Friday, September 16, 2011

The Terminated

A University of Tennessee at Chattanooga professor was removed as department head but continued as a professor. He sued, alleging that the action had been taken when he had refused to delete his unfavorable evaluation of a colleague who was seeking tenure.

The complaint alleged:

• Dr. [H.]’s duties as department head included the review of the academic
credentials and professional performance of professors within the Department.

• [T.W.], hired as an assistant professor in the Department in 2001, was
scheduled to be considered for tenure in the spring/summer of 2008. During 2007, as part
of his administrative duties as department head, Dr. [H.] concluded that Ms.[W.]’s
professional conduct was not acceptable. His conclusions were based in part on her repeated
and unannounced absences from the classroom, her refusal to accept his advice when she
engaged in an extra-marital affair with an undergraduate student in the department, her
falsification of information in several year-end reports and in her resume, and her fraudulent
claims for several alleged publications that did not exist.

• When the Dean of the College of Arts and Sciences...became aware
of Dr. [H.]’s evaluation of Ms. [W.], he instructed the Acting Dean to order Dr. [H.]
to remove all negative information from the evaluation.

• Dr. [H.] informed Dean Burhenn that he did not intend to remain silent about
these matters while the University conducted a final tenure review for Ms. [W.]. Dr.
[H.] sent Dean Burhenn an e-mail stating “I cannot any longer obey orders to cover up
professional malfeasance on the part of any member of this department, and I cannot agree
to having such information suppressed.” In a meeting following the email, Dean Burhenn
asked Dr. [H.] to resign as department head.

• When Dr. [H.] refused to resign or remain silent about Ms. [W.]’s “academic
fraud,” he was “informed that he would be terminated as Department Head at the end of the
academic year. This termination was based on [his] refusal to alter official documents or
remain silent as to the academic fraud and professional malfeasance which was perpetrated
on the University and the citizens of the State of Tennessee.”

The Tennessee Supreme Court affirmed the dismissal of the action, concluding that the loss of the department head position did not create a cause of action under the Tennessee Public Protection Act:

It is not disputed that Dr. [H.] was removed as department head, but continued to
be employed as a professor. Whether his complaint is sufficient depends on whether the
TPPA applies to an employee whose employment relationship is completely severed or only
modified in some manner. By its language, the TPPA applies to an employee who is
“discharged or terminated.” Because these terms are unambiguous, we look to “the natural
and ordinary meaning of the statutory language within the context of the entire statute
without any forced or subtle construction that would extend or limit the statute’s meaning”
to determine the legislature’s intent.

A dissent would find the allegations sufficient to state a claim, as the plaintiff had been "terminated" as department head.  (Mike Frisch)

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