Posted on May 15, 2009 by Lisa Williams

Washington Court of Appeal Upholds Separation Agreement Between College and Tenured Professor

In an unpublished opinion, Division Three of the Washington Court of Appeals dismissed all claims made by a former tenured professor of Columbia Basin College. The parties executed a separation agreement containing two separate provisions where the professor agreed that he released all claims against the college. Despite this language, the professor filed litigation after the college took disciplinary or adverse employment action against three faculty members who were plaintiff's former colleagues.

After reviewing the separation agreement, the Court concluded that it was unambiguous and precluded plaintiff from suing the College. The Court also upheld the lower court's award of attorney fees and sanctions based on the frivolous nature of the litigation. The text of the full opinion can be found here.

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Posted on March 18, 2009 by Greg Shelton

WA Court Upholds Sanctions Against District in Union Dispute

The Highland School District has been sanctioned in excess of $18,000 despite the fact it ultimately prevailed in an arbitration against the Highland Education Association (the “Union”). The dispute arose after the District declined to renew the coaching contracts of two teachers due to unrelated instances of classroom misconduct. The Union filed grievances and sought arbitration because the teachers had been disciplined pursuant to the parties’ labor agreement. The District then filed a lawsuit seeking to stop the arbitration process. The trial court dismissed the lawsuit and sanctioned the District $18,000 for bringing a frivolous claim.

Washington strongly favors arbitration of labor disputes. The collective bargaining agreement between the District and the Union stated that the “arbitrator will decide all substantive and procedural arbitrability issues.” The court reasoned that because the parties agreed to leave the issue of whether a matter is subject to arbitration to the arbitrator, the District’s initiation of the lawsuit seeking to resolve that very issue was frivolous. Accordingly, under Washington law, the trial court had the authority to require the District to pay “the reasonable expenses, including fees of attorneys, incurred in opposing” a frivolous lawsuit. The District was charged another $705 in attorneys fees after seeking reconsideration of the sanctions ruling.

The Union appealed the award of attorney fees, arguing that the trial court should have used a lodestar method of computation rather than awarding the fees actually incurred by the Union. Under a lodestar method, the court essentially considers a reasonable hourly rate for a reasonable number of hours worked. Oftentimes, an additional adjustment will be made to the lodestar figure to account for the risk factor of a contingency fee, a particularly complex or difficult case, or a particularly skillful performance of counsel. The Court of Appeals a determined that the trial court had broad discretion to fashion an award, and held that it was proper in this matter to limit the award to the fees actually incurred.

A copy of the decision can be found here.
 

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Posted on February 24, 2009 by Greg Shelton

Public School Employee's First Amendment Speech Rights Present a Mixed Question of Fact and Law

Posey v. Lake Pend Oreille Sch. Dist., 546 F.3d 1121 (9th Cir. 2008)

Plaintiff, a former security specialist for an Idaho high school, met several times with the principal to express his concerns about student discipline and safety issues, including ongoing drug and weapons violations. Plaintiff then composed and delivered a letter to the school district’s chief administrator and other school administrators. Plaintiff wrote the letter at home, with his own resources, on his own time, and of his own initiative. Thereafter, plaintiff’s job was eliminated and he was not rehired into a newly consolidated position. He brought a lawsuit against the school district claiming retaliation in violation of the First and Fourteenth Amendments to the United States Constitution. The U.S. District Court for the District of Idaho granted summary judgment on the grounds that, as a matter of law, the speech in question had been spoken/written pursuant to the plaintiff’s job responsibilities and as a public employee, it was not constitutionally protected.

The Ninth Circuit reversed the decision, finding that the inquiry into whether a public employee’s speech is protected by the First Amendment is not purely a legal question but presents a mixed question of fact and law. The Ninth Circuit made clear that the inquiry that the court must undertake in a First Amendment retaliation claim is to first determine whether the expressions in question were made by the speaker upon matters of public concern; and second, whether the State actor lacked adequate justification for treating the employee differently from any other member of the general public. Both questions may be determined as a matter of law by the trial court, and if the answer to both questions is affirmative, the court should then consider whether the plaintiff spoke as a private citizen or a public employee. The question of the scope and content of a plaintiff’s job responsibilities is a question of fact. Therefore, if there are genuine and material disputes as to the scope and content of the plaintiff’s job responsibilities, the court must reserve judgment on the third prong of the protected status inquiry until after the fact finding process. Accordingly, the Ninth Circuit reversed the grant of summary judgment and remanded the case to the District of Idaho for further proceedings.
 

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