LCW Attorneys Eileen O’Hare-Anderson and Jenny Denny successfully represented a community college district in a tenured faculty member’s disciplinary appeal.
Throughout the faculty members ’ more than 15 years at the District, the District received numerous student complaints against him alleging harassing and discriminatory classroom conduct and generally inappropriate behavior aimed at students and colleagues. The District issued repeated written warnings from the faculty member’s deans and College President. Despite these warnings, an administrative investigation in 2018 confirmed the faculty member continued to violate directives and District policies. The District placed the faculty member on paid administrative leave in December 2018 pending the Board of Trustees’ final decision ending the faculty member’s employment in February 2019.
The faculty member appealed. The District and faculty member, representing himself, set the matter for a 10-day hearing in February 2020 before the Office of Administrative Hearings.
Prior to the hearing, the faculty member, who is a licensed attorney, sent an extreme number of special interrogatories, several motions to compel discovery, a motion for sanctions, a motion to dismiss, motions to strike, and even a motion for summary judgment, all of which are extremely rare in an OAH proceeding.
The District presented testimony from 20 witnesses who interacted with the faculty member. Most of the faculty member’s witnesses were former students who had been enrolled in his classes and who were not offended by his conduct. In the end, the faculty member, through his testimony, clearly showed he was evidently unfit for service and persistently violated the District’s policies and directives.
The Administrative Law Judge issued a 137-page ruling upholding the District’s termination of the faculty member. Specifically, the ALJ found a preponderance of the evidence established that the faculty member told a story about a former student in which he described her scant attire and breast size, repeatedly used the word “tard” (a truncation of the word “retard”) to describe himself and students, referred to wives as “bitches,” and made a crude reference to political candidates performing sex acts in order to advance her political ambitions. The ALJ found these comments cumulatively constituted hostile or offensive conduct in violation of District policy and procedure, inappropriate or offensive remarks, jokes or innuendoes based on a person’s gender or other protected status. The comments also constituted inappropriate comments regarding an individual’s body, physical appearance, attire, and were patronizing or ridiculing statements that conveyed derogatory attitudes based on a protected status. The gratuitous comments created a hostile academic environment that interfered with the learning or work activities of several students. Finally, the ALJ found that the First Amendment did not protect the faculty member’s speech because the District had a greater interest in maintaining a hostile-free learning environment and the offending conduct did not relate to the substance of the faculty member’s lectures.
The ALJ concluded that the District’s decision to dismiss the faculty member was reasonable and supported by the District’s evidence. The ALJ affirmed the decision to terminate.
