Paul L. Caron

Wednesday, September 13, 2017

Sixth Circuit Rejects Law Prof's Claim That 'Satanic' $666 Merit Pay Raise Was Retaliation For His Union Activities

Cleveland StateFollowing up on my previous posts (links below): Lifter v. Cleveland State University, Nos. 16-4084/4086 (6th Cir. Sept.12, 2017):

This is a First Amendment retaliation case. Married plaintiffs Sheldon Gelman and Jean Lifter were employees of the Cleveland-Marshall College of Law. When, after the 2008 financial crisis, the law school faced mounting pressure to trim class sizes and reduce enrollment, Gelman, a tenured professor, spearheaded a successful union-organizing campaign among the law faculty. The following spring, Gelman and several other pro-union faculty received a low and allegedly symbolic $666 merit raise. Just over a year later, Lifter’s employment was terminated. Both filed claims against the university and law-school dean Craig Boise under 42 U.S.C. § 1983, alleging that Gelman’s raise, his being deprived of committee appointments, and Lifter’s termination constituted retaliation for Gelman’s protected First Amendment conduct. The defendants filed a motion for summary judgment, which the court granted. The plaintiffs appeal the district court’s decision, and the defendants have filed a cross-appeal. For the following reasons, we affirm the district court as to Gelman, dismiss Lifter’s claim for lack of standing, and dismiss the defendants’ cross-appeal as moot. ...

Gelman states in his complaint that CSU retaliated against him for exercising his First Amendment rights “by reducing the size of the merit raise to which he was otherwise entitled, by depriving him of faculty committee appointments, and taking other adverse action against him.” Construing the facts in the light most favorable to Gelman, he cannot show that his unionorganizing activities were a substantial or motivating factor in these alleged injuries.

Gelman first argues that Boise retaliated against him by failing to appoint him to several law school committees, as Boise had done previously. ... Taken in conjunction with Gelman’s tepid support for his claim, which consists of nothing more than the temporal proximity between his union organizing and the loss of his committee appointments, no reasonable juror could conclude that Gelman’s lost committee appointments were the result of his union organizing.

Gelman next argues that, notwithstanding his committee appointments, Boise retaliated against him by awarding him only a $666 raise. He advances two related arguments on this point: 1) that his raise of $666 was an intentional invocation of the biblical “mark of the beast” and was intended to punish him and other union organizers; and 2) that under Boise’s objective metric, he deserved at least a $3,000 merit raise. Neither argument withstands the defendants’ motion for summary judgment.

First, there is no material issue of fact as to how Boise reached the $666 figure. After ranking the law school faculty based on objective, self-reported indices of performance, he divided the faculty into three performance tiers: a $5,000 merit-raise tier, a $3,000 merit-raise tier, and a third “catch-all” tier. After distributing the larger merit raises, Boise divided the remaining merit-raise pool among the third-tier faculty members. Evidence in the record supports Boise’s account that, at least initially, third-tier faculty members were supposed to receive $727, a number that has no biblical significance. Only after the merit pool was reduced, and only after Boise made several minor equitable adjustments to the merit-raise distribution, did Gelman receive a raise of $666. Moreover, the $0 and $666 raises fell on pro-union and antiunion faculty members alike, undermining Gelman’s claim that the raise amount was specifically chosen to send a message to union organizers.

Second, there is no material issue of fact as to whether Gelman deserved a higher raise under Boise’s performance metric. Gelman argues that Boise failed to count two of the three articles that had been published or accepted for publication during the relevant time frame, robbing him of merit points that would have placed him in the $3,000 merit-raise tier. But it is undisputed that the merit raises were based on scholarship completed during the past two calendar years, i.e., 2011 and 2012. Only one of the three articles that Gelman listed was written and published in 2011 and 2012—one of the articles Gelman mentioned was “[p]ublished in 2011, but written earlier,” and the other article was listed as “forthcoming, 2013.” Gelman argues that Boise’s stringent metric—i.e., counting only those articles that were written and published during a given timeframe—is discriminatory because some articles would never count towards a professor’s merit evaluation. Even assuming this is true, nothing in the record suggests that Boise applied this policy solely to Gelman. On the contrary, the record indicates that Boise applied this policy to all faculty members. A flawed policy, if applied to all evenhandedly, could not permit a reasonable juror to conclude that Boise was specifically targeting Gelman or union supporters for punishment. ... Based on the foregoing, there is no issue of material fact as to the motivation behind Gelman’s committee appointments or his 2013 merit raise. Therefore, we affirm the district court with respect to Gelman’s retaliation claim.

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