Adventures in Ethics and Science

Regular commenter S. Rivlin emailed me to describe a distressing situation in academia and to ask for advice:

Dear Janet,
 
I write to you to solicit your opinion on a recent grievance case I am privy to at my university. I hope you’ll find the time to respond, considering that you are back from your Sabbatical and fully engrossed in teaching and mothering.

 
The grievance was filed against a head (a man) of a research institute for harassment, and against the chairman of the department of which that institute belongs to and the dean of the medical school, for not taking action to stop the harassment. The grievant is a faculty member of the institute (a woman and a close friend of mine) who did everything possible to avoid the grievance process by attempting to resolve the issues internally, but to no avail.

 
All the men against whom the grievance was filed are considered administrators by the university and as such were provided with legal council by the legal office of the university. Faculty members have the choice of going through the grievance process with or without a legal council of their own however, if they choose to have a legal council they must hire an attorney from outside the university and be responsible for their own legal expenses.  The grievant here chose to have an attorney to represent her in the proceedings.

 
Now mind you, the grievance process main aim is to resolve internal disputes by dealing with them in-house without resorting to the outside court system. Actually, the bylaws by which all faculty members and administrators agree to abide include the grievance process. It is thus understood that any grieving faculty member must use this process and prove to the grievance committee members assembled for the hearings that the grievance is justified and that the wrong done must be corrected. Once the proceedings are over, the committee must decide whether or not the grievant has proved her allegations and if she did, must conclude that the wrong must be corrected. If the grievant has failed to prove her case, she could still decide then to proceed through the court system on her own time and expense.
 

In this particular grievance case, the grievant proved, using documents and witnesses, that harassment had occurred and that she had suffered emotional, financial and professional damages. The grievance committee agreed that the harassing party had used his power of authority to hinder the grievant’s career, including her ability to apply and secure NIH grants, and that the Chairman of the department and the Dean of the medical school did not follow the grievant request to intervene on her behalf. Actually the Chairman and the Dean ignored an action advice by outside experts’ that they themselves had sought and received.

 
The whole affair, from the beginning of the harassment until the grievance committee final decision was reached, lasted almost five (5) years. Since the Dean of the medical school was one of the administrators involved in the grievance, the university Provost had been informed regularly during the proceedings and the final report of the grievance committee was sent to her. However, it is not part of the grievance committee’s mandate to recommend steps to correct any damage the grievant had suffered. It is generally understood and accepted that once the grievant had proved that wrong has been done to her, it is up to the university administration to act to correct that wrong.

 
Thus, the grievant in the above case sent a letter to the university Provost in which she asked that the university will allot her at least a two-year budget to allow her lab staff and to be paid and supplies to be purchased (all her grants ran out) and also that the university will pay her attorney fee, which amounted to $25,000. Below is the Provost’s response, which was sent on August 7, 2009, almost 40 days after receiving the faculty member’s letter:

This is in response to your letter of July 1. The grievance is concluded and my role in that process ended. While I cannot agree with the conclusion stated in your letter concerning your performance and current status as a probationary faculty member, the issues you raise and any requests you make should be addressed to your department chair and your dean. In addition, I must decline your request for reimbursement of legal fees.

 
The chance that the grievant’s chairman will come up both with good will and over $250,000 (two year budget) to help the grievant recover from the wrong done to her are slim to none.

 
Obviously, this faculty member is going to lose her technician and postdoc, her lab space and, unfortunately, her career as a scientist. I have advised her that he only action left for her is a civil suit against the university in an attempt to at least salvage the monetary equivalence of the rest of her working years. Based on previous cases, this case will never reach the inside of a courtroom. The university will drag its feet for months and even years, hiring its own legal team, collecting depositions and doing everything possible to discourage the lawsuit. If the faculty member is still standing on her feet by then, the university will settle the case outside the courtroom.

 
I am wondering how you would advice this faculty member.  Feel free to post this email on your blog if you think that your readers’ insight could help.

 
Sincerely yours,

Solomon Rivlin

My advice to the grievant in this case would depend very much on her priorities going forward. At this point in the process, there are a few distinct questions worth considering:

  • What is the best outcome the grievant can achieve for her own self?
  • Is there further action the grievant can take to alert the faculty at her university to the ways the grievance process fails to protect faculty or to provide them with remedies against harms like harassment?
  • Is there further action the grievant can take to draw public attention to the ways the grievance process failed in this particular case, providing administrators with an incentive to remedy this particular situation and/or to fix the grievance process?

Salvaging a good outcome (professionally and financially) for the grievant is a distinct goal from trying to fix a broken system, and both are distinct goals from making transparent to the public the kind of abdication of responsibility that the university policies seem to have made possible in this case. There may be ways to achieve (or move closer to) all three goals simultaneously, but it’s not a sure thing.

Sol’s read on the situation is that, in the aftermath of this five year grievance process, the grievant will probably not be able to get another position in academic science. If her hope was to secure such a position, there might be a good argument for being cautious in pursuing legal remedies — getting a reputation as “litigious” or a “troublemaker” could make the job hunt harder. (There’s a worry that rides shotgun with the fear that being branded a troublemaker takes one out of contention in academic job searches, namely that the other universities where one might find a job are just as likely to be sites of harassment whose grievance procedures tend to protect the harassers rather than the academic scientists being harassed. Could there be anything more depressing that coming through a five year grievance process, managing to find another academic position in which to start over, and then being caught in a similar situation of harassment with no real hope for relief?)

If Sol is right, and the grievant in this case is essentially out of contention for a job in academic science, there is less reason to fear that pursuing a civil case will wreck her future in academic science. It’s already wrecked. The question then is what a civil action against the university is likely to accomplish.

Here, let me pause to remind you all that I am not a lawyer, and that I do not have a lot of experience to draw on as far as civil litigation goes. Consulting lawyers who do have this kind of experience, especially in pursuing legal actions against universities, would be a very good idea.

That said, the grievant here proved her case to the satisfaction of the grievance committee. The issue seems to be that the grievance committee does not have the power to make the university administration correct the wrong — and that the university administration seems perfectly happy to excuse itself from remedying the situation. I’m inclined to think that the grievant could make the same case in a civil lawsuit, and that this case would be strengthened by the fact that the grievance committee judged that she had proven her case. The big question for a civil trial would be whether the university administration has a legal obligation to correct the wrong here.

If the university does adopt a strategy of trying to delay the lawsuit reaching a courtroom, it strikes me as the sort of situation that might interest local journalists or national journalists covering the higher education beat. One question such journalists might dig into is how much money the university is spending on legal efforts to discourage or delay the lawsuit, and whether this amount of money is less or more than what it would have spent by correcting the wrong as the grievant requested.

In these trying budgetary times, I reckon, administrators need to be ready to account for their spending decisions.

Is the grievant interested in fixing the broken grievance system so that other faculty at the university will not have the same gruesome experience of being wronged, proving they have been wronged, and then having the university opt out of remedying the harm? Given her history with the university, she might well decide that she needs to prioritize her own future and let the university faculty take responsibility for fixing their broken system. But if the grievant is so inclined, she might reach out to other faculty to make them aware of the ways the grievance process could fail them.

Many of us cling to the hope that the bad things that happen to other people are something they somehow brought upon themselves, or else flukes. This is a way for us to tell ourselves that similar bad things won’t happen to us (because we’re being smart, not rocking the boat, playing nice with others, etc.). Potentially, a case like this could be a wake-up call to complacent faculty members — this is an instance where the grievance committee ruled for the grievant and yet nothing was done to remedy the wrong that she grieved. Moreover, it is an instance where the university seems to place the good of the administrators well above the good of the faculty members.

Faculty members might have second thoughts about placing their welfare in the hands of this sort of grievance process. And, unless they have faced an issue that they could not address directly, they may not realize that they are bound by university policy to use this grievance process.

With enough internal pressure from the faculty, the university might well need to revisit the process, either giving the grievance committee the power to institute remedies, or making explicit the requirement that administrators implement remedies to address the wrongs proven to the grievance committee’s satisfaction. (A faculty union might be one way to bring such pressure to bear.)

The bottom line, I think, is for the grievant to be clear about her goals and to choose the actions most likely to advance those goals.

To the extent that those goals include getting the university to change a broken system, my sense is that change is most likely to come when the costs of not changing are judged to be too high. Whether those costs include monetary legal judgments, internal pressure from university faculty, or unfavorable publicity remains to be seen, but I think all of these options should be left on the table.

I welcome the insight of my readers on this situation (especially if any of you have been directly involved in a situation like this as a litigant or a lawyer).

Comments

  1. #1 hibob
    August 27, 2009

    Would lawsuits against any of the people involved in the harassment or in obfuscating the grievance process be possible and/or useful? If nothing else, they might add pressure to the university to settle the claim quickly rather than draw out the process

  2. #2 Peggy L
    August 27, 2009

    Since the university receives lots of federal $$, it is subject to Title IX, which protects faculty as well as students from discrimination on the basis of sex.

  3. #3 Gerard Harbison
    August 27, 2009

    She should sue.

    Moreover, it appears she may have additional grounds for complaint in the time the process took. If this is the institution it appears to be, from the identity of the sender of the email, the Faculty Personnel policies which I found online specify a very tight timeline for the resolution of the dispute, far less than 5 years. Since this is a matter of civil rights law and not merely university policy, there is a legal obligation for the university to deal with the issue.

  4. #4 D. C. Sessions
    August 27, 2009

    Don’t overlook the Department of Labor. From the lectures that $EMPLOYER hammers into us, the DoL does a lot of enforcement on harassment cases. Especially since she has the University’s official finding of fact regarding the case, they’re not going to have much maneuvering room — it’s down to a matter of law, not of conflicting evidence. In cases like that, awards of attorney’s fees aren’t unheard-of.

    Actually, since it also looks like a breach of contract (IANAL, you’ve been warned) recovery of costs isn’t out of the question anyway.

    Finally, as a matter of employment law: in many jurisdictions, employees recover 3x right off the bat, plus interest, and if the case goes to trial and she can convince a jury that the Good Old Boy network will effectively blackball her for standing up for herself then she might get the usual expected career earnings.

    IANAL. I warned you — but the DoL is easy and cheap to ask.

  5. #5 Rob W
    August 27, 2009

    Good response. I’m inclined to say she should sue, because fighting to fix the system seems a worthy goal, and it’s an abstract question to me, so the risks seem worth it. To her – well, it’s her life, and she needs to balance a lot of factors and possibilities for the future, as you discussed. It must have taken a lot of courage and force of will to carry this as far as she has already.

    One bit of advice I can give, as far as being flagged as “litigious” when searching for other positions — she should carefully rehearse her story with a view towards the impression it will give, then work her way into applying for positions by having direct conversations first (not just cover letters to strangers). Hone the networking skills, etc.. I don’t know the details of the experience, but it really sounds like she had no interest in even using the grievance process (and likely won’t hurry into it again, given how shitty this experience has been!) but was forced into it by some truly unpleasant people in positions of power. If she can convey that (with no strong emotion displayed, and extra focus on the aspects of the environment/people that she really enjoyed…) then quickly move on to how she’d like to get back to her REAL goals ASAP… it seems that might help diffuse the problem, as long as she can talk to actual people.

    It also seems to me like a possible positive attribute that she stayed there for so long, trying to fix this problem through all the proper channels, instead of jumping ship at the first sign of trouble.

    This is pragmatism in the face of horrific unfairness, of course; the problem should not be there in the first place. Can’t they be shamed into decent behavior? But there I go again, cheering on other people to fix faraway problems.

  6. #6 David Bruggeman
    August 27, 2009

    There may be someone at the American Association of University Professors who can provide guidance, or an appropriate legal referral.

  7. #7 S. Rivlin
    August 28, 2009

    Janet,

    I would like to thank you for the post and your thoughts on the issue. Likewise to all the commenters. I provided the grievant in the case with the link to your blog.

    Knowing how the university had responded in the past to similar cases and predicting in advance its response in this case, I tend to agree that a sympathetic journalist is a sure way to apply pressure on the university’s administration to resolve the issues quickly. This, at least, has been my experience with this bunch of horse’s asses.

  8. #8 William
    August 28, 2009

    Sue. Find a good civil rights/employment attorney, and sue. Yes, it’s already wrecked. It will take another year to go through the DOL, one can get permission to sue even if they decline to do anything about it, and the filings are public record.

    Don’t do anything media-wise without the approval of the attorney. The Uni may delay, true, but if the case has merit, the attorney will take it on a contingent basis, and then the damages get larger and larger. Also, she can point to “I went through channels” when the uni will accuse her of money grubbing.

    Bottom line, when you gotta start hiring outside counsel, and are looking at reimbursement of legal costs for being obnoxious, things may not take as long as one thinks.

    Finally, get a GOOD, boutique employment attorney, one whose practice is only involved with employment law. Since The grievance committee agreed that the harassing party had used his power of authority to hinder the grievant’s career, including her ability to apply and secure NIH grants, and that the Chairman of the department and the Dean of the medical school did not follow the grievant request to intervene on her behalf. Actually the Chairman and the Dean ignored an action advice by outside experts’ that they themselves had sought and received. should be documented, and if she has written proof of it, this appears to be a slam-dunk. Courts have enforcement powers. When you get backed into a corner like this, and have exhausted going through channels, that’s what you have to do.

  9. #9 AcademicLurker
    August 28, 2009

    Are there any organizations that might provide support in the event of a lawsuit? Maybe the AAUP could point towards some resources. Perhaps some legal group that focuses on sexual harassment and might provide some pro bono assistance?

    I mention this because lawsuits are a punishing drain on time, finances and emotional well being. Going up against a large organization such as a university with only your own individual resources stacks the deck against you from the start.

  10. #10 S. Rivlin
    August 28, 2009

    should be documented, and if she has written proof of it, this appears to be a slam-dunk.

    It is documented and, actually, the grievance committee mentioned that very fact in their findings.

    Unfortunately, her lawyer won’t work on contingent basis. He told her to “put aside” $40,000 as his estimate of how much her legal fees will amount to. BTW, this attorney is inexpensive compared to others in the field and so far has done a very good job. A complicating factor is that the harassing party left the university to another institution in another state, a fact that may elevate the case to a federal one.

  11. #11 D. C. Sessions
    August 28, 2009

    A complicating factor is that the harassing party left the university to another institution in another state, a fact that may elevate the case to a federal one.

    Dunno ’bout the law on that (did I mention that IANAL?) but that might actually weaken her case on the grounds that his being gone is a remedy of sorts.

    Of course, doing something that’s likely to make him radioactive would be good for society. IMHO that’s a bit above and beyond, though — it takes some serious chutzpah to ask someone trying to put her life back together after taking major damage from enemy action to risk it all over again for the off-chance of helping strangers.

    And, yes, this is the academic equivalent of paedophile priests getting shuffled from parish to parish. The big difference is that we at least go through the motions of attempting to protect the victims of the priests. AFAIK in academia they get the Islamic rape victim treatment instead.

  12. #12 daedalus2u
    August 30, 2009

    She should write a book that names the perpetrators and brings all the dirty laundry and skeletons out of the closets.

    Let prospective students and prospective faculty members know the details of how this university protects the perpetrators who abuse underlings. Let alumni know that their donations will be used to fund discriminatory practices. Let those in the system who are being discriminated against now that the grievance process is a joke, a joke that only protects the university and the perpetrators in power. Let potential collaborators of these perpetrators know that this how the perpetrators operate. Let charitable and government funding agencies know that the university allows discriminatory practices.

    I think the goal should be to either reform the university such that things like this don’t happen, or to destroy it so that things like this can’t happen. It is probably easier to destroy it than to reform it.

  13. #13 William
    August 30, 2009

    She needs a better and different lawyer. Christopher Thorman, of Thorman Hardin-Levine in Cleveland is one of the pre-eminent employment lawyers, and may be able to provide a referral. (216) 621-9767. Please redact the names and phone number in the comment, but do pass it on.

    As long as the university as an institution is still there, they have the deep pockets and they are obliged to make it right. Many employment lawyers will take the case on a contingent basis, because most folks don’t have the money to fight a large institution.

    If no lawyer will take the case on contingency, there may be no standing in law, and they don’t think the risk is worth it. But look for another lawyer. From the information that I have, this seems like a clear case, and one of the 75% that go to settlement.

  14. #14 S. Rivlin
    August 30, 2009

    It is probably easier to destroy it than to reform it.

    Not necessarilly! In 1997-1999, I blew the whistle in that university on a scientific misconduct case, which followed with a class-action grievance (although not allowed by the grievance process) against me by a whole department (a majority of the faculty members), who stood by their chairman (a plagiarist) claiming that my interference with their department’s affairs should be punished. The dean of the medical school attempted to pressure the grievance committee to overturn their findings and rulling that were in my favor, luckily, without much success. Nevertheless, that case have completely isolated me at that university and I was black-listed by the administration. I am now retired and the plagiarist is still the chairman of that very department.

    Any faculty member who dares raising her voice against any type of misconduct perpetrated by administrators or faculty members in power is doomed to become an outcast. Writing a book is a small and much too late a solace for a scientist whose career has been destroyed by no fault of her own. I should know, since I did just that.

  15. #15 daedalus2u
    August 30, 2009

    In thinking about it more, writing a book is likely not going to do much. A better approach might be to go to the university’s funding sources. Send a package containing the particulars of the case and the findings and the complete lack of any compensation for the wrong doing to groups of people. I would include the top 100 donors, the president and officers of each of the graduated classes, the board of directors, the faculty. I would also send it to the 50 high schools that have the most students entering the university as freshmen. The 50 universities that send the most graduates there for grad school. Set up a web page. If this is the culture, there are likely a lot of other abused people who played by the rules and got screwed. Make connection with enough of them and the pressure goes up a lot.

    The goal is to make everyone know how crappy the culture is at this University, and that unless that culture is changed, it isn’t a place that anyone would want to send their child to, or fund.

    As long as the material sent is truthful, then there is nothing the university can do in retaliation that they haven’t already done. They can’t sue for defamation because they have to assert that the statements are not true to do so. That would be a SLAPP lawsuit.

    I think a lawsuit is not going to work (IANAL) because the university has no incentive to settle. The lawyers are already on staff, and their fees come out of the general budget, not out of the Department budget. There losses have to be in the millions for them to pay any attention to this. You have to go over the heads of those involved and the only way to do that is via the funding sources and/or costing them students.

    If this isn’t an isolated incident, then destroying the University is the better plan.

  16. #16 S. Rivlin
    August 30, 2009

    daedalus2u,

    The one thing this university and others like it really care about is their “fake” reputation; Research I ranking and the many millions of $ in NIH funding. As long as the dirt stays in-house and away from the eyes of the public, everything is dandy. This is why they will always settle any lawsuit that could expose such dirt. With the particular case in front of us, we do talk about millions of $. The university will hire an outside team of attorneys, since they will never allow their own legal office employees to get involved in a case that the university is in the wrong. They’ll spend several hundreds of thousands of $ on such legal proceedings with the hope that the planittif (and her team) will either run out of money or simply give up due to the amount of time that such cases usually consume. All the other actions you have proposed are good and sound in an ideal world however, this particular faculty wants either her career back or its monetary equivalent such that she could have the rest of her life without fighting a whole institution, especially were the alumni are giving money mainly to support the university’s sports and don’t give a flying F— about the behavior of a few faculty members and administrators. One thing that could help in shortening the length of time of a lawsuit is the involvement of a good journalist and her editor who care about the university and its real reputation enough to devote time and space needed to expose the wrongdoing.

  17. #17 Blair
    August 31, 2009

    From the sounds of it, this academic has had her career destroyed. As such I would be going towards the “make a ruckus” approach.

    As someone who is not a huge fan of litigation (as it is slow and costly) I would start with the “shout from the rooftop” approach. The local media, my local representative of whichever level of government holds the purse strings and most importantly a few major media outlets would all be hearing from me. In particular I would be looking at major media outlets serving my area. Remember to do your research, don’t just call them up blindly, establish who in the media organization is going to be the most sympathetic and head that way. This case has all the elements of a good story, the big, faceless University, kafkaeske rules and “evil doers” being given cover to misbehave.

  18. #18 daedalus2u
    September 2, 2009

    Just thinking out loud, but I think there are representations made in each government research contract that the university adheres to certain non-discriminatory practices. If those representations are shown to be false, the government could (in theory) cancel and/or claw back some of the money that was awarded the way it does when there is other fraud.

  19. #19 S. Rivlin
    September 2, 2009

    To Janet and all the commenters who took the time to weigh in on this case, I thought you would be interested in an opinion the grievant received from a lawyer friend of her (in another state) who has followed the case closely:

    “Dear …..: It is disappointing that the provost was not more responsive to your letter, and I would expect you are correct that your chairman will probably follow her lead. It is hard to tell if she was acting on the advise of counsel for the university, but I expect she was. As for whether you should pursue a court case, I am not in a good position to assess the prospects of a recovery. Federal law would probably allow your harasser to remove any case to federal court, either on the grounds that federal claims were submitted or because your harasser is now a resident of another state, and defendants who are citizens of another state have the option of removing state cases to the federal court. Technically the burden of proof is the same in either court, but most lawyers, including me, find that the federal courts are, generally speaking, more friendly to defendants in cases like this than are state courts. However, your lawyer has done a very good job to date (I suspect you find that hard to accept, given your disappointment, but objectively speaking, it is true), and I think you should probably follow his advice. The alternative is to fold your tent, and let this go, which would also be hard for you to accept. Litigation is always slow, expensive, and frustrating, and only you can decide whether emotionally and financially it is worth pursuing. I think the findings in the grievance process indicate that reasonable judges or juries will be inclined to support you, but the road is not easy. I think you have to ask yourself whether you would regret not seeing this through, whatever the outcome. If so, you should probably go ahead, given that you have already invested lots of time, energy and money in this.”

    My own opinion is that a lawsuit should be file against the university, rather than the harasser, since it is the university that has done and continue to do the wrong, as was found by the grievance committee.