Archive for the ‘Rulings by Courts’ Category
Monday, August 3rd, 2015
Workplace bullying is endemic in healthcare and education, including higher education, for reasons discussed elsewhere at the WBI website.
Now comes a story of an inept community college administration, at Weatherford College, unwilling to even consider complaints from a long-time faculty member. Professor Karen Lopez Austen about the abusive conduct she faced in the Athletics Department.
The WBI 2014 U.S. Workplace Bullying Survey revealed that most employers deny complaints or justify them. In Austen’s case, they never considered the evidence she had assembled for the Board. An outsider can easily infer that the Administration, led by Kevin Eaton, had decided to not renew Dr. Austen’s contract, despite the legitimacy of her complaint.
So, as was her right, Dr. Austen filed a civil suit claiming sex and ethnicity discrimination along with retaliation for daring to hold the college accountable to operate lawfully and according to internal policies. She probably, like most bullied targets, especially highly educated individuals, expected to find justice in court. We constantly warn targets that justice is rarely found and almost never in court.
Remember, the college administrators refused to hear her complaint. The trial court judge did not allow Dr. Austen her day in court. Judges possess ultimate authority to grant access to their courts.
Judges have two avenues to end cases before they start — dismissal or summary judgement. Targets are typically plaintiffs who sue their employers, the defense. The defense files the motion to dismiss. Dismissal is based on technical details of the case that have not been addressed ensuring that the law cannot relieve the problem — e.g., “including lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or failure to join a necessary party.”
When the defense files a motion for summary judgement, it is saying that if the parties don’t dispute the material facts of the case, then the judge can determine whether the defendant is liable based simply on the pre-trial evidence assembled, if any exists. In the case Austen v. Weatherford College, there was no such agreement. The civil case was all about the disputed facts. The college said nothing happened. Dr. Austen said otherwise. Guess what. The judge in Federal District Court agreed with the college and threw out the case based on summary judgement.
In most cases, financially strapped terminated and unemployed targets go no further. But Dr. Austen filed an appeal with the federal Fifth Circuit. It was no surprise that the Appellate Court upheld (agreed with) the pro-administration ruling of summary judgement. Remember, no entity had yet considered the evidence that plaintiff Austen had put together to prove her complaint of discrimination.
Austen’s attorney, Mark Robinett, at the Austin Texas firm of Brim, Arnett & Robinett. P.C., was shocked by the 5th Circuit Court’s ruling of a 3-judge panel (Judges Smith, DeMoss and Higginson). What he found appalling was that his client’s evidence did not matter. In a general letter to the public, attorney Robinett wrote:
… the Court of Appeals held that her evidence did not matter, that she had failed to present a “prima facie” case or “rebut the legitimate reasons for termination (sic nonrenewal) offered by the college. The court also holds, as if it has some basis for making a fact finding (which is a “no-no” for an appellate court) that “(t)he six serious, documented instances of misconduct from the semester after the settlement agreement were the primary reasons for termination (sic nonrenewal).
Robinett, quoting the appellate court’s ruling stated
What matters is not the truth of the underlying complaints and reports, however, but rather whether the college could legitimately have relied on them in deciding to terminate Austen. The college could do so.
In fact, the college president, Eaton, mis-characterized Dr. Austen’s complaint to the Board. The Board never heard Austen’s perspective.
The injustices Austen faced was compounded by the 5th Circuit with its pro-institutional bias that claimed evidence did not matter. Robinett concluded that the court was doing a trial jury’s job without the benefit of live testimony or assessing the credibility of the Weatherford College administrators.
Read Attorney Robinett’s letter countering the assertion that Dr. Austen was not renewed for just reasons. She never got to tell her side of the story to an impartial court.
Read the ruling by the three judges that back legal scholarship and justice by decades.
Justice in America?
Tags: 5th Circuit Court of Appeals, abusive conduct, dismissal, justice, Karen Lopez Austen, summary judgement, Weatherford College, workplace bullying
Posted in Fairness & Social Justice Denied, Related Phenomena, Rulings by Courts, WBI Education, Workplace Bullying Laws | 1 Archived Comment | Post A Comment (
Thursday, April 2nd, 2015
WBI: Justice is about to be meted out in Madison Wisconsin three years after Philip Otto took his own life though he was close to retirement from the WI Department of Corrections. Otto had transferred from one facility to another. The climate at Oakhill represented by the actions of several coworkers and led by one supervisor was extremely toxic and unwelcoming. After his death, investigations were conducted leading to terminations of key coworkers. The supervisor was allowed to retire. One captain was reinstated. Other workers filed an appeal with the Wisconsin Employment Relations Commission asking for reinstatement. The hearing examiner Stuart Levitan heard testimony during 16 days in 2013. I reviewed the record and testified on behalf of the State concluding that the fired employees (Rachel Koester, Matthew Seiler and Justyn Witscheber) had demeaned, harassed, bullied and disgraced their peer, Mr. Otto, who had transferred recently to their facility — new to the place, but a veteran corrections officer. Progress in the case reported below is that the hearing examiner ruled Rachel Koester was justly terminated, according to a pending decision released on March 4. … Gary Namie
Examiner: Firing of Oakhill Guard Following Suicide Was Proper
By Dee J. Hall, Wisconsin State Journal, March 31, 2015
A hearing examiner has determined that the state Department of Corrections properly fired a guard who allegedly shunned and belittled a fellow officer who later committed suicide.
Philip Otto, 52, killed himself in March 2012 after what his wife, daughter and co-workers described as a pattern of bullying by fellow employees at Oakhill Correctional Institution.
The 20-year DOC veteran’s death came just months before he planned to retire with full benefits, his wife, Peggy Otto, told the State Journal in 2012.
In the proposed decision dated March 4, Wisconsin Employment Relations Commission examiner Stuart Levitan found the firing of correctional officer Rachel Koester was justified. He cited an internal investigation launched after Otto’s death in which dozens of Oakhill staffers were interviewed.
Tags: bullying, coworkers, Oakhill, Philip Otto, Rachel Koester, suicide, Wisconsin Dept of Corrections
Posted in Rulings by Courts, Target Tale, WBI Education | 1 Archived Comment | Post A Comment (
Friday, December 19th, 2014
“Protection” of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status. Of course, “protection” actually means the right to file a complaint alleging disparate treatment based on one’s transgender status.
In a Dec. 18 memo, Attorney General Eric Holder made identity as a transgender individual a protected group. In order for anyone to claim discrimination, the person must be a member of a protected status group.
This new decision extends the 1964 federal civil rights law. Read the memo.
With respect to bullying in the workplace, according to the 2007 WBI U.S. Workplace Bullying Survey, 20% of bullying cases involve a recognized claim of discrimination. This means that in 1 of 5 bullying cases, targets can compel their employer’s attention to the problem because of possible illegal discriminatory conduct.
Tuesday, July 15th, 2014
WBI friend Lewis Maltby wrote convincingly in his book, Can They Do That?, that American workers have very few rights. Without a union bargained contract, all rights are owned by management unless state or federal laws provide specific protections. Among the industrialized nations (members of the OECD), US workers have the fewest rights.
Robert Fuller, another WBI friend, speaks and writes eloquently about somebodies and nobodys, the hierarchy in our lives. For him, the issue is rankism. It makes good sense in our nation of ever-expanding income inequality.
From the work of stress guru, Robert Sapolsky, Stanford University professor and researcher, we learn that simply organizing social groups in hiearchical ways with rank playing a role in how all resources are unevenly divided is stressful. Those dominated by others are doomed to lives of ongoing stress. Social subordination generates distress, that in turn, triggers major life-threatening diseases through disruption of the adrenocortical, cardiovascular, reproductive, immunological, and neurobiological systems (Sapolsky, 2005).
Workers bullied by higher ranking bosses (56% of all targets) will find it nearly impossible to avoid contact. That toxic contact is the exposure to stress that causes health harm.
I say all this to put into context the June 30, 2014 decisions by the U.S. Supreme Court (SCOTUS). By majority votes of the conservative-dominated court, the rights of company owners were expanded. The (chief justice) Roberts Court has never ruled against corporate interests.
The two cases decided upon were Sylvia Burwell, Secretary of HHS v. Hobby Lobby Stores, Inc. (13-354) and Conestoga Wood Specialties Corporation v. Sylvia Burwell, Secretary of HHS (13-356) — jointly dubbed the Hobby Lobby decision.
Tags: California Healthy Workplace Advocates, distress, Hobby Lobby, Lewis Maltby, Robert Fuller, Robert Sapolsky, SCOTUS, stress, US Supreme Court
Posted in Bullying-Related Research, Rulings by Courts, Social/Mgmt/Epid Sciences | 1 Archived Comment | Post A Comment (
Monday, June 30th, 2014
Unions have certainly become punching bags recently for anti-union zealots — Republican Governors, mainstream media, the US Supreme Court (SCOTUS) and their long-standing arch enemy, the National Right to Work foundation. The right to work meaning without union protections so you can work for minimum wages and absolutely no say in how your work is organized and assigned. Incredibly, 24 states have adopted “right-to-work” legislation that undermines unionism. The NRTWF is the organization that sues unions on behalf of workers fed up with their unions.
So arose the court case Harris v. Quinn (the State of Illinois). The SEIU has been organizing low-paid workers in the home health industry for years. Those workers are typically women of color. They serve disabled individuals in their home — hard work by compassionate underpaid people. When they unionize, wages rise a bit.
Unions, like corporations, engage in political activity. Unions contribute to politicians’ election campaigns at a fraction of the amount corporations do, given that the latter have all the cash. Two SCOTUS decisions — Citizens United decision and one this session — made limits of corporate giving disappear. Anti-union groups like the NRTWF exaggerate the amount of union dues spent on political activity and have successfully separated union funds set aside for that activity from funds to run the business of the union — being advocates for their members. Some states require non-members to pay a “fair share fee” to the union in order to take advantage of workers’ benefits negotiated in collective bargaining agreements between unions and government employers. In other states, anti-union legislation has allowed public sector employees to benefit without having to join or to pay the union. Unions call this “free riding.” Alito thinks the phenomenon is “something of an anomaly.”
Tuesday, June 17th, 2014
This article UPDATES A California Judge guts teachers union.
By Jordan Weissmann – Slate – June 12, 2014
This week Los Angeles Superior Court Judge Rolf Treu handed the education reform movement a stunning legal victory, when he struck down California’s teacher tenure laws for discriminating against poor and minority students. The statutes made it so onerous to fire bad teachers, he wrote, that they all but guaranteed needy kids would be stuck in classrooms with incompetent instructors—rendering the laws unconstitutional.
As evidence, Treu cited a statistic that sounded damning: According to a state witness, between 1 and 3 percent of California’s teachers could be considered “grossly ineffective.” Here was the passage:
“There is also no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms. Dr. Berliner, an expert called by State Defendants, testified that 1 to 3% of teachers in California are grossly ineffective. Given that that the evidence showed roughly 275,000 active teachers in this state, the extrapolated number of grossly ineffective teachers ranges from 2,750 to 8,250. Considering the effect of grossly ineffective teachers on students … it therefore cannot be gainsaid that the number of grossly ineffective teachers has a direct, real, appreciable, and negative impact on a significant number of California students, now and well into the future for as long as said teachers hold their positions.”
This seemed like a fairly important piece of the decision — if you’re going to argue in court that a state law is dooming children to second-rate educations, you ought to be able to quantify the problem. Politically, it also seemed liked a pretty awful indictment of the state government if officials knew for certain that so many useless teachers were lounging around California’s classrooms. But where did this number come from?
Nowhere, it turns out. It’s made up. Or a “guesstimate,” as David Berliner, the expert witness Treu quoted, explained to me when I called him on Wednesday. It’s not based on any specific data, or any rigorous research about California schools in particular. “I pulled that out of the air,” says Berliner, an emeritus professor of education at Arizona State University. “There’s no data on that. That’s just a ballpark estimate, based on my visiting lots and lots of classrooms.” He also never used the words “grossly ineffective.”
The expert cited in the ruling doesn’t even necessarily believe that low test scores qualify somebody as a bad teacher.
Tags: AFT, California constitution, California Federation of Teachers, grossly inefficient, Students Matter, teachers, Vergara
Posted in Fairness & Social Justice Denied, Rulings by Courts | No Archived Comments | Post A Comment (
Wednesday, June 11th, 2014
A lawsuit funded by Silicon Valley rich guy, David Welch, is shaking the public education world. A California Superior Court judge, Rolf Michael Treu, found for the plainitffs — nine students backed by the group Students Matter.
The ruling was filed on June 10, 2014.
Teachers think students matter, too. But the pitched battle between non-educators who once went to school which they think qualifies them to know everything about K-12 education, and those who train just to teach schoolchildren has been fought for years. The tack is to beat up teachers publicly, blame teachers, call them bad. And in this case, Vergara vs. California, bad teachers are branded “grossly ineffective.”
Nine students were named as plaintiffs.
The plaintiff’s attorneys were from Gibson, Dunn & Crutcher. The defense was represented by the Attorney General, joined by the California Teachers Association and the Calfornia Federation of Teachers.
Tags: AFT, California constitution, California Federation of Teachers, California Teachers Union, disadvantaged students, equal schools, grossly inefficient, Jonathan Kozol, Students Matter, teachers, Unions, Vergara
Posted in Fairness & Social Justice Denied, Rulings by Courts, Unions | No Archived Comments | Post A Comment (
Tuesday, July 16th, 2013
In January, we detailed the case of Melissa Nelson, a long-time worker in the dental office of James Knight, DDS. After Knight turned 50, Nelson said he became lewd. Knight’s wife and pastor told him to fire Nelson because of the temptation her attractiveness caused for Knight. He followed the advice.
Nelson sued, not for sexual harassment, but for gender discrimination. The dentist was supported by the courts, both trial and appeals, by granting summary judgement in his favor. They threw the case out. In the July 12, 2013 Iowa Supreme Court ruling, they made it clear that since sexual favoritism need not be based on illegal forms of discrimination, neither should unfavorability (page 8 in the Court’s decision). The Supreme Court affirmed the prior appeals court decision. Knight was allowed to legally terminate her on the basis of her beauty as he perceived it!
Tags: dentist, gender discrimination, Iowa, irresistibly attractive, James Knight, Melissa Nelson, sexual harassment
Posted in Employers Gone Wild: Doing Bad Things, Rulings by Courts | No Archived Comments | Post A Comment (
Sunday, July 14th, 2013
Key lessons from Zimmerman murder trial acquittal for advocates for legal solutions to the workplace bullying crisis in the U.S.
Again, a jury’s decision crushes hope for African-American youth. Read the NAACP statement about the jury decision. The “system” seems to not care even when they are killed for committing no crime. Zimmerman literally got away with committing murder. Watch Sen. Harry Reid, a former trial attorney, on Meet the Press state simply that he supports the “system” (advance to the 12:00 min. mark).
White supremacists will overtly rejoice; those harboring implicit stereotypes (explanations for discriminatory behavior when holders of stereotype never utter racial slurs aloud and may not have insight into how that stereotyping accounts for their own behavior) will refuse to acknowledge the moral dilemma such trial outcomes have on society.
We don’t know yet if the jury members wrestled with their consciences over the “stand your ground” law in Florida state or the fact that hotheaded, self-proclaimed crusader Zimmerman was legally carrying a gun that provided the overwhelming leverage over the unarmed teenager. The legal bases of the trial were not supposed to test the defendant’s racism. The judge disallowed that factor from entering the case. Any hope of changing Florida’s “stand your ground” law was squashed by the governor.
The jury of Floridians upheld the validity of both state laws put in place by the powerful gun lobby and the anti-democratic group, ALEC, that hands out the boilerplate bills on all issues that serve to reverse social progress in America.
The decision honored the laws (that’s what courts are supposed to do) while dishonoring Trayvon Martin’s humanity extinguished needlessly by Zimmerman. In the not-so-distant background were the Newtown Connecticut parents whose children were slain by automatic weapons. Survivors of gun victims are expected to grieve and just “get on with their lives,” and not to hope the loss of their loved ones will lead to any changes in our violent society.
Too few court decisions step outside the lines to make a social policy statement for the good of the human race. I had hoped the glare of the national spotlight with saturation coverage on TV would prod those six women to step up and do the right thing. Instead, the narrowness of court trials in the U.S. prevailed. The jury was not necessarily wrong. It certainly was not brave. Eliott Spitzer, former NY Attorney General and Governor, on ABC This Week, stated clearly “this was a failure of justice” (advance to the :30 sec. mark).
Tags: courts, Gary Namie, George Zimmerman, Healthy Workplace Bill, NAACP, Trayvon Martin, workplace bullying
Posted in Commentary by G. Namie, Fairness & Social Justice Denied, Healthy Workplace Bill (U.S. campaign), Rulings by Courts, Workplace Bullying Laws | 3 Archived Comments | Post A Comment (
Wednesday, June 26th, 2013
The U.S. Supreme Court (SCOTUS) is done for the year. Decisions have been rendered. The court gutted the civil rights movement by neutering the Voting Rights Act (Shame on them!) . The court granted LGBT proponents unprecedented rights (Yea!). Two decisions regarding employment law clearly sided with employers and once again stuck it to working men and women.
Case #1: Retaliation Changed to Suit Employer Defendants
In the Univ of Texas v. Nassar (No 12-484), SCOTUS (in a 5-4 vote on June 24, 2013) limits retaliation claims to situations in which the plaintiff can show that the the only employer motivating factor is the desire to retaliate. Justice Kennedy opined that there are two standards — lessened causation and but-for. In cases where the practice of retaliation was motivated by several factors, one of which was race, color, religion, sex or national origin, lessened causation applies. In reality, many factors do apply. The Court called these “mixed-motive” cases.
In this case, a woman supervisor at the University of Texas Medical School, Beth Levine, MD (pictured on the left), harassed Naiel Nassar, MD, a physician of Middle Eastern descent. Nassar was working at Parkland Memorial Hospital in Dallas and was an Associate Professor at the UT Southwestern Medical Center. In 2004, he inherited a new department head, Levine, known to comment “MiddleEasterners are lazy.” He was promised a post at the hospital even after he resigned his academic job. Nassar’s resignation letter cited Levine’s harassment as the reason. A Dr. Fitz who received the Nassar resignation letter felt he had to defend and exonerate his colleague Levine. Fitz convinced the hospital to withdraw its job offer to Nassar. Nassar filed two claims — discrimination by Levine and retaliation by the University that cost him his hospital position.
The five conservative justices actually stated that the lessening causation standard “could contribute to the filing of frivolous claims.” The opinion cites EEOC statistics about the “nearly doubled” frequency of retaliation claims in the past 15 years. They equate retaliation claims with baseless claims. They seem motivated, on behalf of corporations against which these retaliation claims are filed, to reduce those numbers that bother corporate defendants.
Tags: antidiscrimination laws, Ball State, discrimination, dissenting opinion, employer responsibility, Justice Kennedy, Justice Ruth Bader Ginsburg, Nassar, retaliation, supervisor defined, Title VII, University of Texas, US Supreme Court, Vance, vicarious liability
Posted in Fairness & Social Justice Denied, Rulings by Courts, Tutorials About Bullying, WBI Education, Workplace Bullying Laws | No Archived Comments | Post A Comment (