Think your evidence is solid? Jury, judge, and appeals court may disagree
Articles / Publications
We've often written about the need to have clearly written policies that, once in place, are followed. If a dispute arises and there is any ambiguity in the policies and how the employer interpreted or used them, juries more often than not will end up siding with the employee. The South Carolina Court of Appeals recently had a chance to review that kind of situation. Read on to see how the court analyzed the case.
Dispute over proper response to classroom emergency
William Crenshaw was a tenured professor at Erskine College. On September 24, 2010, a student in his English class who had fallen during an athletic team practice earlier that morning became disoriented and lethargic. Crenshaw, a former paramedic, called Robyn Agnew, Erskine's vice president for student services, to inform her of the situation and ask her to call an ambulance. After the ambulance arrived, Crenshaw and members of the college's athletic training staff disagreed over whether the student should be transported to the hospital.
After the incident, Crenshaw and Erskine's head athletic trainer, Adam Weyer, exchanged e-mails. Crenshaw suggested the college should scrutinize the athletic department's protocol for handling emergency medical situations. He asserted that the athletic department's practice of having student athletes report to the trainers before seeing a doctor endangers the students. He further alleged that the trainers erred in delaying emergency medical transport for the injured student in his class. Weyer accused Crenshaw of "taking the matter into his own hands" and not following the department's concussion protocol of contacting athletic training personnel before calling for an ambulance.
In the aftermath of the ambulance incident, Weyer filed a grievance against Crenshaw. He accused the professor of violating athletic department protocol and making slanderous remarks both online and in class about the athletic training staff. The grievance was cosigned by Mark Peeler, Erskine's athletic director. Gid Alston, the chair of the college's Department of Health and Human Performance, also filed a grievance against Crenshaw. He accused the professor of potentially harming the athletic training program's image by slandering its trainers.
The grievances were forwarded to Erskine's faculty grievance committee to mediate the dispute. After a meeting, the committee determined it could not formulate a mediation plan and sent the grievances to Erskine dean Brad Christie. Weyer, Peeler, and Alston declined Christie's offer to mediate, and the matter was forwarded to the college's president, David Norman, for adjudication.
In November 2010, Norman appointed a special faculty grievance committee to help adjudicate the matter. He asked the committee to assess Crenshaw's behavior in handling the emergency situation and his professionalism and collegiality during and after the event. The professor gave a statement to the committee, denied the allegations against him, and agreed to answer any questions. After two meetings, the committee determined it was unable to help resolve the situation and returned the matter to Norman, who then began the process of terminating Crenshaw based on:
- Crenshaw's conduct during and after the ambulance incident (i.e., he attempted to take control of a situation in which he was subordinate to the emergency response workers and Christie;
- Crenshaw's "obstructionist actions" before the grievance committee (Norman found he exhibited "bullying behavior" and "contempt" for the panel); and
- His disparaging remarks about Erskine on his blog (he encouraged readers to quit donating to the college until after the matter was cleared up).
Steps for terminating faculty member for cause
In Erskine's faculty manual, the procedure for terminating a tenured faculty member for cause begins with preliminary proceedings. That is, the college president must try to resolve the matter with the faculty member in private. If the matter can't be resolved by mutual consent, the president then formulates a statement describing the grounds for dismissal.
The second step is the "formal proceedings," which states:
The President will inform the tenured faculty member in writing of the dismissal and the grounds for it. The President will also advise the tenured faculty member of the right to a hearing before a faculty committee and will indicate the time and place of the hearing. In fixing the time and place of the hearing, the President will allow sufficient time for the tenured faculty member to prepare a defense. The President will inform the tenured faculty member of the procedural standards set forth here. The tenured faculty member will reply in writing to the President stating whether a hearing is desired, and the reply shall be not less than two weeks before the date set for the hearing.
Crenshaw acknowledged the procedures were part of the manual, which constitutes the contract at issue.
Crenshaw proceeded to teach during the spring 2011 semester. In August 2011, Norman initiated the termination-for-cause process in the manual. He wrote a letter to the professor on August 5, 2011, introducing the preliminary proceedings. He then met with the professor on August 6 in an attempt to resolve the matter.
Norman began the meeting by reading the August 5 letter to Crenshaw, which expressed the president's hope they could resolve the issues by mutual consent. If they could not do so, however, then Norman would provide a statement describing the grounds for Crenshaw's dismissal. Norman offered Crenshaw conditions consisting of three sets of apologies that, if met, would allow him to remain employed. They also discussed severance pay in exchange for the professor's early retirement.
Crenshaw and Norman agreed the professor would discuss the early retirement option with his wife and make a decision by 5:00 p.m. on August 8. The meeting ended with Norman outlining the professor's three options: (1) agree to apologize, (2) go to step two, i.e., the formal proceedings for termination at which the college president would outline the grounds for discharge, or (3) accept early retirement.
Just before the agreed-upon deadline to decide among the three options, Crenshaw informed Norman that he and his attorney were willing to discuss his early retirement. The president was unsure whether the response was a yes or a no but treated it as acceptance of the offer. He responded he would draft an agreement for early retirement and a proposed announcement for Crenshaw's approval to prompt a commitment from the professor that he was in fact serious about retiring.
The next day, Norman sent Crenshaw a draft agreement for an early retirement payment and a proposed announcement of the professor's retirement. Crenshaw responded that announcing his retirement was premature because he was still considering the severance agreement, which allowed up to 21 days to consider. Norman responded that Crenshaw could indeed take the entire 21-day period to consider the early retirement agreement.
Because Norman had already informed Crenshaw in the August 6 meeting that he would not be teaching that semester, the college president provided him with an alternative announcement to Erskine's faculty and staff. It would say essentially that Crenshaw would not be teaching in the fall and that he and Norman were discussing his future with the college. Crenshaw responded that he disagreed with being removed from the classroom for the semester. His response also confirmed he hadn't yet made a decision on the options he agreed to in the August 6 meeting.
Because Crenshaw failed to choose one of the agreed-upon options by the fourth day after the deadline, Norman moved on to formal proceedings and sent the professor a statement of the grounds for his dismissal on August 12. The letter informed him of his right to a hearing, stating:
You have a right under College policy to a full hearing before a faculty committee. Unless you waive your right to a hearing, it shall be held on August 29th at 9 [a.m.] in the Chestnut Room. This schedule is subject to adjustment upon reasonable request. As also stated in the handbook, you will reply to this letter in writing, stating whether this hearing is desired. This reply shall not be less than two weeks before the date set for the hearing.
Crenshaw did not request a hearing. Norman never appointed a faculty committee for the termination hearing but waited for the professor at the scheduled time and place for the hearing. He did not appear.
While the formal proceedings were ongoing, the timeline for the early retirement offer was also running. The original 21-day consideration period expired on August 30, 2011, without Crenshaw's accepting or rejecting the offer. Norman extended the professor's time to respond to the offer by six days (or until September 5, 2011) and communicated the information to his attorney. The professor did not respond to the offer by that date. After the extended deadline expired, Norman terminated Crenshaw on September 7.
Trial court jury awards $600,000 to professor
On June 6, 2012, Crenshaw filed a complaint against Erskine and Norman alleging (1) wrongful discharge, (2) breach of contract, and (3) intentional infliction of emotional distress. Erskine and Norman later filed an answer denying the allegations.
On March 28, 2014, Erskine and Norman filed a request for summary judgment (or dismissal of the charges without a trial) on all of Crenshaw's claims. The trial court denied the request. Before the trial, Erskine and Norman filed a second request for summary judgment on Crenshaw's wrongful discharge claim. During arguments about the request, the professor conceded his wrongful discharge claim was the same as the breach of contract claim, so the two claims were merged.
A jury trial was held on June 8-11, 2015. At the close of Crenshaw's case, Erskine and Norman asked for directed verdicts (i.e., there wasn't enough evidence for a jury to decide the case) on all of Crenshaw's claims. The trial court granted the requests on all claims regarding Norman but denied the requests regarding Erskine. At the close of the college's case, it renewed its calls for a directed verdict, which the court granted for the intentional infliction of emotional distress claim.
Finally, the breach of contract claim was submitted to the jury. The jury, by special verdict form, found (1) Crenshaw did not breach his obligation under the contract and (2) Erskine did breach its obligation under the contract. The jury awarded the professor $600,000 in damages.
Not so quick, says trial court judge
After the verdict, Erskine filed a request for (1) judgment notwithstanding the verdict (JNOV), which allows the judge to say there weren't enough facts on which to base the jury's verdict, or (2) a new trial. After a hearing, the court granted the college a new trial. To preserve the issue for appeal, the college sought clarification on why the court had denied the JNOV request. Crenshaw also filed a request to have the jury's verdict reinstated.
On August 24, 2015, the trial court issued an order (1) throwing out its previous order calling for a new trial and (2) granting Erskine's JNOV request. The court found Crenshaw failed to comply with the contract's terms and request a hearing. Therefore, he couldn't recover on a breach of contract claim since he had failed to fulfill the obligations and consequently breached the contract. The court denied the professor's JNOV request, and he appealed.
Court of appeals decides not to override jury
The court of appeals pointed out the strict standard under which it must review a trial court's JNOV decision. That is, like the trial court, the court of appeals must view the evidence and all reasonable inferences in the light most favorable to the party not making the request. The court also noted that the trial court must deny a JNOV request if the evidence yields more than one reasonable inference or its inference is in doubt. In addition, neither the trial court nor the appellate court has the authority to decide credibility issues or resolve conflicts in the testimony or the evidence. And, finally, the appeals court should reverse the trial court's ruling only if no evidence supports the earlier ruling.
On appeal, Crenshaw argued Erskine breached the implied covenant of good faith and fair dealing by (1) suspending him, (2) failing to identify any grounds for firing him during the August 6 meeting, (3) failing to comply with the manual's preliminary proceedings provision, (4) ending the preliminary proceedings before the expiration of the 21-day consideration period for the early retirement offer, (5) failing to comply with the formal proceedings, (6) failing to give him a meaningful opportunity for a fair hearing, and (7) failing to give him enough time to prepare a defense.
In addressing the arguments, the court wrote that the jury was asked whether Crenshaw or Erskine breached the contract. The jury found that Crenshaw did not breach his obligation and the college did breach its obligation. Thereafter, the trial court granted the college's JNOV request, finding Crenshaw failed to comply with the contract's terms and request a hearing; therefore, he had breached the contract.
The appeals court found that the trial court erred in granting Erskine's JNOV request. By submitting the special verdict form to the jury, without objection, the parties agreed it was a question of fact about whether the contract had been breached. The jury, as fact finders, could have gone in several directions:
- The jury could have found the language in the manual and the letter were confusing about whether Crenshaw was specifically required to request or waive a hearing that had already been set.
- The jury could have determined Crenshaw did not breach his obligations to Erskine because the early retirement offer was still pending when he received Norman's letter and remained pending until the day after the scheduled hearing.
- Finally, even assuming the contract required a reply from Crenshaw, the jury could have determined his breach was immaterial.
With these assumptions and open questions, the appeals court reversed the trial court's grant of JNOV. In the appeals court's view, the evidence yielded more than one reasonable inference or its inference was in doubt.
Lessons for employers
We see again the great challenges employers face in being able to prevail in employment law cases. In the first instance, the jury seems to have given greater credibility to the employee, who held tenure at the college. The trial judge who sat through the case did not view the evidence the way the jury did and agreed with the college that the facts did not support the professor's claims. The appeals court, however, indicated that there were questions the jury could have used to decide the case, and it elected not to override the jury verdict.
When your attorneys tell you about the vagaries and nuances of what juries do when they look at evidence in a case, listen carefully. This case provides a textbook description of how a jury, the trial judge, and then the appellate court can view evidence that looks good to you as the employer.
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.
