SEPTEMBER 9, 2009 2:58PM

Would a University Fire Employees to Cover Its Ass?

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Cross Posted at Legal Schnauzer
My former employer, the University of Alabama at Birmingham (UAB), recently laid off seven employees in its communications group, formally known as Public Relations and Marketing.

That happens to be the area where I used to work. At the risk of sounding self-obsessed, I think these layoffs raise a question that is worth pondering: Are they connected to my unlawful termination?

To some, that might sound like a ridiculous question. But if you understand the nature of employment lawsuits--and if you grasp just how grossly UAB violated federal law in my case--you see that the question might not be so ridiculous after all.

This takes some "splainin," but I hope you will follow me for a Schnauzer "teachable moment" in employment law.

UAB Public Relations and Marketing includes five groups--Media Relations, Creative & Marketing, Web Communications, UAB Reporter (the faculty and staff newspaper), and Periodicals. I worked all of my 19 years under this umbrella, seven with the UAB Reporter and 12 with Periodicals.

Everyone in the department answers to associate vice president Dale Turnbough, who I fondly remember as the person who signed my termination letter.

Highly placed sources tell Legal Schnauzer that three of the folks laid off--Doug Gillett, Cindy Cardwell, and Claire Burgess--were from Periodicals. Claire was hired after my firing, so I never met her. But I worked closely with Doug and Cindy for five or six years and consider them to be wonderful people and coworkers. UAB's loss is definitely going to be someone else's gain when it comes to Doug and Cindy. This might not help in their job searches, but I would give both of them glowing recommendations if I had the opportunity--the Legal Schnauzer "seal of approval," if you will.

As for the others laid off, there were two each in Media Relations (Deb Lucas and an administrative assistant I didn't know) and two in Creative & Marketing (Martha Bruce and Mike Turner).

Now, let's analyze this situation: It's clear that UAB and all other state entities are struggling in the Bush recession. UAB announced in early June that it was eliminating 245 jobs in its Health System.

So a story about more layoffs at UAB might not seem like a shock. But the Birmingham Business Journal article about the communications layoffs does not mention lost jobs anywhere else on campus.

And let's consider the scope of these layoffs in Public Relations and Marketing. If my memory is correct, the group has about 50 to 60 employees. The recent layoffs represent a staff reduction of more than 10 percent.

I'm sure other UAB departments have tightened their belts in various ways. But 10-percent staff cuts around the campus? If that was going on, I think it would be reported in the mainstream press.

So why the big hit in Public Relations and Marketing? And why was Periodicals, my old group, hit particularly hard. When I was unlawfully terminated on May 18, 2008, the group had 11 employees. According to its current Web page, it has nine employees, but that hasn't been updated. After the layoffs, it's down to six.

That's almost a 50 percent staff reduction over a 15-month period of time. Heck, the place is falling apart without me!

Yes, the economy is rough, but I wonder how many other UAB offices of any size have seen that kind of staff reduction during the recession. My guess? Zero.

I worked at UAB for 19 years and never heard of a 50 percent staff reduction in an office that wasn't on its way to totally being phased out. (With the critical role Periodicals plays in fund-raising and alumni support, which becomes even more important in tough economic times, it's hard to believe the office is being phased out.)

At the time I was terminated, Periodicals appeared to be the primary moneymaker in the Public Relations and Marketing service center. (What's a service center? It's essentially a fee-for-service business within an institution, one that is governed by a web of federal regulations that I don't begin to understand. The UAB Print Plant and Bulk Mail are other examples of service centers, which are also called cost centers.)

So what's really going on?

Well, let's examine a post I wrote on July 8 titled "Deception and Discrimination Continue at UAB." It contained two passages that might be worth a second look. The first:

About three weeks ago, a federal jury in Birmingham found that UAB discriminated against a former medical resident from India, based on her Hindu religion. That is one of several cases involving alleged discrimination against international medical residents. And those could raise issues about federal funding at UAB, which generally is predicated on a commitment to nondiscriminatory practices. Much more on that in future posts.

OK, let's look at the second passage, which deals with my own case:

Age and gender discrimination, conspiracy, retaliation, wrongful termination, and defamation also appear to be present in my case, which currently is under investigation by the Equal Employment Opportunity Commission (EEOC). I intend to file a lawsuit against UAB (the University of Alabama Board of Trustees is the legal entity), along with a number of folks acting in their individual capacities, once that investigation is completed.

What happened two days after that post was published? The layoffs of seven people in Public Relations and Marketing came down.

Is that a coincidence? Maybe. Maybe not.

But let's consider those two passages again. The first refers to a discrimination lawsuit brought against UAB by Dr. Seema Gupta, a former medical resident from India. The case went to a jury verdict, and Dr. Gupta prevailed on her claim of discrimination based on her Hindu faith. UAB prevailed on two other key questions: (1) Did the university discriminate against Dr. Gupta based on national origin; and (2) Did the university's actions result in a "constructive discharge" of Dr. Gupta?

I was on hand for almost the entire Gupta trial, and we will go into much more detail about it in upcoming posts. The case speaks volumes about how UAB discriminates against its employees and students--and then shamefully tries to cover over the discrimination in court. While Seema Gupta proved that UAB discriminated against her on one ground, the case as a whole was a gross miscarriage of justice--and we will be showing exactly why we came to that conclusion.

For now, let's move on to our second key passage. It simply raises the issues that are present in my legal case against UAB (along with First Amendment violations). None of it should be a surprise to anyone at the university. Heck, their own grievance committee found I should not have been terminated, so we're not dealing with state secrets here.

But here's my point: Did that July 8 post, or perhaps something else in that general time frame, cause someone at UAB to slap his or her forehead and say, "Holy crap, we're going to have to figure out a defense in this Shuler case, and we don't have one."

What do unethical people, like some of the ones currently running UAB, do in such a situation? They create a defense after the fact--ex post facto, if you will.

I can hear some of you now: "Schnauzer, surely UAB wouldn't pull such a disgusting stunt." Oh yes, they would. (And don't call me Shirley--an inside joke for you fans of Airplane!)

How do I know? I saw them try it in the Gupta case, another instance where UAB really did not have a defense.

How could this happen? Remember this critical word regarding employment-discrimination lawsuits: comparators. That refers to people who are comparably situated, but were treated in a more favorable way than the complainant.

To put it in non-legal terms, let's consider this story that is told by a Birmingham employment lawyer: A woman came to him with a potential case. "The problem is my boss," she said. "He treats me terribly."

"How does he treat the other employees?" the lawyer asked.

"Oh, he treats all of us terribly."

The lawyer had to suppress a laugh. "Ma'am, your problem is that you work for a jerk. But you don't have a discrimination case."

In so many words, one defense to a discrimination case is to say, "Hey, we didn't discriminate against Joe. We treat everybody like crap--regardless of race, gender, age, or what have you."

It sounds absurd, but such a defense might actually gain some traction in court. Could UAB be trying to fashion such a defense, way after the fact, in my case?

Consider the recent layoffs: It included men and women, covering the gender base; it included people over 40 and under 40, covering the age base; it covered my old group, Periodicals, but also included folks from the other groups, making it look like an across-the-board "lay off."

And get this: By nailing Doug Gillett, they got rid of the most obvious comparator on my age and First Amendment claim. As I've reported before, Doug had actually blogged and conducted political activities at work, a clear violation of university policy and probably state law. He was about 25 at the time, and received only a warning--which I fully supported; Doug's a great guy who didn't mean any harm, and I was pleased that he was not fired.

I, on the other hand, did not blog at work, according to UAB's own witness at my grievance hearing--and did not violate any policy. But I was 51 at the time, and I got canned.

So try to wrap your mind around this question: Did UAB recently cheat seven people out of their jobs in an effort to cover its ass for the unlawful behavior in my case?

"Ridiculous," you might say. I would tend to agree, in theory. Such a scheme should have no impact on my case. For one, I imagine case law frowns on after- the-fact efforts to paper over discrimination. Two, I was terminated, as opposed to a layoff for budgetary reasons, so there is no comparison between the two outcomes--no matter how UAB might try to spin it. I doubt that a layoff even is considered an "adverse job action" under the law; a termination most certainly is.

But in the real world, I've seen UAB take desperate and absurd steps when it has no defense in a discrimination case. In the Seema Gupta case, I saw an attempted cover up that would have made Richard Nixon proud.

If the EEOC manages to complete its investigation of my case in this lifetime, and I am able to proceed with a lawsuit, it will be interesting to see if UAB tries to use these layoffs as some kind of warped defense for its discriminatory actions against me. If it does, that would indicate that these weren't truly "layoffs" at all; they were simply an ugly and despicable legal ploy.

At one time, I would have said that UAB wouldn't be capable of firing seven people just to cover its own ass. But with the current administration . . . I wouldn't put much of anything past them.

On A Related Subject:

Some Strange Wheels Are Turning At An Alabama University

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