Academic lawsuits

[Hegemony]

Let's say that a tenure-track faculty member, John Litigious, comes up for tenure. There are three people on the tenure committee: Tom, Dick, and Harry. Tom and Dick are happy to grant tenure to Prof. Litigious, but Harry has reservations and is opposed. The departmental vote eventually goes for tenure, but Harry's reservations have caused dissension and turmoil, and this turmoil makes its way up to the hierarchy until it finally reaches the highest administration, and Litigious ends up being denied tenure. One of the issues turns out to be that Litigious was spending a lot of time trying to get a union started (and in the course of this, published less than the norm, though not nothing). And so part of the charge is that Litigious was being targeted for being pro-union. To add to the complications, along the way Harry has made a procedural error, which no one caught until many months later.

Now Litigious is furious and wants to sue Harry personally for targeting him and being responsible for his tenure denial.

Is this feasible? And/or can Litigious somehow sue Harry via a suit against the university? How would this play out?

Thanks for any insight you can give. Quite a situation may be developing.

[Morden]

Oh dear. This sounds very messy. This institution doesn't currently have a union (since Litigious was accused of wanting to start one); otherwise, I would suggest that a grievance procedure is more likely than a legal suit. I don't see how Harry could be sued personally; however, the university might be based on the procedural error.

[Hegemony]

The university does now have a union, since the efforts of Litigious and others were successful. Does that make a difference? Litigious is specifically speaking in terms of a lawsuit rather than a grievance.

[Morden]

I'm in Canada, so YMMV. Here it would be much more likely that the grievance process would come into play, and the union would file a grievance seeking to get Litigious tenured based on the procedural error. Part of that would be because of the cost of litigation for Litigious. If a grievance process is in place, I would assume that a judge would expect it to be used rather than the civil system (but that is just my assumption).

[bacardiandlime]

My guess is that suing Harry is a nonstarter.
The decision not to grant tenure was made in the end by the high up administrators, and the dept vote (despite Harry's view) was for it. What is the alleged tort here?

If Prof Litigious' goal is to get the decision overturned (and be granted tenure?). Or to get some kind of compensation payout?

[Istiblennius]

It makes sense to focus on the procedural error - but that is a University issue, not a Harry issue. The error was made, no-one caught it, and if it impacted the administrative decision, then that is exactly what a grievance should do, and since the union now exists, its time for them to demonstrate their value.

Harry's reservation sounds reasonable, depending on how the tenure and promotion standards are presented and addressed. Good on Prof. L. for trying to make their workplace better, but they do still have to do their job. If Harry identified a place where they think the job was not done, for whatever reason, that needs to at least be discussed. It's what the process is for. If the process is broken, that's the University's liability, not Harry's.

[arty_]

I am very. very sorry that this is coming down your pike. Ugh.

At our institution, we have had the misfortune of individual members of a tenure committee being sued independent of and in addition to the university. While the case I know about went "nowhere" for those who were sued, it sure took up years of time , paperwork, depositions, and agony in that department. So to answer the question is it possible? In my red state, yes, it is possible to sue individual members of a personnel committee and to have to deal with it.

[kaysixteen]

Well, it does seem that he was punished for his union activism.

[Wahoo Redux]

Hegemony, I know nothing about any of this, so I'm going to make a dumb and obvious suggestion which you probably know already: we really can only make suppositions; most lawyers will do a free initial consultation; go talk to a lawyer.  Will the school or, ironically, the union provide you with one?

[RatGuy]

Well, it does seem that he was punished for his union activism.

I read it that he did not reach his research goals, but was given a pass in part because of his union activism.

At my place, there's a pretty standard checklist for each annual review. There's rarely any surprise tenure denials because of those checkpoints. I'm guessing Litigious got feedback along the lines of "we're glad you're trying to start a union, but don't let that interfere with other responsibilities" or "since you're trying to start a union, we're gonna lower the requirement for your other responsibilities." I'd be interested to know which.

[Hegemony]

I don't think Litigious got any response to his union activities. Tom and Dick remarked, casually, that perhaps one reason his publications were thin was that he had been spending a lot of time on the union. Harry said that he has to be judged on his publication record, which is part of the university's official requirements for tenure, and that outside activities are not on the list. Nevertheless you can see how it can be a suspicion that bias is involved.

[jerseyjay]

And/or can Litigious somehow sue Harry via a suit against the university? How would this play out?

It is my experience that anybody can sue anybody for anything. I have heard of professors suing administrators; professors suing the university; administrators suing the school; students suing the school; students suing professors; professors suing chairs; professors suing other professors.

Talking to various people involved, my understanding is that while often the cases are thrown out, the end result is usually a lot of time and money eaten up by attorneys. Thus in some cases the university might settle instead of drawing out a long lawsuit.

I am not sure how likely it is that somebody acting in a official capacity and within more or less reasonable limits could be found personally liable. That is, if Harry sexually harassed or threatened to kill Litigious, that would be one thing; but if Harry just made a bad decision, it is not likely that he would personally be legally liable. Except for the procedural error, it does not seem that Harry did anything illegal. And I am not entirely sure what the procedural error entailed, but even so, it would seem to be not that important since the department voted to give tenure to Litigious.

If Litigious was disciplined for union activity, that would seem to fall under the purview of the NLRB.  (Although it is hard to win such cases.) Perhaps Litigious could make a case that the denial of tenure was wrong (e.g., that he was punished for his union activism). I am not sure where Harry comes into this--and it would seem a diversion from any (perhaps) legitimate suit that Litigious might have.

Of course, the real answer is to consult an attorney. But if you pay an attorney enough (or pay the right attorney enough, or find an attorney willing to take on a suit for part of the settlement) they will sue anybody for you. Litigious could probably even find an attorney who would tack on the claim of loss of consortium to the case. The question is, is there any chance of winning.

[financeguy]

Any competent attorney will likely name all relevant parties, the removal of some often being used as a negotiating tool. (This was a point of contention in a well-known city council following a police lawsuit. The lawyer would only agree to remove the council members from personally being named if they stopped voting to indemnify officers against personal loss, arguing that this policy caused or contributed to the police misdeeds.)

These tactics may be excessive but can have real consequences. In my field and many others involving licensing, you have to disclose when you are a named defendant in a suit, particularly if related to your field. No one wants to check that box when changing employers. Easy to just pass if someone is involved in any litigation. Some attorneys will include torts that are also crimes such as fraud to make things as onerous as possible for those involved personally. A complaint is public record once filed so if Harry's name is uncommon, it could be one of the first google results.

The mechanics are almost entirely based on the desire for monetary compensation vs actual tenure, the latter of which can be negotiated but it is exceedingly rare for a judge to grant "specific performance" of any kind rather than monetary compensation.

[lightning]

I'm going to speculate even further.

Do you think Litigious got involved with union activism because they knew their tenure case was weak?

I've noticed that at my university, junior faculty who are way too over-involved with union activities are the same junior faculty who are going up for tenure with borderline tenure cases.

[bacardiandlime]

I've noticed that at my university, junior faculty who are way too over-involved with union activities are the same junior faculty who are going up for tenure with borderline tenure cases.

You're not the only one to have noticed this.