Paul L. Caron

Friday, November 8, 2013

Case Western Dean Files Motion to Strike 'Scandalous' Material From Law Prof's Retaliation Lawsuit Against Him

MitchellFollowing up on my previous posts (links below):   Crain's Cleveland Business, Lawrence Mitchell's Attorneys File Motion to Strike 'Scandalous' Material From Lawsuit Against Him:

Attorneys for Lawrence E. Mitchell [right], the Case Western Reserve University dean who has taken a leave of absence after being sued by a professor for alleged retaliation, have filed an emergency motion asking that a Cuyahoga County judge “strike certain immaterial, impertinent and scandalous allegations and materials” from complaints filed against Mr. Mitchell and the university.

They also assert that Professor Raymond Ku's “irrelevant and salacious allegations” are an outlet for the professor's disappointment about vying for, and losing, a deanship position that went to Mr. Mitchell, dean of the university's School of Law, and “to cover up and distract from his unsatisfactory performance.” ...

The university plans to announce an acting dean as soon as possible. It has identified key university officials to assist the School of Law in areas such as finance, admissions and fundraising, according to a letter sent to law school students on Nov. 6 and signed by Barbara R. Snyder, Case Western Reserve's president, and W.A. “Bud” Baeslack III, provost and executive vice president.

“We believe he made the right decision for the school, as it allows all of you to focus more squarely on the important work of learning — and gives your faculty and staff greater opportunity to concentrate on guiding and supporting you in preparing for your future,” the letter stated. “It also gives the dean the opportunity to concentrate more completely on his own situation. We regret the distractions you have experienced in recent weeks, as well as the sense of disruption this new transition may create.” ...

Late Wednesday afternoon, Mr. Ku's attorney, Mr. Chandra, questioned the merits of the university's investigation. He said Ms. Snyder reiterated in a Nov. 6 meeting with law school faculty — at which Mr. Ku was present — that no retaliation took place.

“You can't claim to be doing an independent review of a situation where university officials ignored every prior complaint, and simultaneously prejudge the result of that review,” Mr. Chandra said an emailed statement.

The university this morning responded directly to that statement: “Even though the university investigated the reports received in 2011, it will undertake an additional review of all of the allegations raised in the lawsuit, including those already investigated, which is standard operating procedure when defending a claim of this nature. This is not the time or the place to litigate this matter. The university respects the legal process, and intends to defend this case vigorously.”

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Prof. Seto -- Isn't the distinction you raise only relevant if there was retaliation of some sort? According to the University, there was no retaliation, and that claim is entirely consistent with what I have observed at the law school.

Posted by: Jonathan H. Adler | Nov 10, 2013 3:45:06 PM

As I understand the law in this area (admittedly not my current area of expertise), there are two types of protected activities. If the person claiming retaliation participates in an investigation, hearing, or lawsuit, he is protected regardless of the validity of the charges at issue. If, however, he merely files an internal complaint, to be protected from retaliatory action he must have a reasonable good faith belief in the facts alleged in his complaint.

If my understanding the law is correct, whether Mitchell engaged in the alleged activities is relevant to Ku's cause of action. If Mitchell actually engaged in the alleged activities, Ku's belief was, as a practical matter, per se reasonable and in good faith.

Posted by: Theodore Seto | Nov 8, 2013 6:31:06 AM