How Charlotte Law Wrongfully Terminated Half Its Faculty

I have previously written about how Charlotte School of Law recently declared a financial emergency and implemented a “Reduction in Force” or RIF, firing about half the faculty with less than two weeks notice.   

I have now been retained by one former Charlotte Law School faculty member to represent him in a wrongful termination action against the school and have had discussions with several other faculty members about potential representation.  Through these discussions and through documents I have acquired, it has become clear that Charlotte School of Law did not comply with the contractual requirements for a Reduction in Force set forth in the Faculty Handbook, and thus, wrongfully terminated these faculty members.

Each faculty member has a contract, ranging in length from one to five years.  These employment contracts explicitly reference and incorporate the Faculty Handbook as additional binding contractual terms.  The Faculty Handbook current in effect has a detailed section on Reductions in Force, quoted here in full:

2.10.5 Reduction in Force. The contract rights of faculty may be terminated for reason of financial emergency or program discontinuance. “Financial emergency” exists when the financial resources available to the School for instructional services is determined by the appropriate governing board(s) to be inadequate to maintain the level of faculty staffing then in place. “Program discontinuance” means the elimination of a program, concentration, specialization, program area or reduction in the number of course offerings through action initiated by the appropriate governing board(s) or as a result of a loss or limitation of accreditation. The Dean shall from time to time, after consultation with the Faculty, designate the “program areas” of the School. 

 

2.10.5.1 Implementation. Prior to the termination of contract rights of faculty hereunder, the Dean shall prepare and promulgate to the Faculty, a plan for implementation of the reduction in force. The Plan shall at a minimum contain the following elements:

 

1. A detailed description of the facts and circumstances considered and the evidence relied on by the appropriate governing board(s) in determining that cause for a reduction in force exists.

 

1. A detailed description of alternatives to a reduction in force considered by the appropriate governing board(s) and the reason(s) supporting rejection or, if implemented, the effect or projected effect thereof.

 

1. An identification of the programmatic or curricular areas to be impacted and the faculty employed in the described area.

 

1. In the case of a reduction in force due to financial emergency, a description of how the reduction in force will improve the financial condition of the School and a plan for avoiding similar financial circumstances in the future.

 

1. In the case of reduction in force due to program discontinuance, a description of the affect of the program discontinuance on student enrollments and related programs, if any.

 

The Dean shall meet and discuss the plan with the faculty and hold at least one open forum to receive faculty input. The schedule of the meeting and the open forum shall be established by the Dean.

My interpretation of this handbook language is that the Dean must promulgate a written plan to the faculty, meet and discuss the plan with the faculty, and hold at least one open forum to receive faculty input.  The Dean would then consider the faculty input, potentially making changes to the plan, before beginning implementation of the plan by selecting faculty to be terminated. 

But that is not what Charlotte did.  Rather, over the Martin Luther King, Jr. weekend, faculty received an e-mail inviting them to an “All Hands on Deck” meeting on Tuesday, January 17, 2017.  There was no mention of RIF in the e-mail and no advance notice that this was on the agenda.  In the past, “All Hands on Deck” meetings had pertained to bar examinations and efforts to enhance bar passage rates, so many faculty members assumed that the upcoming February bar was the subject matter of the meeting.  At the meeting, Dean Jay Conison and President Chidi Ogene announced that they were declaring a financial emergency and implementing a RIF due to the large decline in enrollment caused by the loss of access to federal student loans.  In response to a question from a faculty member about severance payments, the faculty were informed that they would get two to three months’ salary in severance.  The following day, January 18, 2017, Dean Conison started to notify the faculty members who had been terminated. 

No written RIF plan, if one exists, was ever presented to the faculty. Since the faculty never were provided a plan, they had no opportunity to provide input before the plan was implemented the day after they learned about it.  The information they were provided was not even accurate.  When the terminated employees received their formal severance documents the following week, they found that they were being offered severance equivalent to only one month of their salary, not including benefits.

When I presented this information to Charlotte School of Law, I received a letter from their counsel in response.  Their attorney did not actually deny any of the factual assertions I made.  Rather, after noting that they had “carefully evaluated the allegations stated in your letter,” the letter simply declined to provide any relief, stating “additional compensation is not available.”

Subsequently, I came into possession of a document which provides further support for my claim that Charlotte botched the RIF.  In April 2013, Dean Conison, recently arrived from Valparaiso, and then President Dennis Stone (now President at Florida Coastal) sent a Memo to the faculty and staff of Charlotte Law School.   The memo advised the faculty that they had prepared a reduction in force plan that might need to be implemented due to the “financial circumstances facing legal education generally and Charlotte School of Law specifically.”  A draft of the plan was attached to the memo “for discussion at our meetings with staff and faculty tomorrow.” The draft RIF plan included the following section, entitled “Timeline” that included the following steps:

 1.  Dean gives notice of anticipated RIF per requirements of faculty handbook;

 2. Dean considers feedback from faculty process and modifies process to the extent deemed advisable by the Decision Making Team;

The April 3013 draft RIF plan clearly establishes that Dean Conison was familiar with, and knew how to comply with, the terms of the Faculty Handbook.  It is not clear why he chose not to do so this time. What is clear is that his failure to do so was a breach of the employment contract, and that the terminations under the non-existent RIF plan were wrongful. 

Incidentally, the 2013 contingent RIF plan was never implemented.  Rather, Charlotte School of Law used the threat of a RIF, with its immediate termination of contract rights, to pressure a number of faculty members to take “voluntary” buyouts.  Later that summer, President Stone was moved by InfiLaw to be the President of Florida Coastal, where, in concert with Interim Dean Chidi Ogene (now President at Charlotte) he apparently repeated the same process – threatening a RIF to induce a dozen faculty members to “voluntarily” resign. I don’t know yet if a written RIF plan was actually circulated at Florida Coastal.  If anyone knows, please let me know (or better yet, if you have a copy, send it to me).

Another section of the Faculty Handbook states that “Any faculty members whose contract rights are terminated pursuant to a reduction in force hereunder may file a grievance . . . to determine if the provisions of this Section 2.10.5 have been properly applied and to determine if any other rights of the faculty member have been violated by the termination.” The grievance process includes a hearing before a neutral hearing officer. As a prelude to filing a wrongful termination suit, I have filed a grievance on behalf of my faculty member client and demanded the hearing. 

I will keep you posted on the progress. In the meantime, if any readers have advice or information which may be useful, I invited you to contact me at [email protected].  

Comments

[Doug Richmond]

Forgive me, but what are the damages? If the school could have terminated the faculty members in accordance with its written plan, which would be true so long as "the financial resources available to the School for instructional services [were] determined by the appropriate governing board(s) to be inadequate to maintain the level of faculty staffing then in place," the faculty members' terminations may have been wrongful, but the affected faculty are in the same position they would have been had the school followed the plan.

[Leo]

Why are no funds available? Is because of a lack of tuition income or did the parent siphon off money as happened in Charleston, I believe.

[AnonProf]

I'm glad to see this happening as I think Charlotte has behave reprehensibly in so many respects, and I also have great respect for David Frakt. I do wonder, however, whether he has a conflict of interest in this case given his own past history with InfiLaw. Again, I mean no disrespect.

[David Frakt]

To the person impersonating Derek Tokaz -
Please stop impersonating Derek Tokaz.

[terry malloy]

Conflict or no, Prof. Frakt is on the right side of this. Further, he's outlined his rationale and positions in a clear voice. To require purity feels unreasonable.

[Captain Hruska Carswell, Continuance King]

Aren't these "at will" employees? Does the faculty handbook or pamphlet handed out during the course of their employment constitute a contract? Even a shlepper three bill retail theft lawyer like me knows there are questions here. Educate me. By the way, no worries for these canned faculty members. The greatest jobs president god has ever seen is in charge now.

[David Frakt]

Captain - No these are not at will employees. They have contracts of fixed lengths and generally can only be fired for cause, or as a result of a properly executed reduction in force.

AnonProf - What is your theory that I have a conflict of interest? Generally, conflicts of interest are you when you have two clients who may have conflicting interests, or when you have some personal financial interest that may be adverse to your client. I have carefully reviewed the Florida Rules of Professional Conduct and I have no such conflict. (I also used to teach Professional Responsibility, including here in Florida.) In any event, such conflicts, if they exist, are waivable if fully disclosed to the client. My client is well aware of my "past history with InfiLaw" as you put it. Indeed, my past history with InfiLaw, including my history of publicly critiquing InfiLaw on this website, was one of the major reasons he retained me.

As to Charlotte's claim that there are no funds available, I will believe that when Charlotte files bankruptcy. For the time being, they have enough funds to pay a respectable law firm to defend them, so I guess they have some funds available.

[anoncontractprof]

Doug Richmond - A wrongfully terminated employee is generally entitled to reinstatement with back pay, at a minimum, and potentially other damages. The fact that the employer could have lawfully terminated an employee if they had followed proper procedure is not a defense to wrongful termination and does not mitigate damages.

[Notapersona]

Having your own prior bad experience with an opposing party is not a conflict. Practicing lawyers aren't required to feel neutral about the issues in their cases. I think it's quite appropriate that DF handle these cases if he's so inclined.

[David Frakt]

Dear Readers,

I welcome comments that are respectful and on topic, including comments which may be critical of my ideas or actions. Comments from anonymous commenters with a personal agenda that is not relevant to the thread, or from those who use the cloak of anonymity to make unwarranted personal attacks, or from those impersonating real people, will be removed. Thank you.

[McKinley Morganfield]

Some issues that may need resolution: did the terminated employees sign anything as a condition to receiving the severance pay? If so, the signed documents may include a release of all claims against the employer. I'm not an employment law attorney so I cannot say if those releases are valid. There is certainly economic "duress" argument that might invalidate the releases.

[David Frakt]

McKinley -

Yes, Charlotte law wanted the faculty members to sign a general release in order to get the severance pay. My client refused to sign. All the faculty members that I spoke understood that if they signed and took the money, they would probably be forfeiting any legal claims.

[former prof]

They did a RIF at Coastal in 2013. I wonder if that RIF declaration was also faulty?

[twbb]

Hope you can pierce the corporate veil; when it comes to Sterling Partners I think "deep pockets" is an understatement.

The only potential conflict of interest I can see is if they call you as a witness, though that would be fairly contrived.

[Anon]

Very curious to see what you unearth during discovery

[anon JD/MD]

Given the contempt that Infilaw has for their own students and alumni, I bet that their attorney did not attend one of the Infilaw schools.

["Not Derek Tokaz"]

David,

What would you see as a realistic and positive outcome in this matter? The complaint isn't that the faculty shouldn't have been terminated at all, but rather just that the process was defective. And the claim doesn't seem to be that but for the defective process, the faculty would have stayed.

Are you asking for something beyond a written copy of the plan and a town hall meeting to voice grievances before the exact same faculty members are sacked?

The remedy here isn't that they get their jobs back, it's that they get the appropriate dog and pony show before being terminated. Is there anything to gain other than maybe a few more weeks of pay?

[Victim]

David, God bless you because you are in the right LEGALLY but I have been through this process as a professor at one of the schools you mentioned. I can tell you how this will play out.

1) They will claim that the faculty handbook is not binding. They will also claim that their own contract is nonbinding and thus your clients were at-will (no, I am not making this up, they will claim that their own contract is not a contract).
2) They will force you into arbitration and pick someone highly antilabor as the arbitrator.
3) They will bury you with discovery requests and dig into the medical and personal lives of your clients.
4) The ABA will be useless even though the ABA requirements for law schools also contain provisions protecting professors from this conduct by the law school: this is because the ABA are part of the problem since all the administrators involved are part of the accreditation group which is a huge conflict of interest (I know, I sued the ABA to close the revolving door, and I lost the suit). The only way a school gets accreditation is to hire the ABA consultants, who then go to work at the school as Deans, and that is how the schools magically get accredited. It's a racket.
5) They will have secret files on each of your clients. For example, the Dean will have written a letter to himself, signed by himself, affirming some rumor that a security guard heard from a student about your professor -- and it will be admitted into evidence despite the hearsay rule.
6) It will end in a spitting contest and you and everyone else will be covered in spit.
7) If it does get to Court in NC, the judge will be an idiot who is friends with the lawyers for the school, or who cannot think their way out of a paper bag.

You have no idea what you are up against.