2011 OSU Leadership Academy 24 February 2011

1. 2011 OSU Leadership Academy24 February 2011 Legal Issues Related to Academic Appointments Meg Reeves, General Counsel Angelo Gomez, Director – Office of Affirmative Action and Equal Opportunity Charles Fletcher, Associate General Counsel Becca Lynch, Assistant General Counsel

2. Scenario #1The Underperforming Tenure-Track Faculty Member A Department Head seeks guidance from the Dean about Dr. Z, who is an untenured faculty member in 3rd year at OSU. Upon inquiry from the Dean, certain facts arise. The Department Head is not sure what Dr. Z’s position description says. Performance evaluations have been satisfactory for research, teaching and service, though actual performance has been poor (the DH values a positive, collaborative working environment, and he’s been hoping Dr. Z would improve). Mid-term review is coming up. Recently, there has been anonymous input from some students that Dr. Z is terrible in the classroom, including comments on the student evaluation of teaching forms that are quite disturbing in their detail. Other students have come to the DH to complain about Dr. Z, but they don’t want Dr. Z to know they have complained. DH would like to simply “terminate” the faculty member now.

3. Scenario #1 Key Points • Non-renewal during the probationary period is an option with non-performing untenured faculty. • Understand the position description as the underlying metric against which faculty are measured. • Be honest and forthright in reviews of faculty. • Anonymous or confidential input from any source may not be used to evaluate faculty, except for tabulated reports of SET’s.

4. Scenario #2The Underperforming Tenured Faculty Member As in the previous scenario, the Department Head approaches the Dean about an underperforming faculty member, except this individual is tenured. The DH reports that the faculty member has had poor scholarly performance for years, routinely receives sub-par student evaluation numbers, and does not engage in university or college service. The annual reviews have been a mixed bag of satisfactory and unsatisfactory evaluations. The DH wants to know from the Dean what can be done.

5. Scenario #2Key Points • Annual Reviews are important, even for tenured faculty, and should be honest and forthright. • Post-Tenure Review (PTR) serves both to rehabilitate underperforming tenured faculty and to ensure that the university’s commitment, in the form of tenure, is reciprocated by the faculty member through continued excellence. • Except in cases of serious malfeasance, PTR should normally precede any sanction for cause, greater than a reprimand, against a tenured faculty member.

6. Scenario #3Lack of Collegial Behavior by Faculty Member Department Head reports to Dean that faculty in the Department are complaining that tenured Professor X is “harassing” them by sending long emails, sometimes several in a day, ranting about this or that within the College, calling them out by name, and refusing to stop despite repeated requests by individual faculty. In addition, Professor X is haranguing them in the halls, being disruptive in faculty meetings, and talking negatively about them to students.

7. Scenario #3Key Points • If you think this might rise to the level of unlawful harassment or if someone lodges a complaint with you that this is unlawful harassment, contact the Office of Affirmative Action. • Not all unpleasant behavior in an academic setting can be prevented. Part of being an administrator in a university involves developing people skills to deal with unpleasant colleagues in a marketplace of ideas. • Be mindful of academic freedom and first amendment concerns of others, as well as the limits of those freedoms. Context matters.

8. Scenario #4Grievance Procedures Due to unexcused failures to meet a number of classes over the course of the previous year, a faculty member was denied a merit raise and given a letter of warning by the Department Head. The faculty member has given the Department Head a letter grieving both the denial of the raise and the letter of warning. The Department Head has taken the letter to the Dean and asked what to do with it. 

9. Scenario #4Key Points • Not all complaints by faculty members are grievable under the OSU grievance procedures, but those that are grievable must be handled in accordance with those procedures. • If you receive something that looks like a grievance, contact the Office of the General Counsel for guidance going forward. • Complaints to Affirmative Action and Equal Opportunity claiming discrimination may also be grievable, but the complainant has to choose which course to follow and may not pursue both simultaneously.

10. Scenario #5Discrimination, Disability, and Retaliation Department Head reports to Dean that a faculty member with a long-term illness has been asking for various accommodations (work from home; relief from schedule, etc.). The Dept. Head initially granted some of the requests but is now denying them all because the department can no longer afford the loss of the teaching FTEs. The Head also thinks the requests are unreasonable and that the faculty member’s “chronic fatigue syndrome” is an excuse for low productivity. The faculty member has already made clear he thinks the denials were discriminatory based on his “disability.” Now the DH wants to notify the faculty member that he will not be renewed, but is concerned about a possible retaliation claim.

11. Scenario #5Key Points • Think possible disability for any significant impairment or illness, and get guidance early on how to manage. • Retaliation is interpreted broadly. Mishandling a claim of discrimination could lead to a credible retaliation claim even if the original claim of discrimination is not credible. • Administrators should always be responsive to claims or concerns of discrimination or retaliation. Don’t just ignore. • Contact OAAEO for assistance.

12. Scenario #6The Real World – Everything but the Kitchen Sink Professor B is an untenured faculty member in the fourth year of his probationary period. His performance evaluations have been satisfactory, but they do not accurately reflect his actual performance. In fact, his performance has been unsatisfactory in all aspects of his work. His Department Head has not wanted to discourage him by giving sub-standard evaluations. But as time goes on the DH is less and less optimistic that Dr. B will be successful in his bid for tenure. So the DH decides that she will need to be more forthright in Dr. B’s fourth year PROF.

13. Scenario #6 – The Real World, Cont. Dr. B has been absent from work many times since he’s come to OSU because of a medical condition, sometimes for a couple of weeks at a time. To the DH’s knowledge Dr. B has not asked for any special treatment because of the medical condition, except of course that the DH has had to cover Dr. B’s classes, or get someone to cover them, on multiple occasions. The DH believes she has done all that is reasonable to accommodate Dr. B’s medical condition. Dr. B, however, believes he has been treated unfairly because of his medical condition. As an example, he did not get a committee assignment he requested, and he believes he did not get the assignment because his medical condition caused him to miss too much work.

14. Scenario #6 – The Real World, Cont. A few days before the DH meets with Dr. B to discuss his negative performance evaluation, the DH learns that Dr. B has filed a complaint with the Office of Affirmative Action and Equal Opportunity, claiming discrimination based on disability. The DH is surprised by this, and asks the Dean for guidance as to whether she should go forward with the negative performance evaluation.

15. Scenario #6Key Points • Personnel matters are rarely straightforward; they typically involve multiple overlapping issues • Timely, honest and forthright performance evaluations are the best defense to a claim of retaliation • Be alert to disability issues, even if the employee isn’t using the term “disability” or “accommodation”

16. Resources • Employment • Board of Higher Education rules on conditions of service, including appointments, tenure, reviews, termination, leaves, outside employment, etc… - OAR 580-021-0005 et seq - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_580/580_021.html • OSU Faculty Handbook - http://oregonstate.edu/admin/aa/handbook/ , including promotion/tenure guidelines at http://oregonstate.edu/admin/aa/handbook/promo.html, post-tenure review at http://oregonstate.edu/admin/aa/handbook/postten.html , and periodic review at http://oregonstate.edu/admin/aa/handbook/periodicreview.html • OSU Human Resources policies/procedures (site currently under construction, check back soon) - http://oregonstate.edu/fa/manuals/ohr • Board of Higher Education Internal Management Directives on staff and faculty personnel, including post-tenure review, outside activities and compensation – IMD 4.101-4.200 - http://www.ous.edu/about/polipro/files/IMD%201-08.pdf • Discrimination • Board of Higher Education rules on discrimination – OAR 580-015-0005 et seq. - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_580/580_015.html • OSU Office of Affirmative Action policies - http://oregonstate.edu/affact/policies • Grievance Procedures • OSU rules on faculty grievance procedures – OAR 576-050-0010 et seq. - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_576/576_050.html • OSU Office of Affirmative Action complaint procedures - http://oregonstate.edu/affact/procedures

17. More Resources • Student Records • FERPA – Federal Family Educational Rights and Privacy Act, which protects the disclosure of any document with personally identifying student information and gives students the right to access any such document (even emails, etc…) *Note that letters of reference are not “confidential” unless the student signs a FERPA waiver of right of access. http://oregonstate.edu/dept/computing/train/ferpa/ • Board of Higher Education rules on Student Records – OAR 580-013-0005 et seq - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_580/580_013.html • OSU rules on Student Records – OAR 576-020-0005 et seq - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_576/576_020.html • Faculty Records • OSU rules on confidentiality and use of faculty records – OAR 576-003-0000 et seq - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_576/576_003.html • OSU Faculty Handbook on faculty records - http://oregonstate.edu/admin/aa/handbook/records.html • Public Records Requests • OSU rules on public records – OAR 576-004-000 et seq - http://arcweb.sos.state.or.us/rules/OARS_500/OAR_576/576_004.html • OSU procedure for public records requests - http://oregonstate.edu/leadership/sites/default/files/public-records-requests-4-10.pdf