Unit2Sucks said:
wifeisafurd said:
Unit2Sucks said:
wifeisafurd said:
Unit2Sucks said:
wifeisafurd said:
calumnus said:
juarezbear said:
DiabloWags said:
BearSD said:
Paragraph 12 of McKeever's contract allows the university to terminate with no cause by making the payments specified in that paragraph. Paragraph 6 applies only if the university chooses to terminate for cause and pay the coach nothing.
We can all read this ourselves:
"... there is also reserved to the University the right to terminate this Contract without cause at any time by giving written notice to Coach of such decision."
No need for a 6 month "investigation" with a high priced law firm.
No need to make certain that any allegations or claims made against McKeever can stand the test of a Court of Law or some sort of HR "policy". McKeever's contract is extremely clear. Cal can terminate McKeever at any time without cause.
I'm not a lawyer, but I would think that terminating her without cause due to allegations that could (however unlikely) be disproven might leave the school open to a lawsuit.
Her contract clearly states that she can be fired without cause with the unIversity just paying her contract specified buyout. Just like when other coaches are fired (usually for not winning "enough").
Once upon a time not so long ago, there was a coach name Richard Corso He was notified by the Cal AD that he was going to be terminated, and would receive his severance payment per his contract buy-out provision. The eventual pleadings of both parties also stipulate that the Cal AD said he did not like the direction the program was heading. The coach, who is in the Hall of Fame for his sport, alleged in his complaint that he was asked to remain as head coach until the department was able to hire a "younger, female coach." He further alleged the AD said that "women should coach women". Cal denies the AD or administrators said anything to the coach about staying, female or any other type of replacement coach, or anything to suggest that they prefer one gender over another as coaches.
Following the conversation with the AD, the coach expedituously filed an age and sex discrimination grievance. The pleadings acknowledge that Cal agreed that their polices took priority over contractual termination provisions, and Corso was provided with a full investigation while he remained coach. This cast a shadow over the 2016 women's varsity water polo season. The investigation found no basis for Corso's charges, and also recommended that he be fired for a NCAA secondary violation. Corso then resigned claiming he had been constructively terminated. He sued for $1.38 million is salary, and millions in damages for all sorts of things such as sex and age discriminaton. His lawyer claimed that: "The NCAA investigation was contrived and part of the mechanism to attack Coach Corso's credibility, through humiliation, so that no reasonable person with his credentials would remain.
Why don't you tell us how Corso's lawsuit went? It's been 5 years so surely it's been resolved.
Are you aware of any coach at Cal winning a constructive termination lawsuit? Any other coach in California?
Why don't you tell me why Cal takes the position these policies supersede the payoff provision?
Corso case is crap, so I hope he didn't win or get settlement money.
Yesterday 2 contractual employees of a CA utility company won a constructive termination case where the jury awarded $460 million in damages. I guess their attorney were glad their union didn't sign a contract with a constructive termination provision to limit their damages. Very few contracts have constructive termination provisions in them, and a substantial number of employment cases involve employees who quit first. Your swimming upstream against black letter law. Perphaps you can point me to some UC contacts that contain these provisions or even some California case law dealing with these provisions, particularly where a plaintiff relied on one of these provisions?
Yes on coaches winning constructive termination cases in CA. High school coaches. Almost all employment cases end in settlements..
Pointing to two people who claimed retaliation for reporting harassment is very different from what we are potentially talking about with McKeever (the utility case you are mentioning). The coach you mentioned who won a constructive termination lawsuit also claimed retaliation for reporting harassment, so it would appear that we have a pattern.
Looking at the McKeever situation, the chances that they keep her contract and comp and make her an assistant coach is basically nil. After they spend millions on Munger (at $800-$1k per hour for a mid-level associate and ~$1200-1500+ for partners, the dollars add up pretty quickly nowadays), I don't think the buyout will seem like a lot of money if they decide to go in a different direction but don't believe they have cause.
But let's keep boiling the ocean because I find it interesting. Apologies to everyone else.
You said "Cal take the position these policies supersede the payoff provision." I don't see that in the contract - can you point me to the provision? All I see is language that says that certain (but not all) PPSM policies are incorporated in the contract, and in at least one place (as I mentioned upthread) that the coach is waiving certain procedural rights to which she otherwise might be due. The contract is very clear that only the enumerated policies apply (see paragraph 6). Seems very specific but you seem to be implying we should ignore that language.
What you seem to be saying is that despite the fact that this is an extremely UC favorable employment agreement, we should disregard the UC favorable language in it and assume that she has all the rights she would otherwise be entitled to under different circumstances. I don't think the law works that way at all but you seem to have a lot more experience with this sort of state employee termination so I'm open to understanding your position.
I will also grant you this, I looked at Wilcox' original contract and it didn't have any "good reason" language. It also did contain quite a few minor differences from McKeever's which makes me think Wilcox was certainly represented by counsel. It's entirely possible McKeever did not. She is still in a far different situation from most of the constructive termination cases.
And sorry, this post is kind of a hot mess because I had to start and stop a few times. Sorry.
Employment disputes tend to be hot messes. Section 6 incorporates a list of polices, including the one's in play in the Corso grievance, and most of the claims made against Terry. I may not have said this well, but the policies come with their own procedures, employee rights, etc. and Cal acknowledges that the polices supersede whatever is in the contract, which is why Corso got an investigation with possibly trumped-up charges, rather than terminated and severance. It's all purely an academic exercise since Cal is going to do a full scale investigation with a third party (expensive) law firm (we both agree this investigation is happening), which I think most rational people appreciate will take some time. The reason the Chancellor went the route of going outside Cal, is that the accusations involve not just the conduct of a swim coach, but also the two top administrators in the athletic department, and that the law firm findings are subject to privilege.
The point on the utility case is I just looked for a recent case. There are many, many suits that involve constructive termination. Any employment litigator will tell you that in a substantial cases they handle, the employees quit. It really is black letter law. Just not harassment claims cases. I'm stunned to hear you say Corso won, but well, juries. Terry can claim all sorts of things like Corso, assuming they even terminate her (she can say that she is essentially as old as Corso, but not male). Another reason to have a well documented investigation I suppose. The awards in employment cases tend to be big dollars.
Thanks for the context. Just to be clear - I didn't say Corso won. I searched for his case and haven't seen anything since the initial announcement 5 years ago that he said he had sued.
I've been involved in a few employment disputes and the ones where the employees quit were all garbage claims that went nowhere. You make it seem like constructive termination is an easy winner, but from what I've seen and read the threshold is pretty high and it often is only met when there is some sort of retaliation. Basically when companies know they can't fire someone but they still want to, some of them are dumb enough to force the employee out through making the work situation intolerable. I've had to counsel people as to why this is a bad idea so I understand why and how it happens (although to be clear, I've never been involved in a retaliation situation personally, just circumstances where rather than fire a poorly performing employee, a weak manager would prefer to have them quit).
Here's the black letter law from the Ca Sup Ct in the 1994 Annheuser Busch case:
Quote:
The Courts of Appeal have devised and applied the following test for constructive termination: An employee who is forced to resign due to actions and conditions so intolerable or aggravated at the time of his resignation that a reasonable person in the employee's position would have resigned, and whose employer had actual or constructive knowledge of the intolerable actions and conditions and of their impact upon the employee and could have remedied the situation, but did not, is constructively discharged.
...
The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.
I think you're overstating the ease with which someone can win a constructive termination case. Anyone can bring a claim for anything at any time, but actually winning is a different story. Here, given what a tough coach McKeever is reported to be, I think it would be particularly hilarious if she ended up claiming constructive termination where the behavior towards here isn't significantly more egregious than her behavior toward her students.
"Basically when companies know they can't fire someone but they still want to, some of them are dumb enough to force the employee out through making the work situation intolerable. I've had to counsel people as to why this is a bad idea so I understand why and how it happens (although to be clear, I've never been involved in a retaliation situation personally, just circumstances where rather than fire a poorly performing employee, a weak manager would prefer to have them quit)."
So I called up my old law partner the employment lawyer (who became a judge and married my wife and I ) and she has two thoughts for you:
1) if employers had not done really dumb things, she would have had to change her practice. They always do dumb things. No one would believe high paid AD at a top tier school would say the things Corso alleged, right?
2) The constructive termination cases are the worst. If someone quit, they either are a screwball or someone who presents with a bad set of facts for the employer. The big dollar cases where the juries run wild tend to be constructive termination cases. A much higher percentage of these cases go to trial.
She also said at the pleading stage it is easier to sustain a constructive termination case than you want to believe. She repreasented LA County a lot and her view is that with the government, a lot of "what they do is about process." Take that for what ever it is worth.
"The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.
Going back to original issue - giving Terry's job away to another person on a permanent basis - seems to be about as extraordinary as it gets. How could a reasonable person expect to perform their job, when someone else is doing it? I'm assuming Cal would physically prevent her from acting as the coach under the circumstances, because the swimmers facing two head coaches is just way to well, extraordinary.
