Legal Issues Involved in the dispute
Section 5.4.3 of the Nevada System of Higher Education Code
The Nevada system of higher education code applies to all employees of the Nevada system of higher education, unless there is a variation in an individual employee’s contract that states otherwise.
Section 3.4.6 of the Nevada System of Higher Education Code
If an employee of a tenured position is fired, for any or no reason, they will be reassigned appropriately within the same institution that the employee had their tenured position.
Section 5.4.7 of the Nevada System of Higher Education Code
(a)-(b) Of the code states that a faculty member is “furloughed, pay is reduced or the faculty member is threatened with layoff or is laid off because of financial exigency,” then the member will continue with their employment if it is possible, however, it cannot cause the termination of another employed faculty member to occur.
On November 18th, 2011, they filed an amended complaint (#9) alleging National Origin Discrimination, Age Discrimination, Violation of Procedural due process rights, Violation of substantive due process rights, and a breach of contract.
National Origin Discrimination
The Plaintiff’s, Narayan’s, prima facie for the discrimination of national origin is based on the facts of the plaintiff being of a different national origin other than from the United States, that the plaintiff was performing his job satisfactory, that the plaintiff was fired from his tenured position at UNR, and that while there were several employees that were terminated, there were other administrators with their nation of origin being from the United States who were treated more favorably by being retained. This Prima Facie is sufficient enough to give rise to a plausible claim that the board of regents intentionally discriminated against plaintiffs on the basis on national origin.
The Defendant’s, Johnson’s, defense is that the plaintiff’s claim is based on the theory that Johnson had violated the plaintiff’s rights to equal protection, “by participating in the wrongful termination of [Plaintiff],” after issuing a review and proposal to close the Department of Resource Economics. The matter of fact is that Johnson had no specific role to terminate the plaintiff’s specifically due to the closure of the Department of Resource Economic and the termination of the plaintiff were two separate decisions, both being made by the Board of Regents, not Johnson.
The Plaintiff’s counter argument to the defense is that the personal participation in the termination decision is not required by Johnson due to his recommendation , of closing the Department of Resource Management, because he had set in motion the series of events that would lead to the termination of the Plaintiff, the plaintiff citing Gilbrook v City of Westminster.
Gilbrook v Westminster being a case where a series of events leading to the Gilbrook’s termination was set in motion by a person acting with discriminatory motive.
The Defendant’s counter argument to the plaintiff’s claim of putting in motion the series of events leading to the plaintiff’s termination was not plausible, though. It was decided that despite Johnson’s recommendation of the department closure, it was not set in motion by a person acting on discriminatory motive. Johnson had only recommended closure of a department, and did not recommend that the plaintiff be terminated in specific. It was decided that the Board’s discriminatory motive cannot be imputed in reverse to Johnson.
Age Discrimination
The second relief that the Defendants move to dismiss against Fernandez was in relation to age discrimination under the Federal Age Discrimination and in Employment Act (ADEA).
Defendants move to dismiss Plaintiff’s second claim for relief, which is brought only by Fernandez against the Board of Regents for age discrimination under the Federal Age Discrimination in Employment Act (ADEA). The ADEA deals with the fair treatment of employees of 40 years old and older. However, the due to the State of Nevada’s sovereign immunity, the Nevada System of Higher Education experiences exemptions from being sued by the Act. The Plaintiffs maintain that the evidence gathered from the case involving the “State Police for Automatic Retirement Association et al., Plaintiffs, Appellants, v. John Difava, Superintendent of the Department of State Police, et al”, the State's sovereign immunity can only be applied to cases involving monetary value as a form of relief. In the Plaintiff's case, they defend that they are only seeking injunctive relief. The court, however, finds that the immunity is functional as long as “the state officials do not employ the Eleventh Amendment as a means of avoiding compliance with federal law…” and “ has no application is suits against the States and their agencies, which are barred regardless of the relief sought” ( Ex Parte Young. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)). That being said, the Board of Regents cannot face claims under the ADEA. Therefore, Fernandez’s claim will be dismissed with prejudice, leaving the Plaintiff able to allege the same claims, but under state law.
Violation of Procedural Due Process Rights
The third relief that Narayanan alleged stated that President Marc Johnson violated his rights to procedural due process under the Fourteenth Amendment. The Fourteenth amendment addresses that no law can be passed if it revokes the basic rights or privileges of any citizen. Narayanan argues that Johnson ignored his plea to be considered for a faculty position in the Department of Resource Economics. In opposition, the NSHE Code § 3.4.6 states that, “an administrator who also holds an appointment with tenure, whether granted during or before employment in the administrative position, may be removed from the administrative position without cause, reasons, or right of reconsideration of the action”. This means that, despite Narayanan holding tenure, he did not have the right to be automatically considered for reassignment.
Since there was a lack of evidence involving the faults of President Marc Johnson individually, Narayanan faced a defect in his relief claim. Johnson had held the title of President after Milt Glick has passed away in April of 2011. This means that Johnson did not have the power to make this sort of decision until months after Narayanan had made his requests beginning in July of 2010. Because of this flaw in his argument, Narayanan could not be granted a relief in this third claim and it was dismissed with prejudice.
Violation of substantive due process rights
The fourth claim for relief involves the Substantive Due Process against UNR President Marc Johnson. Plaintiffs argue that Johnson had an individual agenda that involved violation of their Fourteenth Amendment right to substantive due process. They believed that Johnson had specific “participation in the wrongful termination of [Plaintiffs] from their permanent positions as tenured faculty members.” (Am. Complaint (#9), paragraph 47). Both Narayanan and Fernandez believe that their claims are dependent on the fact that they were terminated based on the Title VII violation of national origin and breach of their contracts with the University involving their employment.
In opposition against the Plaintiffs, they once again fail to nail President Johnson for personally deciding to terminate Narayanan and Fernandez. The decision to terminate them was based solely from the Board of Regents after concluding the termination of the Economics Department as a whole. Therefore, their claim was diminished once evidence from a case involving Philip Lum, v. Raymond Jensen, Robert Drake, and the State of California were involved. The case supported the idea that even if there were evidence of the violation of substantive due process,, there is still “no clearly established constitutional right to substantive due process protection of continued public employment”(Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989). Once more, the relief was dismissed with prejudice.
Breach of Contracts
Plaintiffs claim that the Board of Regents breached their employment contracts, resting their claim on NHSE section 5.4.7 (a)-(b) which provides that any faculty member who is laid off because of financial exigency of for curricular reasons “shall be continued in employment, if possible and if such employment does not result in the termination of employment of another faculty member, in an appropriate qualified professional capacity within the System institution involved.” Plaintiffs refer to section 3.4.6, which states that if an employee of a tenured position is fired, for any or no reason, they will be reassigned appropriately within the same institution that the employee had their tenured position. The plaintiffs are alleging that their reassignment was of inappropriate capacity because it was for a position for a department that was going to be closed. They claim that they both could have been reassigned to a department that was not going to be closed resulting in their eventual termination, without leading to the termination of another employee. (Am.Comp. (#9), paragraph 23,25)
The court finds the plaintiffs’ allegations to be implausible. Given the large amount of faculty layoffs and cuts to budgets and departments that were occurring at the time of Plaintiffs terminations, it goes against the claim that Plaintiffs could have been retained without resulting in the termination of other faculty members. Plaintiffs’ allegations is therefore not entitled to a presumption of truth, and in the case of there being no further factual allegations supporting their breach of contract claim, the complaint fails to state a claim. However, because it is not absolutely clear that the deficiencies could not be cured by amendment, the dismissal will be without prejudice and the court will grant Plaintiffs leave to amend.