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Citing an exception to the “substantial deference” generally shown an arbitrator's decision, the Eighth Circuit found that a court may overturn an arbitration award where the contract in question violates “well-defined and dominant” public policy. Looking to the MHRA's policy forbidding employers and labor organizations from discriminating against employees because of age, the Eighth Circuit stated that this public policy was clear enough to mandate vacating the arbitrator's decision. In so holding, the court found that, in contrast with the Union's position that this policy should be interpreted consistently with Supreme Court precedent and the Age Discrimination in Employment Act (the ADEA), allowing older workers to be treated more favorably than younger workers, the language of the MHRA was not so qualified and was intended to protect “any worker over the age of majority.” Thus, the Eighth Circuit held that a collective bargaining agreement which creates employment standards based on employee age, whether old or young, will violate the MHRA.

Seventh Circuit Dismisses Medical Professor's Constructive Discharge Claim After His Voluntary Resignation.

The Seventh Circuit has held that a medical school professor who resigned pursuant to a university's investigation into a sexual harassment claims against him could not maintain a claim for constructive discharge in violation of his constitutional due process rights. Levenstein v. Salafsky, 2005 WL 1618819 (7th Cir. Jul. 11).

Dr. Joseph H. Levenstein, a faculty member of the University of Illinois Medical School in Rockford, Illinois and department head of its Primary Care Institute, became the focus of an investigation alleging several incidents of sexual harassment by a student, a colleague and staff members of the university. After both the internal investigation and a subsequent faculty appeals panel resulted in findings that Levenstein had violated the university's sexual harassment policy, and the university's chancellor put him on paid leave and removed him as department head. A faculty committee then decided that rather than revoke Levenstein's tenure, the university should both reassign him and give him an opportunity at rehabilitation. Levenstein, whose new duties required him to review and evaluate the accuracy of medical video tapes, but whose salary did not change, ultimately resigned.

In dismissing Levenstein's due process claim, the Seventh Circuit found that because he resigned and was never fired by the university, Levenstein suffered no deprivation of property. Furthermore, the court rejected Levenstein's argument that, as in the Seventh Circuit's decision in Parrett v. City of Connersville, 737 F.2d 690 (7th Cir. 1984), wherein a police detective resigned after being stripped of his duties and forced to sit in a windowless broom closet all day was considered constructively discharged, he too should be considered constructively discharged because “his working conditions were made so miserable that he was forced to quit.” The court dismissed both the “subjective” test applied in Parrett, under which “only the employee would know how miserable the working conditions made her feel,” and Levenstein's comparison of his employment circumstances to those in Parrett. Instead, the court applied the U.S. Supreme Court's objective test used in Pennsylvania State Police v. Suder, 542 U.S. 124 to ask, “Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?” In light of this objective standard, the court found that a “reasonable” person in Levenstein's position, who is reassigned pending the results of an investigation but receives full pay, would not have been forced to resign, and thus was not constructively discharged. In so holding, the Seventh Circuit distinguished Parrett by noting that in Levenstein's case, he knew that his reassignment, however subjectively long it was perceived, would ultimately end when the investigation was complete.

Eighth Circuit Finds Age Ratio Provision in Collective Bargaining Agreement in Violation of Minnesota Human Rights Act.

The Eighth Circuit has held that a provision in a collective bargaining agreement requiring the employer to maintain a workforce in which at least one of every five workers is at least 50 years old violates the Minnesota Human Rights Act (the MHRA) and cannot be enforced. Ace Elec. Contractors Inc. v. Int'l Bhd. of Elec. Workers Local 292, 2005 WL 1639458 (8th Cir. Jul. 14).

As part of a reduction in force, Ace Electrical Contractors (Ace) terminated a number of employees, including two workers who were over the age of 50. Those two employees, who were members of the International Brotherhood of Electrical Workers Local 292 (the Union), then claimed that their termination violated the collective bargaining agreement and filed a grievance against Ace. Upon entertaining the grievance and failing to reach a determination, the labor-management committee of the Minneapolis chapter of the National Electrical Contractors Association (the NECA) requested an opinion from the Minnesota Department of Human Rights (the Department). Although the Department's opinion clearly stated that the age ratio provided for in the collective bargaining agreement violated the MHRA, the arbitrator decided in favor of the employees, and Ace and the NECA filed in state court seeking to vacate that award. The action was then removed to federal court by the union. The district court followed the Department's opinion in holding that the age ratio provision violated the MHRA, and the Union appealed.

Citing an exception to the “substantial deference” generally shown an arbitrator's decision, the Eighth Circuit found that a court may overturn an arbitration award where the contract in question violates “well-defined and dominant” public policy. Looking to the MHRA's policy forbidding employers and labor organizations from discriminating against employees because of age, the Eighth Circuit stated that this public policy was clear enough to mandate vacating the arbitrator's decision. In so holding, the court found that, in contrast with the Union's position that this policy should be interpreted consistently with Supreme Court precedent and the Age Discrimination in Employment Act (the ADEA), allowing older workers to be treated more favorably than younger workers, the language of the MHRA was not so qualified and was intended to protect “any worker over the age of majority.” Thus, the Eighth Circuit held that a collective bargaining agreement which creates employment standards based on employee age, whether old or young, will violate the MHRA.

Seventh Circuit Dismisses Medical Professor's Constructive Discharge Claim After His Voluntary Resignation.

The Seventh Circuit has held that a medical school professor who resigned pursuant to a university's investigation into a sexual harassment claims against him could not maintain a claim for constructive discharge in violation of his constitutional due process rights. Levenstein v. Salafsky, 2005 WL 1618819 (7th Cir. Jul. 11).

Dr. Joseph H. Levenstein, a faculty member of the University of Illinois Medical School in Rockford, Illinois and department head of its Primary Care Institute, became the focus of an investigation alleging several incidents of sexual harassment by a student, a colleague and staff members of the university. After both the internal investigation and a subsequent faculty appeals panel resulted in findings that Levenstein had violated the university's sexual harassment policy, and the university's chancellor put him on paid leave and removed him as department head. A faculty committee then decided that rather than revoke Levenstein's tenure, the university should both reassign him and give him an opportunity at rehabilitation. Levenstein, whose new duties required him to review and evaluate the accuracy of medical video tapes, but whose salary did not change, ultimately resigned.

In dismissing Levenstein's due process claim, the Seventh Circuit found that because he resigned and was never fired by the university, Levenstein suffered no deprivation of property. Furthermore, the court rejected Levenstein's argument that, as in the Seventh Circuit's decision in Parrett v. City of Connersville , 737 F.2d 690 (7th Cir. 1984), wherein a police detective resigned after being stripped of his duties and forced to sit in a windowless broom closet all day was considered constructively discharged, he too should be considered constructively discharged because “his working conditions were made so miserable that he was forced to quit.” The court dismissed both the “subjective” test applied in Parrett , under which “only the employee would know how miserable the working conditions made her feel,” and Levenstein's comparison of his employment circumstances to those in Parrett. Instead, the court applied the U.S. Supreme Court's objective test used in Pennsylvania State Police v. Suder , 542 U.S. 124 to ask, “Did the working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?” In light of this objective standard, the court found that a “reasonable” person in Levenstein's position, who is reassigned pending the results of an investigation but receives full pay, would not have been forced to resign, and thus was not constructively discharged. In so holding, the Seventh Circuit distinguished Parrett by noting that in Levenstein's case, he knew that his reassignment, however subjectively long it was perceived, would ultimately end when the investigation was complete.