Wednesday, October 6, 2010

Wethink the Lady Doth Grieve Too Much

Between 1993 and 2005, June Rosenberg was a part-time psychology professor at Lyndon State College.  In 2001, Rosenberg filed her first grievance against the Vermont State Colleges, alleging that Lyndon State had improperly assigned a summer course to a less-senior faculty member.  Rosenberg won, and taught the course Rosenberg v. Vt. State Colleges, 2004 VT 42 (Rosenberg I). The following fall, perhaps to avoid further allegations of assigning Rosenberg too few courses, Lyndon State gave her a schedule that required Rosenberg to be on campus three to four times per week rather than the once per week she was accustomed to.  That, grieved Rosenberg, was too many employment obligations, and furthermore, Lyndon State had imposed them to retaliate for her 2001 grievance.  In a 2-1 decision, the Board agreed with Rosenberg.  But her victory was short-lived.  The Supreme Court reversed, Rosenberg v. Vt. State Colleges, 2004 VT 42 (Rosenberg II), holding that there was no evidence of either retaliatory motive or suspicious timing, and thus no violation of the labor relations act.

After the “too-few” summer of 2001 and the “too-many” fall of that year, Lyndon State got Rosenberg’s course load just right for three years, until the fall of 2005.  However, “tensions appeared to be building between grievant and employer” during that time. 

Rosenberg was assigned no courses for the spring of 2006, and she has not been assigned to teach a single course since.  She has filed three more grievances against the Vermont State Colleges (Rosenberg III–V), culminating in a fourth grievance underlying this appeal.  All four more or less alleged that Rosenberg had been excluded from teaching certain courses for reasons that were impermissible under the collective bargaining agreement.  The current dispute arose when Rosenberg’s request to teach an introductory course and two other courses was denied in the fall of 2008.  Rosenberg grieved the decision, alleging that she should have been assigned the courses because she was senior to the faculty who were assigned the courses.  She also alleged that she was being discriminated against for filing so many grievances.  The Labor Relations Board disagreed, and Rosenberg appealed, but to no avail: the Supreme Court unanimously affirmed the Board’s decision.

Rosenberg’s problem before the Labor Relations Board and on appeal was essentially a failure of proof.  She did not show that she would have been assigned the introductory course even if the more-junior faculty member had not.  Nor had she shown that the collective bargaining agreement required seniority to trump other considerations.  In fact, the Court found that seniority was to rule the day “only when all of the other factors ‘are deemed to be equal.’” 

Finally, she had not introduced any evidence from which the Board or the Court could infer that the college had an unlawful motive (i.e. her penchant for grievance-filing) in not assigning her more courses.  As the Court articulated, Rosenberg’s burden was to “show that her protected activity was a motivating factor in the employment decision at issue.”  Lyndon State’s knowledge of Rosenberg’s history of grievances was simply not enough.  She needed to show some nexus between the protected activity (grieving) and the employment decision (not to assign her classes).  Without such evidence, Rosenberg could not meet her burden as a matter of law. 

Gavin Boyles

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