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The time and money it can take to pursue labor arbitration proceedings to officially fire an employee is part of what persuaded California State University San Marcos officials to keep professor Chetan Kumar, employed after they found he harassed four students.
Firing a public university professor for sexual misconduct might seem like a straightforward issue, but it can actually be an incredibly difficult, expensive and lengthy process.
The time and money it can take to pursue labor arbitration proceedings to officially fire an employee is part of what persuaded California State University San Marcos officials to keep professor Chetan Kumar employed after they found he harassed four students and violated state education code and school policy related to sexual harassment.
University officials moved to fire Kumar at first, but after the California Faculty Association, the union that represents faculty in the CSU system, intervened, the school agreed to allow him to continue teaching.
The CSU system’s contract with the faculty union requires such cases be sent to arbitration, a private dispute resolution system separate from the courts that’s supposed to speed up proceedings in comparison to litigation. But Cal State San Marcos officials still believed getting rid of Kumar would take too long and be too difficult. And they doubted they would win their case.
“For this case, based on recent arbitration opinions, there was deep concern that the arbitrator would overturn the termination at appeal. In this likely scenario, the faculty member would not have received any disciplinary action, nor would there have been official record of his misconduct. Therefore, it was decided that the best path forward was the final three-month suspension without pay, along with the condition that the faculty member not contact the involved students again,” Ellen Neufeldt, the president of CSUSM, wrote in a letter to the campus community in May.
The CSU system’s agreement with Kumar explicitly states that the deal allowing him to remain employed was intended to avoid “the expense, inconvenience and uncertainty of continued proceedings.”
Neufeldt and Toni Molle, a spokeswoman for the CSU system, have denied that “time nor money is ever a factor in decisions related to sexual assault and/or harassment.”
In the end, the university did avoid a lengthy and grueling process to fire Kumar. Yet at the same time, it created a crisis for itself. Kumar’s own colleagues and students at the university are demanding that the school take back its decision to keep him on campus next school year.
The case at Cal State San Marcos illustrates a thorny part of removing teachers from the classroom that the public often never sees.
Public universities face a dilemma when moving to fire a professor for misconduct: They can go through with the process and risk losing money and the ability to discipline an employee entirely, or back down from the process and allow a problem teacher to remain employed. If school officials takes the first path and loses the case, it faces the possibility of an expensive lawsuit from the accused, and a teacher can end up back in the classroom regardless of the effort and cost.
It’s why some choose to settle cases with teachers and their unions instead of going through the arbitration process that is set out in state law and union contracts. It’s often easier and cheaper to pursue a settlement agreement.
“This was a difficult and heartbreaking dilemma for everyone involved in choosing between two untenable options,” Neufeldt wrote in the letter.
School officials accuse state teachers’ unions of putting up barriers that make it virtually impossible to get rid of bad or abusive teachers while unions accuse school officials of failing to invest the resources to speed up proceedings. But if a professor or the union challenges the case, an arbitrator – a private judge – has the final say in whether a university can fire an employee for just cause.
Meanwhile, educators, sexual assault harassment prevention advocates, legal experts and an arbitrator who sees cases at the Cal State University system told Voice of San Diego that the system can be better for everyone involved. But any change is going to take a major overhaul of state law and university and union involvement in the process, they said.
Once a student reports that they were harassed or abused by a university faculty member, school officials conduct an official investigation into the claims.
If the investigator decides the student’s claims outweigh the teacher’s defense, and the teacher violated school policy or state education code relating to sexual harassment, school officials can decide whether to discipline the teacher.
University officials must comply with state education code, university policy and the employee collective bargaining agreements when imposing discipline on Cal State employees. An agreement between the CSU and the California Faculty Association ensures that the employer has to have a number of things in place in order to fire someone.
University officials decide how to discipline the employee based on conditions in their agreement with the union.
But employees also have rights. During the process, the employee can provide a response or additional information in what’s called a skelly hearing, required by law. With the employee’s response, university officials can decide to uphold their decision to fire the employee, impose a lesser discipline like a suspension instead of a discharge, or dismiss the sanctions completely.
The California Faculty Association is typically the party for the grievance on the employee’s behalf. If the union declines to represent the employee, the employee can get their own attorney and continue with their appeal.
In Kumar’s case, university officials upheld their decision to fire Kumar after the skelly hearing and a year-long dismissal process, records show. Then the union’s grievance and arbitration process kicked in.
At that point, CSUSM officials backed down before pursuing the arbitration process, and signed a settlement agreement allowing Kumar to teach two classes in the fall.
But if neither party agrees on appropriate discipline for the employee, there is an additional step: a labor hearing. Labor hearings for university employees aren’t as formal as court proceedings, but they are similar. They swear witnesses in and there has to be evidence in the case to move forward.
Labor arbitrators, who are judges for contract disputes, ultimately decide if university officials can fire the accused teacher using a set of guidelines to be applied to the facts of each case, commonly known as the Seven Tests of Just Cause. (The university system and the union mutually select an arbitrator for each case based on their agreement.)
They determine whether the university had a reasonable rule or policy related to the case and the employee received adequate notice of the policy and knew the consequences of non-compliance, and if university officials conducted a sufficient and fair investigation before taking disciplinary action and found proof of misconduct during the investigation, dealt with the employee equally and without discrimination and issued appropriate discipline related to the seriousness of the problem. The university bears the burden of describing whether it had just cause to fire a faculty member based on that criteria, according to its agreement with the union.
Andrea Dooley, a labor arbitrator who sees cases at the CSU level, said arbitrators also weigh whether the faculty member has a history of misconduct, willingly owns up to the misconduct or shows a willingness to change in the time between the university’s initial discipline and the labor hearing.
“If someone has an alcohol abuse program and went to AA and said, ‘Give me a second chance,’ maybe it would have a persuasive effect on an arbitrator,” Dooley said.
Dooley wouldn’t comment directly on Kumar’s case, but said arbitrators are limited in what punishments they can dole out based on the university’s contract with the union.
Based on the arbitrator’s judgment, the school can reinstate an employee, impose lesser or can deny any grievances, or allow the faculty member back into the classroom, according to the university and the union’s agreement. The arbitrator can also require the university to give the employee backpay if they find there was not just cause for the university’s discipline.
“A lot of arbitrators kind of get caught in crosshairs,” Dooley said. “The employee has decided who is a bad guy, then he gets reinstated and the arbitrator gets blamed for letting the union win. In most cases, there was some problem where there was not enough evidence or there was a procedural flaw so dramatic and not surmountable.”
If an employer doesn’t bring in actual evidence of misconduct or have an evidentiary proceeding, arbitrators are more likely to follow direction in the collective bargaining agreement and start with smaller disciplines, Dooley said. Universities also have to provide direct evidence, like a student testifying about the harassment they faced.
Hearsay, like a secondhand account of the misconduct, is permitted, but isn’t considered as reliable as a student who testifies about abuse or harassment they experienced directly, Dooley said.
It’s easier for arbitrators to allow universities to terminate faculty members for theft or financial mismanagement than it is for harassment and bullying because of the he said-she said nature of cases, and because students sometimes aren’t willing to speak at arbitration hearings, she said.
Dooley said she thinks universities are starting to take sexual harassment more seriously.
Cal State officials initially planned to let Kumar continue teaching, but moved him to a new assignment in which he won’t work directly with students following VOSD’s reporting on the case. It’s unclear what Kumar will be doing at the university in the upcoming semester and when he will start, Margaret Chantung, a spokeswoman for the university, wrote in an email to VOSD in June. The fall semester begins on Aug. 30.
The agreement the university reached with Kumar cannot be reversed at this point. But if other students, staff or faculty come forward and report additional incidents of harassment by Kumar to the university’s Title IX office, the university can investigate those incidents. If the accusations are found to be egregious, university officials can move to fire him if those allegations are upheld.
The entire process comes with tremendous costs – whether a university wins or loses.
The average cost of the arbitrator and court reporter fees for the arbitration proceedings ranges from $10,000 to $30,000 – and the CSU system pays all of the required costs. The faculty union and CSU typically split the cost of the court reporter, including any transcripts that are prepared, because that’s not part of the mandatory costs, Molle, the CSU spokeswoman, said.
The CSU system is responsible for the first $5 million in covered losses. The costs get paid through a combination of a campus deductible payment and a self-funded risk pool, financed by premiums paid by the campuses each year, Molle said. CSU also purchases insurance on the private market to cover losses in excess of $5 million.
The CSU system uses in-house attorneys to handle these cases, so it doesn’t pay extra outside attorneys’ fees for arbitrations, Molle said.
The legal fees might not end with the arbitration process. The university could face further legal action if an arbitrator decides officials can’t fire the employee. If a teacher stays in the classroom, the accusers or the employee could sue the university for negligence or wrongdoing.
In the end, the university could end up paying for lawsuits after the arbitration process is complete. It’s a liability for universities to keep faculty members known to have harassed students on campus, said Alana McMains, an attorney with The Pride Law Firm in San Diego.
“The more times a school received complaints about a teacher and the more times the university was put on notice, the angrier a jury is going to be,” McMains said.
She said schools often weigh what might cost more to fight – a lawsuit from a student harmed by a professor, or a union’s legal maneuvering to keep a professor employed – but that there should be another factor at play: the human cost.
“From the perspective of a parent or anybody who cares about victims, it’s really somewhat gross to think about a school weighing what will cost more,” she said.
Experts told Voice of San Diego that preventing sexual assault and harassment in schools and making the process of litigating those cases more fair and less expensive would require major overhauls to state laws.
Unions are largely resistant to changes. They’ve successfully lobbied against numerous proposed laws aimed at strengthening teacher accountability protocols.
Larry Sand, the president of the California Teachers Empowerment Network, and Billie Jo-Grant, a researcher at Cal Poly San Luis Obispo and board member at a national nonprofit Stop Exploitation, Sexual Abuse Misconduct and Exploitation, said problem professors often remain on the job as a result of egregious union protections.
Many universities decide to keep professors in roles away from students after they’re found of wrongdoing. It leaves taxpayers on the hook for a professor’s salary even if they’re not educating students.
A representative for the California Faculty Association declined an interview request for this story.
Dooley, the arbitrator for the CSU system, said universities need to do a number of things to better to prove they have just cause to fire an employee for sexual misconduct. Officials need to cultivate a culture of intervention, hire leaders who put students first, conduct more training for Title IX team members on what information is needed to sustain a claim at arbitration and keep more staffers on hand to help speed up investigations of complaints, she said.
“There needs to be better documentation and swifter intervention into this stuff. It does not pop up out of nowhere. It’s often part of a culture where this stuff is accepted,” Dooley said. “Department heads and deans know which professors try to date students or use lewd behavior. There’s a culture of looking the other way.”
At the same time, department heads and deans at public universities don’t have the ability to fire professors.
Molle said the CSU system follows all applicable state and federal laws and the requirements of the union’s collective bargaining agreement when it disciplines a represented employee and defends the disciplinary action in an arbitration proceeding.
“Every case presents unique circumstances that are carefully evaluated to determine available options in resolving these matters,” Molle wrote.
Schools and unions often blame each other for why they can’t get rid of problem teachers. Dooley said she doesn’t think either side is to blame.
“In the scheme of things … It’s really a close call. I don’t think it’s one or the other. I think a lot of people don’t familiarize themselves with the agreement process. It can be very frustrating.” she said.