On November 10, 2009, Keller Thoma attorneys secured an important victory on behalf of a Michigan school district against a Union representing the School District’s teachers. The Union filed a lawsuit challenging the validity of the School District’s parental “Do Not Resuscitate” (or DNR) policy. Under the Policy, the School District agreed to comply with “parental DNR directives” that met very specific requirements. A parental DNR directive is a request by a student’s parents and the student’s physician that certain unwanted and potentially harmful and invasive resuscitative procedures not be performed on the student in the event of a life-threatening emergency. Staff are required to honor those directives and could face discipline for refusing to comply with a directive.
The Union challenged the legality of the policy and argued that the School District could not require Union members to comply with parental DNR directives or impose discipline upon a union member who refuses to do so.
Keller Thoma moved for dismissal of the Union’s suit, arguing that the DNR policy was valid since under federal and state case law, parents have the constitutional right to refuse certain unwanted medical procedures on behalf of their children. Keller Thoma argued that Union members must comply with a parental DNR directive or face discipline.
A Wayne County Circuit Court judge agreed with Keller Thoma and dismissed the Union’s case, finding that the School District’s parental DNR policy was valid. This issue has not been widely addressed by courts in the United States, and it is believed that this is the first time a court in Michigan has been asked to rule on this issue.
In a case handled by our office, an Arbitrator has issued an important Arbitration Decision and Award involving the statutes known as the “Student Safety Initiative.”
The case before the Arbitrator involved a custodial employee who had been convicted of a felony for a non-listed offense that occurred during the Grievant’s off-duty hours, and did not occur on the School District’s premises. The School Board voted not to approve the Grievant’s continued employment, and the Superintendent concurred. The Grievant was discharged. The Union argued that the School District had not shown the required “nexus” between the employee’s conviction and his job, and that therefore, the Grievant’s termination violated the provision of the collective bargaining agreement requiring”just cause” for discharge.
In denying the grievance, the Arbitrator reviewed Section 1230g(8) of the School Code, and held as follows:
There are two ways of reading this Michigan law as it applies to the grievance before me. First, it makes a school employee convicted of a non-listed felony (as the Grievant) an employee at the option of the school district. Second, it codifies off-duty felonies for “non-listed offenses” as a species of contractual off-duty “just cause” for termination, with the decision of whether termination is not to be imposed left to the written option of both “the superintendent or chief administrator and the board or governing body of the school district.”
Under this second reading, the statute would establish a “nexus” (or adverse effect) between certain off-duty misconduct (i.e. a non-listed offense which is a felony) and contractual “just cause.” In other words, the statute would prevent an outside neutral decision-maker (court or arbitrator) from applying contractual “just cause” language to overrule a school district’s decision to discharge a school employee for having committed an off-duty felony.
To disregard subsection (8) of MCLA 380.1230g would violate Article 3, Section 3.2 of the parties’ agreement. Section 3.2 provides that “specific and express [e.g. just cause] terms…are [to be] in conformance with…the laws of the State of Michigan.” Rejecting the application of subsection (8) in my Award also would pose a challenge on public policy grounds. (emphasis in original)
Consequently, the Arbitrator’s Opinion and Award should be of major significance to School Districts in defending claims that an employee’s felony conviction for off-duty conduct cannot support a discharge under a collective bargaining agreement.
A police officer grieved his discharge when his employer, a City, discharged him for using excessive force against a minor and violating other police department rules and regulations. The officer engaged in a traffic pursuit in which he traversed neighborhood lawns and endangered drivers on snow-covered roads. After the boy voluntarily stopped, the officer assaulted him in a parking lot and threatened him with his canine. In addition to excessive force, the City charged the officer with giving false information, such as making an announcement during the pursuit that the subject tried to “ram” his police car. The City denied the grievance and the Union proceeded to arbitration. Fellow police officers sided with the grievant during the hearing but, through detailed cross-examination and an exhaustive presentation of evidence, the City prevailed. The Arbitrator found for the City and upheld the officer’s termination.
Two doctors once affiliated with a Hospital sued its parent company and others claiming that they were denied “exclusive” privileges to practice at the Hospital. After the litigation commenced, the Plaintiffs made a formal demand for settlement in the amount of $8,750,000. Keller Thoma secured a dismissal of the lawsuit before trial, based upon admissions secured from the Plaintiffs in their depositions and detailed Motions. Because the doctors did not improve on the “average” of the Offers of Judgment in the case, however, we secured a Judgment against the Plaintiffs for attorney fees, costs, and interest in excess of $525,000.00.
A Keller Thoma client was sued by a former male employee who alleged that he had been sexually harassed by his male supervisor. The employee also claimed that he was retaliated against for reporting the alleged incidents of harassment to management.
The former employee claimed that, over the course of his employment, the male supervisor: (1) showed him inappropriate photographs; (2) touched the plaintiff on the upper thigh while working together on a computer; (3) slapped plaintiff in the genitals with a ruler; (4) asked the plaintiff if he wore boxers or briefs; (5) showed plaintiff a photograph of his nephew, who had won a bodybuilding competition, wearing a “Speedo” bathing suit; and (6) frequently told an off-color joke.
Based on a motion to dismiss the case filed by Keller Thoma, the federal court judge dismissed the case, reasoning that the behavior exhibited by the supervisor was “crude male horseplay” which was not motivated by sexual desire or hostility towards the plaintiff’s male sex. The Court also ruled that the conduct was not severe or pervasive enough to create a hostile work environment.
Two Keller Thoma clients were sued by a Union alleging that the two companies were operating an illegal “double- breasted” operation. While the two companies ran similar businesses, one utilized a union workforce, while the other was union-free. The federal lawsuit sought contributions by the non-union company into various union funds, such as pension funds, vacation funds and training funds, on the basis that two companies were alter egos. Although the two companies were related in many ways, Keller Thoma attorneys successfully argued that the two companies were not “alter egos” under federal law, and the case was dismissed before going to trial.
In a case handled by our office, an Arbitrator issued an opinion which is important for School Boards and School Administrators alike. In this case, a fired Superintendent exercised his contractual right to arbitration by challenging the Board of Education’s decision to terminate his contract. The School District requested Keller Thoma’s services for legal representation in the case. The former Superintendent took the position that his contract could only be terminated mid-term for just cause, that he could not be held responsible because the Board approved much of the alleged misconduct, and that the Board lacked just cause for the termination.
Numerous issues arose during the 12 contentious days of hearing, but the primary charges which led to the termination of the contract were:
The Superintendent’s personal involvement in obtaining a salary step increase for his wife, who taught in the same District;
The purchase of life insurance for the Superintendent which was different in kind than that authorized by the Board of Education, and the Superintendent’s failure to report this benefit as income on his taxes;
The Superintendent’s involvement in the purchase of two school buses without competitive bids; and
The Superintendent’s knowing failure to stop cash payments to an individual who worked for the School District at sporting events.
Based on the proofs presented, the Arbitrator issued an 88-page opinion in which he found that the School District had just cause to terminate the Superintendent’s contract. The Arbitrator found that the former Superintendent’s conduct violated both his contract and several Board Policies. The Arbitrator also noted that the Superintendent’s failure to disclose pertinent facts to the Board before asking them to take action precluded any defense that the Board had approved the misconduct. The case highlights the importance of a “full disclosure” relationship between a Superintendent and his/her Board of Education and of knowing the applicable law before recommending or taking action.