. Bd. Feb. 13, 2018)

Order adopting the Administrative Law Judge’s Recommended Order and dismissing the Service Employees International Union (SEIU)’s Petition. Petitioner, a labor organization representing two separate bargaining units of Portland State University (PSU) employees, filed a petition for unit clarification of Campus Police Sergeants, who they argued were not “supervisory employees” and therefore should be included in one of SEIU’s bargaining units. In determining whether an employee has a supervisory status, Oregon state law looks to 1) whether the employee has the authority to take action or to recommend action in certain specified instances (e.g. hiring, transferring, suspending, promotion, discharging, disciplining, etc.), 2) whether exercising that authority requires independent judgment, and 3) whether the employee holds that authority in the interest of management. Answering each inquiry in the affirmative, the court found that Campus Police Sergeants were supervisory employees based on their ability to assign, direct, and discipline other officers.

Tenure; Faculty & Staff

Safit v. Pace University (N.Y. App. Div. March 13, 2018)

Order denying Appellant’s Petition and dismissing the case. Appellant was denied tenure and promotion at Pace University and sought to challenge the University’s determination. The court found that the University’s decision was not arbitrary or capricious, particularly because no constitutional violations of due process occurred and the University, in response to Appellant’s allegations, restarted its review process to cure the alleged procedural issues. The court further found sufficient evidence to support the University’s determination.

Employee Benefits & ERISA; Faculty & Staff

Filipek v. Oakton Community College (N.D. Ill. Feb. 27, 2018)

Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiffs represent a certified class of approximately eighty part-time and adjunct faculty who were not eligible for employment by Oakton Community College (OCC) as a result of its decision not to employ or re-employ State Universities Retirement System (SURS) annuitants.  Plaintiffs alleged that this policy  violated the Age Discrimination in Employment Act (ADEA), the Illinois Human Rights Act (IHRA), the Illinois Constitution, and 42 U.S.C. § 1983. SURS provides retirement benefits to eligible state university and public community college employees by collecting financial contributions from them until they are eligible to withdraw a retirement annuity at age fifty-five. Previously, SURS-eligible employees who returned to work after they retired were subjected to earning limitations, but in 2012, Illinois amended its legislation to require state universities and public community colleges with “affected annuitants” to contribute twelve times the amount of any rehired annuitant’s gross monthly retirement annuity. Following this change in the legislation, OCC’s President decided to discontinue employing SURS annuitants, regardless of whether they would become an “affected annuitant.” Addressing Plaintiffs’ ADEA, Section 1983, and IHRA age discrimination claims, the court determined that no reasonable factfinder could conclude that age, and not pension status, was the “but for” cause of OCC’s decision to no longer employ SURS annuitants, especially since OCC’s policy had no impact on those employees who were not SURS annuitants, regardless of their age.  Even if Plaintiffs could make out a prima facie case for disparate impact, the still could not show that OCC’s decision  was based on anything other than precautions to avoid costly contributions.  Last, the court found that OCC’s decision to discontinue employing SURS annuitants did not violate pension protections in the Illinois Constitution, nor did it amount to retaliatory discharge as recognized by the Illinois Supreme Court.