Instructor Loses Retaliation Suit Against Washington College

Instructor Loses Retaliation Suit Against Washington CollegeTACOMA, Wash.
A foreign-born math instructor has lost a suit accusing Tacoma Community College of retaliation after the board of trustees granted him tenure despite the adverse recommendation of a tenure review committee.
Robert Tan failed to prove that the college had assigned him to teach primarily remedial-level courses in retaliation for challenging the committee’s denial of tenure, the Washington Court of Appeals ruled.
“Rather, the college’s actions were based on Tan’s inability to work with the other faculty, his math lab shortcomings, his inability to accept constructive criticism and his unwillingness to adopt the math department’s otherwise unanimously accepted revised teaching methods,” Judge J. Robin Hunt said for the three-member panel.
“The college is pleased with the Appeals Court decision and glad the court took the time to understand and examine all the issues related to this case,” says Daniel Small, Tacoma’s director of community and government relations. “At Tacoma Community College, we take the rights of our employees very seriously and work hard to make sure everyone is treated fairly, with equal opportunity and without discrimination.”
Calling the decision a “one-sided ruling,” Tan said litigation is expensive and that he would not appeal further. “The situation has improved,” he says, referring to his current course assignments. “In general I’ve been treated fairly. Suddenly I got what I wanted.”
In its decision, the court said Tan had taught college-level math and chemistry in his native Burma before emigrating to the United States, where he earned a bachelor’s degree and a master’s degree. Tacoma hired him in 1990 under a one-year, full-time temporary contract, and then placed him in a two-year tenure-track position.
In 1994, a unanimous five-member review committee recommended denial of tenure based on his deficient performance of non-classroom duties and his over-sensitivity to “constructive criticisms during his probationary period,” the court said. It cited problems such as scheduling and grading complaints and allowing students from his other classes to interrupt his math lab class.
At Tan’s request, the board of trustees held a formal hearing and granted him tenure.
It is the only time that Tacoma’s board has awarded tenure despite an unfavorable review committee recommendation, according to Assistant Attorney General Catherine Hendricks, who argued the appeal for the college. She said he is popular among students.
After receiving tenure, Tan was assigned to predominantly remedial and introductory courses instead of advanced courses. He also wasn’t assigned to the math lab, based on recommendations from department heads.
In a union grievance procedure, an arbitrator upheld the college’s position that Tan’s assignments were based on communication problems and found that his “interpersonal difficulties existed before and during his tenure attempts,” the court said.
He sued for damages, alleging that the college discriminated and retaliated against him and fostered a hostile work environment. A Pierce County Superior Court judge dismissed the retaliation claim without trial. A jury rejected his race, color- and national-origin bias allegations. He didn’t appeal the jury verdict on discrimination.
The appeals court said the retaliation claim was justifiably dismissed.
His “difficulties” in working with colleagues and other problems “clearly existed prior to Tan’s quest for and ultimate receipt of tenure,” the court said.
In addition, his request for an optional hearing before the trustees was not a “protected activity” under state law, it said.
The court also said the college took no “adverse employment action” against Tan, and though it was unusual for a tenured instructor to teach primarily remedial courses, “there were pedagogical reasons” for doing so.
Hendricks, of the attorney general’s office, said the litigation could make community college boards of trustees in Washington “more hesitant in granting tenure” over the objection of their tenure review committees.
— By Eric Freedman



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