New England Biz Law Update
An MCAD hearing officer has found that Boston College unlawfully retaliated against one of its professors by refusing to reintegrate the faculty member into the school’s chemistry department following his mental-health-related medical leave.
The complainant, William F. Armstrong, had sent emails in 2002 under an assumed name to several fellow chemists — including a BC job candidate and professors at other schools — that described a rival co-worker as “ruthless, vicious, manipulative, intimidating, vindictive, deceptive, subversive, mean-spirited, insincere, two-faced … over-controlling, power-hungry, resource-plundering, underhanded, dictatorial, vitriolic, conniving, profane, Machiavellian, and disruptive.”
Despite Armstrong’s successful treatment of his disability with medication and therapy, he was ostracized in the years following his return to campus: department heads banned him from faculty meetings; school officials packed up and moved his office from the chemistry building to another location; and the target of his 2002 missive threatened to refuse the department chairmanship unless Armstrong was fired or resigned.
The college offered several non-retaliatory reasons, primarily “breach of trust,” for the chemistry department’s desire to distance itself from the complainant.
But MCAD hearing officer Betty E. Waxman rejected respondent BC’s justifications, pointing to agreements the school entered into with Armstrong that provided for his gradual reintegration into the chemistry department faculty following a one-year leave and psychiatric treatment for bipolar disorder, an illness marked by depression and mania.
“There can be no doubt that Complainant’s anonymous e-mails constituted grossly inappropriate behavior, were outrageous in content, and were cowardly in their method of transmission,” Waxman wrote. “In response to Complainant’s misconduct in 2002, Respondent could have taken steps to remove Complainant as a tenured faculty member. The record establishes, however, that Respondent, under the leadership of University President Father [William P.] Leahy, opted for a redemptive rather than punitive approach to Complainant’s mental health struggles.”
Waxman concluded that the terms of the agreements constituted accommodations, that Armstrong’s efforts to enforce the terms were protected activity (along with subsequent efforts to obtain redress), and that BC’s continued isolation and punishment of Armstrong were in retaliation for that protected activity.
She ordered the school to pay Armstrong $125,000 in emotional distress damages as well as the differential, beginning in the 2003-2004 academic year, between his salary and that of the next-lowest-paid tenured associate professor of chemistry.
The 44-page decision is Armstrong v. Boston College, Lawyers Weekly No. 22-018-15. The full text of the ruling can be found by clicking here.
Nail in the coffin
Armstrong was represented by MCAD counsel William F. Green. The Boston lawyer, who recently retired from the commission, called the decision a “landmark” victory for those suffering from mental health problems that others often dismiss as “character flaws.”
“You don’t persecute and terrorize someone for a mental health issue,” Green said. “It doesn’t excuse [Armstrong’s] behavior; it was reprehensible. But he got treatment, he came back, and he did his best. Yet every time he asserted his rights, Boston College came down on him and retaliated against him.”
The school was represented by Alan D. Rose of Boston’s Rose, Chinitz & Rose. He said only that BC planned to pursue “all available appellate remedies.”
Green said it was not the actions of individuals in the chemistry department, but the inaction of Boston College as an institution that was especially egregious, particularly in light of a faculty grievance committee report that sided with Armstrong and concluded that the school and its former provost, Cutberto Garza, should reintegrate him into the department.
“We’re all allowed, under the law, our own individual prejudices,” Green said. “But institutions are not allowed under the law to have prejudices. They’re supposed to act in an enlightened way in accordance with the law. [BC officials] just completely let themselves be co-opted by the leadership in the chemistry department.”
Kimberly A. Klimczuk, a management-side employment lawyer at Skoler, Abbott & Presser in Springfield, said “one of the nails in the coffin” for BC was when it ignored its faculty grievance committee.
“It makes it seem like they really were out to get this guy,” she said. “The grievance committee found the [chemistry] department acted inappropriately; why would the MCAD or anyone else disagree with that?”
Boston lawyer Paul H. Merry, who represents plaintiffs in employment cases, said Waxman’s decision breaks new ground by departing from the Supreme Judicial Court’s 2006 decision in Mammone v. President and Fellows of Harvard College.
“The [SJC] held that inappropriate activities or conduct due to a disability is not protected,” Merry said. “In other words, people can be fired … on account of conduct driven by their disability. This is one of the most troubling features of disability law, frankly. Waxman appears to have modified that and opened the door.”
Klimczuk, however, saw an important distinction in the fact that Waxman noted Boston College could have sought to remove Armstrong immediately following his 2002 misconduct. Had it done so, there would have been no discrimination, Klimczuk said.
“But once they decided to rehabilitate instead of punish, then they really took on that duty to stick to that rehabilitation approach and not ostracize him,” she said. “I’m not saying they necessarily should have fired him, but it’s interesting to note that, if they had, there likely wouldn’t have been a lawsuit.”
Somerville plaintiffs’ lawyer Mark D. Stern said the lesson for employers is that “when you’re dealing with someone with mental health issues, you really need to determine whether you can accommodate them or not. And, if you can, you need to follow through on it.”
‘Retaliatory animus’
Armstrong worked at the University of California at Berkeley before joining BC’s chemistry department as an associate professor in 1992. He was awarded tenure two years later.
With a family history of mental illness and suicide, Armstrong first started showing signs of mental problems in 1997, which manifested in a variety of behaviors that impacted his personal life and career.
After Armstrong sent the 2002 emails railing against professor Amir H. Hoveyda, — who, Armstrong was told, thwarted his application for promotion to full professor —he entered into agreements with BC that documented the terms by which he could return to his faculty position.
He was permitted to return to campus in 2003 following a year-long leave, psychiatric treatment, administration of psychological tests, and an evaluation by an independent medical examiner. The agreements further provided for a restricted course load for one year, oversight by a mentor, and a year-long cooling-off period during which his office was to be located outside the chemistry building and he was not allowed to attend faculty meetings.
“Any further restrictions on Complainant’s teaching or duties were to be by agreement or based on subsequent conduct,” Waxman wrote.
Many of Armstrong’s colleagues believed he should have been fired and were upset with the way Boston College handled the situation.
Armstrong’s 2007 MCAD complaint stated that the school and Hoveyda discriminated against him on the basis of his psychiatric disability by “refusing to allow him to attend Chemistry Department meetings, social functions, and recruitment meetings after his return to campus from a 2002-2003 leave; refusing to allow him to participate in decision-making regarding the purchase of shared departmental instrumentation; taking him off the Chemistry Department email list; taking steps to move his office and lab space out of the Chemistry Building; transferring administrative oversight of his research and grant activities to the Biology Department; transferring the determination of his salary to the Dean of the College of Arts and Sciences; omitting his name from a 2006 brochure of Chemistry Department faculty; and prohibiting him from teaching courses for chemistry majors.”
The discrimination claim was dismissed by the MCAD as lacking probable cause, and the case proceeded on the retaliation claims.
Stephen Lippard, former chairman of MIT’s chemistry department for 10 years, testified at a hearing before the commission that excluding a colleague from a faculty meeting was “unheard of.” He further criticized the relocation of Armstrong’s office and lab outside the chemistry building.
“According to Dr. Lippard, Complainant’s physical separation from the Chemistry Department was ‘devastating’ to him because visibility and presence is necessary in order to attract graduate students, interact with visiting scientists, and weigh in on departmental matters,” Waxman wrote.
While Waxman said “[f]aculty members had every right to be offended by and to seek to distance themselves from” Armstrong, she noted that Boston College had made “accommodations allowing Complainant to resume his career notwithstanding his psychiatric disability and the hard feelings engendered by his aberrant behavior.”
In rejecting BC’s claims that negative actions were taken against Armstrong because he was “disruptive” or that they were otherwise based on non-retaliatory reasons such as space considerations, Waxman cited “numerous expressions of retaliatory animus by faculty members” — such as Hoveyda’s threatened refusal of the department chairmanship — that established an “inference that a forbidden bias was present in the workplace.”
She added that the “sentiments expressed by the Chemistry faculty approach, if not constitute, direct evidence of retaliation. At a minimum they combine with the inferences set forth above to establish a prima facie case of retaliation” that Boston College failed to refute.
Armstrong v. Boston College
THE ISSUE Did Boston College unlawfully retaliate against a professor by refusing to reintegrate him into the chemistry faculty following a mental-health-related medical leave?
DECISION Yes (Massachusetts Commission Against Discrimination)
LAWYERS William F. Green, MCAD counsel (complainant)
Alan D. Rose of Rose, Chinitz & Rose, Boston (respondent)
