SINGLETON VS. REGENTS OF THE UNIVERSITY OF CALIFORNIA.
KRISTINA M. MURCH VS. UCSF
Tina Murch was an administrative sta. member in the UCSF School of Pharmacy for more than 17 years when her department terminated her employment on May 3, 2001 through medical separation. After health problems and disabilities caused Murch to request accommodations under the Americans with Disabilities Act (ADA), including medical leave, a job transfer, and a reduced appointment, her department took aggressive action to retaliate against her. Murch filed complaints with both the federal government Equal Employment Opportunity Commission (EEOC) and the state government Department of Fair Employment & Housing (DFEH) charging disability discrimination and retaliation. Her case never became a lawsuit and was instead resolved through investigation by both agencies.
The Investigations
The EEOC, which investigated incidents prior to Murch´s termination, found evidence of "co-mingling," a breach of medical privacy. Their investigators confirmed that confidential medical information about Murch was stored with her personnel file, a violation of federal law. The EEOC also found evidence that Murch´s medical information was improperly accessed by School of Pharmacy and Labor Relations staff. Despite these findings, the EEOC failed to charge UCSF with a formal violation of "co-mingling" and deferred action on the case to the DFEH.
The DFEH, which investigated the events surrounding Murch´s termination, found evidence of disability discrimination and retaliation, including violations of the ADA and the California Fair Employment & Housing Act (FEHA). Although UCSF argued that they bent over backwards to accommodate Murch´s disabilities, the DFEH maintained that UCSF did not act in good faith to accommodate her and instead fought long and hard to get rid of her.
On March 14, 2003, the DFEH called UCSF to a "conciliation meeting" where they confronted UCSF with the results of their investigation. After learning that the DFEH found violations of the law and intended to take legal action on Murch´s behalf, UCSF agreed to a settlement.
The E-mail Evidence
The DFEH subpoenaed confidential e-mail documents from UCSF, consisting of approximately 100 memos between top-level administrators in the School of Pharmacy and Labor Relations. These e-mail memos proved unequivocally that the School of Pharmacy conspired to force Murch out of her job, and that Labor Relations provided direct advice on how they could block her use of University and ADA benefits.
The DFEH investigator cited two especially damning e-mails as evidence of this conspiracy. Dated April 20 and May 7, 2000, a full year before Murch was terminated, these e-mails were written by one of the directors of Labor Relations to four managers in the School of Pharmacy, and copied to three other managers. The director addressed Murch´s request for medical leave by cautioning the School to limit her leave to the 12 weeks provided under the federal Family and Medical Leave Act (FMLA). The director alerted Pharmacy to look into University Policy 43D, to see if they could find a loophole and deny Murch the additional 12 weeks of leave provided under that policy. The director´s tone and intention are unmistakable:
Tina is entitled to 12 weeks or 480 hours, which she is rapidly
approaching. Unfortunately, PPSM 43D provides "Supplemental
Family and Medical Leave."
The language indicates such extension is mandatory. This would add another
12 weeks of leave. Of course, were she to take additional time,
we would have even stronger reasons for recruiting for her position.
From the second memo:
This means that Tina may go away for most of the year,
which is great in the short term, but she will be back
and then you have to deal with her again,
and,
In crafting your plans I would urge you to review PPSM 43
in its entirety. There is a fair amount of leeway in the policy.
The director then warned the School not to allow Murch to take medical leave under the ADA, and used language which implied that her eligibility under the ADA could be challenged:
With regard to the ADA, I know Tina is relying on FMLA, but the
ADA is "forever" and once she exhausts the protections
of FMLA she will be searching for another safe harbour (sic).
So I would like her to know that there are some issues there.
The most damning aspect of the above statements lies in the fact that the director was wrong, there were no "issues there." Not only had Murch previously established her status as a disabled worker under the ADA, she had also previously taken medical leave as an ADA accommodation. In September 1998, long before the contentious period in question, Murch had negotiated a reasonable accommodations agreement with the School of Pharmacy which explicitly listed medical leave as an ADA accommodation. In April 2000, when these e-mails were written, Murch had again requested ADA protection of medical leave. UCSF was therefore caught, in writing, plotting to deny ADA coverage to a disabled employee when the explicit reason cited for denying accommodations was to expedite the termination of her employment.
The Settlement Agreement
Murch´s attorney, Thomas E. Kotoske of Palo Alto, was present at the DFEH "conciliation meeting" and negotiated the settlement with UCSF. The settlement agreement required Murch to withdraw the EEOC and DFEH charges and her unresolved grievances at UCSF, and to give up all rights to file legal charges against UCSF in the future based on her prior employment.
In return, UCSF guaranteed her a part-time job with full benefits upon her doctor´s release to work, if she is able to work prior to her 50th birthday in December 2005. This achieves two of Murch´s objectives; it allows her to return to UC employment so that she can build her pension, and it guarantees that she will receive UC medical and dental benefits for life.
UCSF also agreed to pay Murch $15,000 in back pay to compensate for denial of accommodations, and $10,000 for reimbursement of legal fees.
Finally, Murch had insisted that the settlement agreement omit a confidentiality clause. Her lawyer was successful in removing any language that would have prevented her from speaking out about her case. Murch is thrilled that she can continue to speak out and hopes that by doing so she can help other UC employees.
In the course of fighting her case, Murch obtained extensive help from the offices of California Assemblywoman Carole Migden and State Senator Jackie Speier. Both legislators were concerned about the blatant violations of University policies in the handling of her internal grievances. In June 2002, Assemblywoman Migden had requested confidential documents about the policy violations in the case. UCSF initially agreed to comply, but fought to withhold them. Senator Speier took over the battle to obtain these documents in December 2002, and UCSF finally delivered them to her office in June 2003. These documents will be used as part of a larger study of discrimination complaints at UCSF.
Senator Speier, as Chair of the State Government Oversight Committee, is collecting evidence of misuse of State funds and is very concerned about University expenditures to defeat discrimination cases. Five WAGE members, including Murch, met with Senator Speier´s staff on May 19, 2003 to share their experiences in filing discrimination complaints against UC.
Tina Murch warmly thanks her family, her friends, especially Stephanie Liu, her doctors, therapist and lawyer for all of their fierce and generous support as she fought this long, bitter battle with UCSF. She thanks both Carole Migden and Jackie Speier and their staffs, especially Clay Harrell, Brian Birkett and Susan Brissenden-Smith, for all of their help. She also thanks the courageous women of WAGE, especially Charity Hirsch for her gentle mentoring and patience. She looks forward to a day when UC practices the fair employment policies published on its Web sites, and to a future when UC does not retaliate against employees who file discrimination complaints.
PAT WASHINGTON VS. SAN DIEGO STATE UNIVERSITY
Less than a week after being honored for a third consecutive year as most influential faculty member in the life of a top graduating senior at San Diego State University (SDSU), Dr. Pat Washington was terminated on May 21, 2003 and forced to move from the campus office she has occupied since beginning her tenure-track appointment in August 1996.
SDSU´s termination of Washington, one of only 21 Blacks among the university´s 831 full-time faculty member hired in the 30-year history of SDSU´s Women´s Studies Departmentb
has sparked controversy among academics and activists throughout the nation, many of whom view the action as racially motivated. To date, Washington has won more teaching awards than any of her faculty peers in Women´s Studies, despite being one of the department´s newest members, and has produced four times the number of scholarly articles required for tenure and promotion at the time she was hired. Nonetheless, she was turned down for tenure and promotion after complaining of a racially hostile work environment in SDSU´s Women´s Studies Department, touted as the oldest in the nation.
The termination and eviction, described by Washington supporters as "a supreme example of cold and callous behavior," follows on the heels of successful efforts to lobby university administrators for an earlier arbitration date than originally scheduled. The arbitration was initially set for October 1 and 2, well into the 2003-04 academic year. Due to pressure from Washington´s supporters, which include the Academic Discrimination Advisory Board of the National Women´s Studies Association, Sociologists for Women in Society, the State Conference of NAACP, California NOW, the Center for Lesbian Rights, and the Lambda Letters Project, arbitration is now slated for July 16 and 17.
Attorney Emma Leheny of Rothner, Segall & Greenstone (Pasadena) will represent Washington in the arbitration on behalf of the California Faculty Association. Attorneys Robert Racine, Moises Vasquez, Millie Escobedo, and Miguel Caballero will represent Washington in a separate discrimination and retaliation suit against SDSU and CSU. The Pat Washington Support Committee is accepting contributions to defray Washington´s legal costs. Checks should be made payable to "Pat Washington Support Committee" and sent c/o APICAP, 4776 El Cajon Blvd., Ste. 204, San Diego, CA 92115.
TRACEY A. LEE VS. UCSF COMPREHENSIVE CANCER CENTER
Discovery continues in this case as Lee works to establish the facts regarding the retaliation she suffered for exposing the misallocation of cancer research funds, which were then used to systematically award better hiring packages to males recruited by the UCSF Cancer Center. A jury in San Francisco Federal Court will learn of Lee´s official whistleblower report on the Center´s multiple violations of personnel policies as well as of state and federal laws.
The trial is being rescheduled for late fall 2003 or early spring 2004. Lee continues to seek legal counsel to take the lead in this case and opportunity to expose clear-cut discrimination in the appointment and salary levels of females compared to the males recruited and awarded illegal signing bonuses.
SINGLETON VS. REGENTS OF THE UNIVERSITY OF CALIFORNIA
It is almost five years since this case was filed in December 1998 by six plaintiffs on behalf of the women who work at Lawrence Livermore National Laboratory (LLNL). The plaintiffs allege that the Regents and the directors of the Laboratory have for many years engaged in a pattern and practice of discriminating against women in pay and promotion. Trial is scheduled to start on September 22, 2003. (Because this is a civil case, unless parties mutually agree to extend the date, trial mustb
with some narrow exceptionsb
occur within five years of filing.) WAGE members are invited to attend.
Although Judge Sabraw originally certified the class to include virtually all the women who had worked as regular LLNL employees since 1988, he has subsequently placed severe limitations on the configuration of the class and the manner in which the class claims have to be tried. At this point only about two- thirds of the women employed at LLNL as of December 30, 1996 or later are members of the class who will be entitled to damages. Recently, plaintiffs´ attorneys were required by the court to produce at least one plaintiff from each of the 13 sub-organizations at the Laboratory in order for the women in those organizations (directorates) to be part of the damages class. This was not possible in the brief time allotted, resulting in the exclusion of many women from the class. One plaintiff, Mary Singleton, has been disqualified based on a release she signed when she took the Voluntary Separation Incentive Package offered by the Laboratory in 1996.
At this time there are seven plaintiffs representing six directorates at the Laboratory that are included in the damages class. Although the judge also certified a class of all women employed at the Lab since December 30, 1996 under an alternative legal theory, he decided that no back pay or other damages can be awarded to the class based upon that theory.
The court has also decided that the case will be tried on a directorate by directorate basis, and possibly even by specific job classification categories, in order to reduce it to its smallest components. This appears to be based upon the judge´s belief that it will help the jury determine how to award damages in the case. Plaintiffs´ attorneys advocate trying the overall discrimination issues and then deciding how to mete out awards on an equitable basis. Needless to say, the statistical analysis of salary data is influenced by how the groups of employees are defined. Judge Sabraw has indicated that he is not comfortable with arguments based on statistical analysis and that he anticipates the jurors will also find this to be a problem.
The plaintiffs appealed the trial court´s restrictive rulings on the scope of the class to the Court of Appeal. The Court of Appeal refused to hear the appeal in May, and plaintiffs have asked the California Supreme Court to review the matter. The Supreme Court has not yet decided whether to consider the case, but now could do so any time. Meanwhile there has been a resumption of mediation talks between plaintiffs and defendants, raising the possibility of a settlement before the trial. These are confidential, so there is nothing to report at this time. Plaintiffs are represented by an outstanding group of attorneys who have given this case their very best effort for close to six years. The Lead Counsel is: James C. Sturdevant, Mark T. Johnson and Karen L. Hindin of The Sturdevant Law Firm. Co-Counsel is J. Gary Gwilliam of Gwilliam, Ivary, Chiosso, Cavalli & Brewer; Arthur Bryant and Victoria Ni of Trial Lawyers for Public Justice; Todd M. Schneider and Guy Wallace of Schneider & Wallace.
-wage@wage.org-