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A round-file complaints box?

Chapman University’s grievance process leaves some faculty members searching for a remedy

From 2007-14, eleven Chapman University faculty members filed grievances against the university (or its staff) for a variety of reasons, including gender discrimination, racial discrimination, violation of academic freedom, and various other complaints.

Aggrieved faculty members face high hurdles in Chapman University’s grievance process.

Chapman University was ordered to release this information as a result of a motion to compel filed by the plaintiff in Kanavou v. Chapman, a case that alleges disability discrimination, failure to accommodate, breach of contract and other claims. The case is pending for trial July 10 in the Orange County Superior Court, Department C26 (case no. 30-2016-00840960-CU-CO-CJC).

Excluding the grievances that were either resolved or withdrawn early in the process, none of the four grievances that proceeded through the university’s mapped-out system was resolved in favor of the faculty member, according to data the court compelled Chapman to release.

The plaintiff in the case, Angeliki Kanavou, Ph.D., was one of the 11 grievants during the time period specified in her motion to compel. Her grievance, filed in 2013, alleged disability discrimination, violation of the Americans with Disabilities Act, and breach of contract. (Her current lawsuit was filed under the California Fair Employment and Housing Act.)

Chapman’s Faculty Senate Executive Board dismissed Dr. Kanavou’s grievance rather than sending it to a hearing committee or a fact-finder — the next steps in Chapman’s grievance process. In the technical language of the Chapman University Faculty Manual, the Senate Executive Board found that Dr. Kanavou had not presented a prima facie” case for proceeding with her grievance.

On March 6, 2017, Judge Gregory Lewis denied Chapman’s motion for summary judgment in its entirety. Thus, the judge effectively determined that the Plaintiff had presented a prima facie case, and that the case could move forward to trial.

An “inadequate [internal] investigation is evidence of pretext.” — Mendoza v. Western Medical Center Santa Ana, 222 Cal. App. 4th 1334, 1344 (2014)

The fact that the SEB dismissed Dr. Kanavou’s grievance at the prima facie stage is evidence supportive of her disability discrimination claim and pretext, as the Plaintiff argued in her motion to compel.

The information released by Chapman as a result of the motion to compel indicates that of the 11 grievances filed from 2007 to 2014, only one other grievance besides Dr. Kanavou’s was similarly dismissed at the outset. The rest got the initial green light, or were deemed to constitute a prima facie case.

Of the remaining nine grievances filed from 2007 to 2014, three were resolved or withdrawn before proceeding to a fact-finder or hearing committee. Only one grievance was reported as “resolved to Grievant’s satisfaction.” This case was referred to an outside mediator. Of the remaining four cases that made it past the prima facie stage, none of them was resolved in favor of the faculty member.

The structure of Chapman’s grievance process places many hurdles in front of a grievant: After the Faculty Senate Executive Board makes the initial determination as to whether or not a grievance constitutes a prima facie case, a grievance moves “upstream” through up to five more deciding points – including the university president and the chancellor. So even if the Hearing Committee decides in favor of the grievant, the chancellor can still veto the committee’s decision — and he did this to one grievance filed in 2011. The university president dismissed another grievance that was filed in 2007.

Notes

According to Black’s Law Dictionary, a prima facie case exists when a party produces enough evidence “to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” According to Chapman’s Faculty Senate, “prima facie means that the grievant has put forth sufficient evidence to presume that there has been a violation of the Faculty Manual.” Chapman’s working definition and the legal definition of a prima facie case are essentially the same, although the SEB and the court came to very different results in Dr. Kanavou’s case, in each respective forum.

A presumption is a legal inference or assumption that a fact exists because of the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption. (Black’s Law Dictionary, 10th ed. 2014, Bryan A. Garner, Editor in Chief.)


Calif. Rules of Prof. Conduct, Rule 5-120.
Trial Publicity

(A) A member who is participating or has participated in the investigation or litigation of a matter shall not
[1] make an extrajudicial statement
[2] that a reasonable person would expect to be disseminated by means of public communication
[3] if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(B) Notwithstanding paragraph (A), a member may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(a) the identity, residence, occupation, and family status of the accused;
(b) if the accused has not been apprehended, the information necessary to aid in apprehension of that person;
(c) the fact, time, and place of arrest; and
(d) the identity of investigating and arresting officers or agencies and the length of the investigation.

(C) Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

CA ST RPC Rule 5-120