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Wednesday, August 6, 2014

Judge rules UNH contract termination isn’t racial, gender discrimination

J. Daniel Marr

Employment discrimination laws do not protect an employee who is part of a racial minority from adverse employment action. The law protects her from action against her because of a racial animus or a decision being made that, while not based upon racial animus, still has a disparate impact on her because of her race.

Employees of all races still need to perform their jobs in accordance with the legitimate standards of their employers. ...

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Employment discrimination laws do not protect an employee who is part of a racial minority from adverse employment action. The law protects her from action against her because of a racial animus or a decision being made that, while not based upon racial animus, still has a disparate impact on her because of her race.

Employees of all races still need to perform their jobs in accordance with the legitimate standards of their employers.

In the July 29 court decision of Roslyn K. Chavda, Ph.D. v. University System of the State of New Hampshire, the New Hampshire federal trial judge found that Dr. Chavda had presented insufficient evidence that the adverse employment action taken against her was because of illegal discrimination rather than perceived performance deficiencies. The judge granted the University System of New Hampshire – using the acronym UNH for the defendant and the university – summary judgment thereby prohibiting Chavda from proceeding forward on her claims to a jury.

In this case, Chavda, a former assistant professor at the University of New Hampshire, sued seeking to proceed forward to trial with a race and gender discrimination claims as well as a claim for wrongful discharge under the public policy exception to the employment-at-will doctrine. As an initial matter regarding the claim for wrongful discharge, the judge noted that such a claim could be precluded because her employment relationship is that of a tenured-track professor permitted reappointment under the terms of a collective bargaining agreement between the American Association of University Professors and UNH.

The agreement provided that nontenured faculty members, such as Chavda, worked under renewable one-year appointments and were evaluated annually by their department to assess their progress on the path toward tenure. Chavda was eventually removed from a tenured track and given a one-year terminal contract for the 2011 academic year after having worked at UNH as an assistant professor since 2006. The judge first noted that a wrongful discharge claim under common law public policy exception to the employment-at-will doctrine might not be applicable because her employment rights and obligations are defined under the contract; not as an employee at will. Nevertheless, the judge found that the evidence presented by Chavda was insufficient to allow her case to go to a jury to argue that she was discharged for doing something public policy would encourage or refusing to do something public policy would discourage.

As to the discrimination claim, the court noted that Chavda is African-American and that when she was hired, UNH was in the midst of a hiring freeze, yet her Political Science Department was able to get around the freeze and hire Chavda because of her race and UNH’s ongoing efforts to enhance racial diversity on campus. Chavda attempted to use that evidence as a motive for racial animosity by faculty, yet she had no evidence of such racial animus.

Chavda also presented evidence that when she arrived on campus she was pregnant with twins. Her pregnancy resulted in complications for her and twins. The complications forced Chavda out of the classroom for several weeks. Chavda’s primary teaching responsibilities were in the department’s Master of Public Administration program, which was directed by Mel Dubnick. Chavda states that in the spring 2007, Dubnick stated people were angry with her for getting pregnant and not being able to fulfill the plans they had anticipated because of her being out because of pregnancy complications. These communications, however, happened in 2007. For several years thereafter, her contract was renewed and the department’s Promotion and Tenure Committee had recommended the renewal of her contract for several years before the ultimate recommendation that she be removed from tenured track and given a terminal one-year contract.

Chavda argued that when the Promotion and Tenure Committee made its evaluation resulting in her removal from tenure track she was treated differently than three white colleagues of the approximately same position and tenure track. The judge noted that of the two of the three white colleagues, both women, who were granted tenure had publication records that were markedly better than Chavda’s, and Chavda’s student evaluations were consistently lower than those similarly situated junior faculty members. Chavda asserted that unlike a hostile environment where racial epithets were hurled, or she was directly impugned due to her childbirth, the academics exercised their bias in the confines of the Promotion and Tenure Committee. She also stated that unlike the typical situation where those creating a hostile atmosphere at least had the courage to do so directly, these academics chose to use the Promotion and Tenure Committee to hurl venom and then couched their conclusions in an antiseptic verbiage of annual reviews, largely leaving Chavda to guess why her efforts to improve were fruitless.

The judge found that those conclusory statements were not backed by the evidence, which revealed that the perception of Chavda’s performance deficiencies were the reasons why she was denied tenure and not because of child birth or because of her race. Being published in that college professor’s area of study and having positive student evaluations are part of the legitimate standards a school of higher education places upon its faculty and holding faculty to those standards is legal.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan P.A. whose legal practice includes counseling businesses and businesspeople, including professionals, on a variety of legal issues and advocating on their behalf. Marr is licensed and practices in New Hampshire and Massachusetts. He can be reached at dmarr@nashualaw.com.