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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Employee Discipline; Collective Bargaining; Faculty & Staff

NLRB General Counsel Issues Guidance on Employee Handbook Rules (July 2, 2018)

National Labor Relations Board General Counsel Memorandum detailing Guidance on Handbook Rules Post-Boeing. Following the National Labor Relations Board (NLRB)’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), which enacted a balancing test between employee rights and employer business interests for determining the lawfulness of certain workplace rules, the NLRB Office of the General Counsel issued this Memorandum to guide Regions on the categorization of certain workplace rules and the various factors to balance when considering their lawfulness. Notably, rules discussed in Category 1 (rules that are generally lawful to maintain) include civility rules, no-photography and no-recording rules, rules against insubordination, disruptive behavior rules, rules protecting customer information, rules against defamation, rules against using employers’ intellectual property, rules requiring authorization to speak on behalf of the company, and rules banning disloyalty or self-enrichment. Categories 2 and 3 go on to discuss rules warranting individualized scrutiny and rules that are unlawful to maintain. Regions are also advised to submit their cases to Advice where rules of confidentiality of discipline or arbitration, or rules that may limit employees’ access to certain NLRB processes, arise.

Contract Administration; Employee Discipline; Tenure; Academic Freedom; Faculty & Staff; First Amendment & Free Speech; Constitutional Issues

McAdams v. Marquette University (Wis. July 6, 2018)

Opinion reversing the Judgment and Order of the circuit court and remanding with instructions to enter Judgment in Favor of Plaintiff. Plaintiff, a tenured professor at Marquette University, alleged that Marquette breached its contract when suspending him for posting a blog entry that was critical of another professor.  He argued that this expression was protected by his contractual guarantee of academic freedom and by his constitutional right to free speech under the First Amendment. As a preliminary matter, the court determined that the parties never agreed that Marquette’s internal procedures for disciplining tenured faculty members would replace or eliminate resolution of disputes through the court system. The court also found that Marquette’s disciplinary procedures suffered from fundamental procedural flaws, which in this instance arose because a member of the tribunal harbored bias against Plaintiff that was evidenced through their signing of a public letter condemning Plaintiff’s blog post. Turning to the merits of Plaintiff’s breach of contract claim, the court found that the doctrine of academic freedom protected his blog post, and Marquette breached its contract when suspending Plaintiff for the blog’s contents. The court ordered that Plaintiff’s suspension end and that MU reinstate him to the faculty.

Retaliation; Faculty & Staff

Skoorka v. Kean Univ., et al. (D.N.J. June 26, 2018)

Order and opinion granting-in-part and denying-in-part Defendants’ Motion to Dismiss.  Plaintiff, a tenured professor of Economics and Finance at Kean University (KU), alleged that KU, his union, and persons affiliated with these entities retaliated against him for whistleblowing and because of his religion.  Plaintiff has a lengthy litigation history with Kean University.  Noting that many of the claims in the current lawsuit paralleled earlier claims, the court dismissed several counts as being untimely, failing to state a claim, or because Plaintiff waived the claim.  The court then turned to Plaintiff’s sole surviving claim, Title VII Retaliation.  Emphasizing that Title VII neither imposes a civility code no insulates employees from petty slights or minor annoyances, the court, summarily reviewing all alleged retaliatory actions, deemed only one allegation to be actionable under Title VII—Plaintiff’s transfer from a teaching position to a non-teaching position.  Because Plaintiff produced evidence that Defendants offered inconsistent reasons for this transfer, the court found the allegations sufficient to survive dismissal. 

Litigation, Mediation & Arbitration; Faculty & Staff; Practice of Higher Education Law; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Benoy v. Bd. of Regents of the Univ. of Wisconsin (W.D. Wisc. June 21, 2018)

Opinion and Order granting Defendant’s motion for partial judgment on the pleadings and dismissing Plaintiff’s sex discrimination claims.  Plaintiff, a former housekeeper employed by the University of Wisconsin-Madison (Defendant) sued under Title VII alleging that her former supervisor discriminated against her on the basis of her sex and that when she complained about his behavior, the Defendant retaliated against her by terminating her employment.  Defendant sought partial judgment "on the basis that [Plaintiff] failed to exhaust her administrative remedies with respect to these claims and expressly waived them during the administrative proceedings preceding this lawsuit." Plaintiff stipulated to the dismissal of the sex discrimination claims, giving rise to the instant Opinion and Order of the court.

Collective Bargaining; Faculty & Staff; First Amendment & Free Speech; Constitutional Issues

Janus v. American Federation of State, County, and Municipal Employees Council 31 (U.S. Supreme Court, June 27, 2018)

Order and Opinion reversing the judgment of United States Court of Appeals for the Seventh Circuit and remanding for further proceedings.  Petitioner Mark Janus declined to join his local union because he opposed the public policy positions the union advocated.  Still, pursuant to Illinois law, he was assessed an “agency fee” for lobbying, social and recreational activities, advertising, membership meetings and conventions, litigation, and other unspecified services.  The Petitioner alleged that the mandatory agency fee amounted to “coerced political speech” in violation of the First Amendment.  By imposing a “blanket requirement that all employees subsidize speech with which they may not agree,” the Court invalidated the agency fee under the compelled speech doctrine of the First Amendment. In so doing, the Court overruled its 1977 decision in Abood v. Detroit Bd. of Education.

Litigation, Mediation & Arbitration; Faculty & Staff; Practice of Higher Education Law; Discrimination, Accommodation, & Diversity

Ackerson v. Univ. of Va. (W.D. Va., June 22, 2018)

Memorandum opinion rejecting Plaintiff’s motion for sanctions against Defendant University of Virginia for failure to preserve notebooks that could have contained evidence relevant to Plaintiff’s claims. Plaintiff brought suit against Defendant alleging she was subjected to various forms of employment discrimination under several federal statutes (the Equal Pay Act, Title VII, Title IX, and the Rehabilitation Act). During discovery, Plaintiff requested Defendant produce any documents relating to any complaints made by Plaintiff, including any notes, minutes, or written record of any meetings regarding such complaints. Notwithstanding having received a litigation hold memorandum, Defendant’s Senior Vice Provost destroyed notebooks containing notes of weekly meetings he held with Plaintiff. Plaintiff moved for sanctions against Defendant for failing to preserve the notebooks. The Court rejected Plaintiff’s motion, finding that there was no evidence that the Senior Vice Provost willfully destroyed the notebooks or that they contained evidence relevant to Plaintiff’s claims.

Collective Bargaining; Faculty & Staff

Part-Time Faculty Association at Columbia College Chicago v. Columbia College Chicago (7th Cir. June 15, 2018)

Order affirming the district court’s order vacating the arbitration decision. Plaintiff, the Part-Time Faculty Association at Columbia College Chicago (PFAC), which represents part-time faculty members for collective bargaining at Columbia College Chicago (CCC), challenged a National Labor Relations Board (NLRB) determination that placed 50 – 75 CCC employees in its bargaining unit based on their dual full-time administrative and part-time faculty duties. Plaintiff pursued arbitration to review the NLRB’s determination and following a favorable outcome, sought to compel CCC to abide by the terms of the arbitration award. Consistent with controlling case law, the court found that the NLRB’s determination prevailed over the arbitration award. Moreover, because the arbitration award directly conflicted with the NLRB determination, the award was unenforceable as a matter of law.

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

Chen v. The Pennsylvania State University (M.D. Pa. June 8, 2018)

Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, an Assistant Professor of Chinese national origin at Pennsylvania State University (PSU), alleged that Defendant unlawfully discriminated against him based on race and national origin when denying him tenure and breached their contract obligations by failing to take certain steps in his tenure review. In allowing the case to proceed to trial, the court acknowledged Plaintiff’s observation that seven out of the eight candidates who received tenure were Caucasian, and there were several instances in which the tenure review committee assessed Plaintiff’s tenure dossier more critically than the other candidates.  For example, both Plaintiff and two other candidates were the primary author on a single paper; the tenure committee remarked unfavorably about the lack of first-authored papers with respect Plaintiff while the other candidates were praised.  Similarly, the committee characterized Plaintiff’s advising record as “disappointing,” while complimenting candidates with similar advising records.  These disparities were enough to defeat summary judgment on Plaintiff’s race and national origin claims. The court dismissed Plaintiff’s breach of contract claims after finding that PSU met its obligations under its Administrative Guidelines.