Kentucky Court of Appeals Upholds Firing of Problematic Professor
December 19, 2008
In McBrearty v. Kentucky Community and Technical College Systems (KCTCS), 262 S.W.3d 205 (Ky. Ct. App. 2008), the Kentucky Court of Appeals was able to dismiss a plethora of frivolous discrimination claims because of the school’s precise contracting and clear recordkeeping. Employee Jenean McBrearty signed an 11-month tenure track teaching contract with KCTCS. Soon after she began teaching, McBrearty and her colleague, Hossein Motamedi, had an ongoing personality conflict. The two professors had multiple discussions concerning McBrearty’s curriculum. One month after being hired, McBrearty wrote a memo to both the dean and the president of KCTCS that complained of numerous male coworkers harassing her, including the innocuous discussions with Motamedi, and stated that she considered KCTCS to be a hostile work environment.
Four months after being hired, McBrearty learned her contract would not be renewed. She appealed this decision, but it was denied. McBrearty then claimed, in light of her prior complaint, that the nonrenewal of her contract constituted retaliation. In protest of the nonrenewal, McBreaty posted two cartoons outside her office door facing a public hallway. One cartoon depicted McBrearty with a crutch titled “Bluegrass College Firing the Handicapped” (McBrearty had recently sustained an exercise-related injury and temporarily walked with a crutch). The second cartoon, which was posted immediately following the Martin Luther King holiday, depicted two figures dressed in hooded robes with one labeled “Kearly” (the president of KCTCS), and the other labeled “HLSS Dept.”
McBrearty saw the cartoons had been removed when she arrived the next morning. Claiming fear for her safety, she flagged down a campus police officer. Once she entered her office, she found a note from the dean stating she had removed the cartoons from her door and requesting McBrearty to refrain from posting other “inappropriate” and “unacceptable” signs in the public walkway.
Less then one week later, President Kerley asked McBrearty to resign. Upon her refusal, President Kerley ordered her to pack up her belongings and placed her on paid administrative leave with full benefits for the remainder of her contract. McBrearty then filed a charge with the Equal Employment Opportunity Commission (EEOC) for gender discrimination, disability discrimination, and retaliation. The EEOC found her charges untenable. McBrearty then brought 12 charges in state court against numerous defendants, including KCTCS, in both their official and individual capacities. The charges included violation of her freedom of speech, retaliation, and disparate treatment.
McBrearty’s freedom-of-speech claim stemmed from the dean’s removal of the cartoons from her door. The Court made clear that defamation was not a constitutionally protected speech and that the depiction of President Kerley and McBrearty’s department as Ku Klux Klan members was defamatory; thus, the school had a right to remove them.
McBrearty’s retaliation claim also was dismissed because of the clear and unambiguous hiring contract. The president placed McBrearty on paid leave with full benefits for the remainder of her contract after her refusal to resign. Because the contract clearly stated renewal was firmly in the discretion of the school and the dates of employment were also clearly laid out, the retaliation claim could not stand.
Recordkeeping Is Key
McBrearty’s disparate treatment claim was dismissed because of the school’s proper documentation of faculty grievances and instances of misconduct. Her disparate treatment claim had to show that she was part of a protected class. She also had to show that she was somehow treated more harshly under similar circumstances when compared with male counterparts who were similarly situated, meaning that all of the relevant aspects of their employment situations were nearly identical. The Court dismissed her claim after evaluating the voluminous written record of the surrounding circumstances. This record not only included McBrearty but also the similarly situated professors that McBrearty claimed were treated differently.
This case highlights the continued importance of impeccable recordkeeping. KCTCS documented all instances of grievances and misconduct, regardless of whether they resulted in litigation, and was able to provide these records to the Court in its defense. These records equipped the court with the facts needed to dismiss the claim because the circumstances were clearly laid out at or close to the time when they arose. Written documentation is always important, and a good account of all faculty grievances should be on record to protect the school, as well as individuals, from liability by providing the court with context and factual background.
KCTCS emerged largely unscathed because of clarity in contracts and proactive documentation. Schools should note that clear and unambiguous contract drafting will lead to extinguishing, or at least limiting, the school’s liability. It is always best to prepare before litigation arises rather than being forced to scramble for documentation to refute impropriety after a lawsuit is filed.
For more information, contact:
Melody Bray
404.817.8587
melody.bray@hklaw.com
toll free: 1.888.688.8500
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