Wednesday, June 21, 2000
Appeal by UC raises issues
By Ben L. Kaufman
The Cincinnati Enquirer
The University of Cincinnati is asking a federal appeals court to reverse its June 1 opinion protecting affirmative action advocates from retaliation and dismissal.
In a petition to the U.S. Court of Appeals for the 6th Circuit in Cincinnati, UC attorneys John B. Pinney and Michael A. Roberts raised two issues:
Title VII of the 1964 Civil Rights Act prohibits discrimination because of sex, race, etc., but does it also protect advocates of women's and minorities' rights without regard to the advocates' sex, race, etc.?
In this case, John B. Johnson, an African-American, claimed that his advocacy rather than his race led UC to fire him in early 1996.
Is internal criticism of a public university's affirmative action program by the official who administers the program constitutionally protected speech?
In its June 15 filing, UC says disruptive executives cannot cloak themselves in the First Amendment when their aggressive in-house advocacy undermines employers' legitimate management interests.
Defendants are UC, President Joseph A. Steger and Donald C. Harrison, senior vice president/provost for health affairs.
Mr. Johnson was affirmative action chief and vice president for human resources and human relations. He says he was a victim of illegal retaliation for his zealous advocacy of others' rights.
During 29 contentious months, Mr. Johnson accused UC and senior officials of hypocrisy and foot-dragging when it came to opening better jobs to women and minorities.
UC says advocacy had nothing to do with Mr. Johnson's dismissal; he was a troublesome, inept administrator who fumbled badly during contract negotiations with an employees' union.
The June 1 split opinion pitted 6th Circuit Judges Eric L. Clay and Martha Craig Daughtrey against dissenter Cornelia G. Kennedy.
UC's request for reconsideration initially went to them. If Judges Clay and Daughtrey refuse as expected, Judge Kennedy, on whose dissent the petition draws heavily, is likely to ask the entire 6th Circuit to step in.
Should a majority of the 12 active judges agree with Judge Kennedy, the June 1 opinion would be canceled and UC's appeal heard anew by the entire court.
This could take weeks to resolve, and an appeal to the U.S. Supreme Court remains an option regardless of what the 6th Circuit does.
UC did not seek a rehearing where all three 6th Circuit judges agreed: Mr. Johnson is entitled to a jury trial on his second claim, that his personal complaint to the Equal Employment Opportunity Commission as well as his advocacy triggered his dismissal.
UC says his EEOC complaint had nothing to do with Mr. Johnson's fate.
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