It's Easy to Talk Justice: A Case Study of Hudson v Philander Smith College

How One Woman's Case Changed My Thinking About Justice

C.J. Duvall Jr

• Editorial: Palmetto Publishing Group
• Año: 2019
• ISBN:
  9781641113779
• Edición: 1
• Categoría: Diritto
• Categoría: Diritti civili in ambito legislativo

It's Easy to Talk Justice is a case study of the civil rights complaint: Hudson versus Philander Smith College. It details a female plaintiff’s legal challenge against her employer.

The author shares the story of a3 year legal battle between a young woman plaintiff (Hudson) and a historic college (Philander Smith College). The author discovered evidence on the Internet that contradicted the defense of Philander Smith and other named college defendants.

Hudson conteststhe false accusations of her former employer despite the fact that she is fighting against four senior administrators anda powerful board of trusteessupported by a prestigious law firm.The bookdescribes her uphill battle to challenge the Collegeleadership in her quest for a fair resolutionand illustrateshow the values of integrity and kindness areabsentin the midst of employment disputes.

The book demonstrates how difficult it is to seek justice when a largeinstitution has animpressive public image with powerful leaders at the helm equipped to use inaccurate narratives as a means to discredit a complaint.

CHAPTER ONE

One Against Many

“There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

—Elie Wiesel

In the 1980s I read the work of Elie Wiesel. His work as an author exposed many people to the importance of remembering the Holocaust as a lesson to humanity to strive to fight indifference in the face of injustice. Wiesel and fellow Jews experienced monumental injustices and atrocities leading up to, and during World War II. He often spoke of the silence of others who said nothing of the brutality the victims of the Holocaust endured. His thoughts on social justice can be applied to the rights of individuals suffering injustice due to the silence of individuals in positions of moral authority. He wrote, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” Similarly, this book is a protest against the unjust method by which Philander Smith College crafted a story to justify the termination of Hudson, the plaintiff.

Somewhere around February 22, 2016, Gemessia Hudson was terminated from her alma mater, Philander Smith College, where she had served as a development officer in the Office of Institutional Advancement. Hudson had been employed with the College for more than three-and-a- half years. During the course of her employment she reported to a male vice president who was later replaced by a male director. Later, she reported to another male director and finally worked for me when I became Vice-President of Institutional Advancement. After I left, Hudson worked for another male director. Cumulatively, during Hudson’s employment, she reported directly to four males.

The last male she reported to was a former classmate of hers from her time in college. He had returned to work at the College after a stint at the United Negro College Fund (UNCF) in Washington, D.C. where he had served as a relationship manager, facilitating workshops to encourage young people to apply for scholarships with the Gates Millennium Scholars program in partnership with the UNCF. Hudson was not enthusiastic about her former classmate being selected as her new boss because she had already asked to be considered for promotion twice, to the role he occupied. Her reaction was reasonable, she had raised several hundreds of thousands of dollars in the last two years and the new incumbent had no relevant experience in institutional fundraising.

Shortly after the new director took on his role, he was questioned about his understanding of cultivating new donors. He was not familiar with cultivation or what it entailed. Hudson and another employee were surprised the new director was not familiar with cultivation. This revelation produced concern for Hudson.

She told me, “If he doesn’t know what cultivation of donors is, what else doesn’t he know?” About twenty days after his hire she called me to vent.

“He is hounding me about every minute of my day, asking me to share my calendar with him so he can track where I am,” she said.

Hudson and I had a good working relationship, so she frequently bounced ideas around with me or asked me for advice.

I explained to her, “Managers have the right to monitor your schedule so don’t push back. He doesn’t understand how fundraising works so help him get adjusted by cooperating.”

It wasn’t too long before Hudson called to say, “He doesn’t want to share my calendar anymore.”

“What prompted the change of heart?” I asked.

“I had been accused of having a meeting without him. I told him he should have used the calendar he requested. It plainly shows my meeting obligations.”

It sounded like her director was using the tool to simply keep up with her activity rather than using it to coordinate meetings and facilitate productivity.

“I think he is just trying to figure out what the heck fundraising is! He doesn’t seem to know much about how a development office works,” I said.

Whatever his intentions, his request backfired on him when he discovered her calendar was full of meetings and call activities. It sounded as if Hudson may have been concerned, he was overwhelmed with the new commitment.

Hudson was a very productive fundraiser. She used her time efficiently, operating on a flex-time schedule so she could drop her daughter off at day care before reporting to work each morning. I didn’t mind. She was bringing in a lot of money. I didn’t foresee any problems for her until I received a call from her. She called me from Texas while she was with her mother. She had taken Family Medical Leave (FML) but her management team was calling her to do work while she was out.

“Should my management team be asking me to work while I am on leave?” she asked.

“Call Human Resources and ask what the proper process is and then follow it. Employers are not allowed to give assignments to you while you are on job protected leave. Ask the HR director to notify the management team of the rule and get it in writing.”

Despite the fact the College was put on notice, Hudson was summoned to travel out of state to work on a UNCF-sponsored event over a weekend. She returned late Sunday evening, February 21, 2016. Upon returning to work in her Little Rock office the following day Hudson was terminated for tardiness by the director who was hired about 35 working days earlier. Hudson was shocked. She called several people close to her before calling me with the news. She didn’t understand why her successful performance in the fundraising role did not protect her from a seemingly small infraction, especially since the entire office used flex-time and she had not been written up by the new director. She decided to ask me if I knew an attorney.

“I know several attorneys. Austin Porter, Jr., is a good attorney. He has represented my godson. I trust him explicitly. I don’t know John Coulter personally but you might want to call him. Melanie McClure Mitchell is someone I know very well. She is a partner at Cox, Sterling, McClure & Vandiver, PLLC.”

Hudson did not sit idle after her termination. She had a toddler to feed so she was putting resumes in wherever she could. She also called Philander Smith College to ask for reconsideration to return. I thought it was a good idea. I thought perhaps the new director may have acted brashly due to his inexperience and the College would recognize they just lost a great fundraiser and re-instate her. I was wrong. Apparently, her appeal to return to her old job didn’t go well. Hudson was informed she would not be brought back to her alma mater. She challenged the appeal by saying she was capable of serving as a director. In answer, the College sent her a letter indicating she did not have the qualifications to serve as a director. At first, Hudson was devastated. Then she became incensed.

“Are you kidding me?! I have seven years of fundraising experience. Kevin doesn’t have the same type of experience.”

She was referring to her male director of 35 working days.

Shock for Hudson did not end with the denial of her appeal. The College challenged her unemployment compensation request. Usually, employers will not challenge an unemployment compensation request unless the terminated employee has broken a work rule or quit. She had not broken a work rule, nor did she quit her job. But during the unemployment hearing the College produced a document she had never seen before. The document was a disciplinary form which included new, additional reasons for termination, inferring she broke a work place rule. According to Hudson, her director presented it in the unemployment compensation hearing as ‘proof’ of her failure to follow rules on the job.

“I had never seen the form before. There was no date on it. There was no signature on the form,” she noted.

A signature of any kind would have indicated she was present during the disciplinary session which would have also included Human Resources. What was disturbing about the College’s story was that, on almost every occasion of a disciplinary action, the Human Resource director would have been present for such a meeting and would have written a note on the form indicating the date of said occasion. If there was a refusal to sign, the representative would have documented this in the presence of the employee. None of this protocol was provided in the paperwork used to seal her fate. She was denied unemployment benefits for breaking a rule. There would be no safety net for her or her daughter. At this point, Hudson was infuriated and, rightfully so. First, she knew she was passed over for a position by a male who had less experience. Second, she was terminated while she still had two days left before her finalized Family Medical Leave Act (FMLA) paperwork was due, therefore, the college violated the FMLA. Third, she was denied an appeal to return to her job. Last, and most outrageously, she was denied unemployment benefits for a reason the college would not be able to defend. In my thirty years of employment management I had never seen a more callous act of indifference shown toward another person.

Not long after being rejected for unemployment benefits in the Spring of 2016, Hudson filed an Equal Employment Opportunity Commission (EEOC) charge. The EEOC is responsible for enforcing federal laws which make it illegal to discriminate against an employee based on their race, color, religion, sex, national origin, age, disability or genetic information. Hudson’s charge was one of 91,503 charges filed against U.S. employers in 2016. Her charge alleged promotion discrimination and retaliation based on gender, as well as a violation of the FMLA. Her submission of the charge was on advice of her attorney. It would be nearly seven months later before she would hear about her case status from the EEOC.

In late November of 2016, Hudson called me with a worried tone in her voice. After several months of silence, she still had not heard back from the EEOC investigator.

“I know you have experience in this area, and I don’t want to call my attorney every time I have a question. What should I do?” she asked.

The experience she was referring to was my previous career investigating Equal Employment Opportunity Commission (EEOC) charges. I suggested she call the EEOC office and ask for an update on her charge file. I did not expect to hear back from her so quickly but within a day or two, she called me with a bomb shell. Sobbing, she described a document given to her by the EEOC.

“I can’t believe this, you have to read this.”

I was exhausted from a day of work, it was late evening. I needed to retire for the night so I suggested we meet the following day.

As planned, I drove to her new workplace to review the document. Over her lunch break, we reviewed everything together. The document, called a ‘position statement’ contained Philander Smith College’s response to her charge of discrimination. In it was the employer’s response to the alleged charge of discrimination filed by Hudson. Typically, the statement is drafted by an attorney or Human Resources person after interviewing the management members involved in the employment decision causing the charge of discrimination. The interviewer then transcribes their comments into an official position on what happened, otherwise known as a position statement. Under a policy implemented on January 1, 2016, the EEOC permits claimants like Hudson to request a copy of the position statement to see what the employer said about them. The document was not secret so Hudson asked me to read the eight-page response to Hudson’s charges of discrimination. Philander Smith College alleged Hudson violated a signature signing policy; did not apply for, or express interest in a promotion to director; had no experience in national fundraising; and had a record of misconduct. Furthermore, the College stated the male director that was hired over Hudson was the most qualified individual for the position and had relevant national fundraising experience. Hudson was upset with the characterization, saying, “It is not true.”

The College had the resources to spend money on the Chambers USA number 1 ranked law firm in Arkansas to write the statement. The law firm conducted staff interviews to collect information against her charge of discrimination. Ultimately, the position statement was written by an attorney of the prestigious firm retained for the college. The law firm had an excellent reputation in employment law; in fact, I used the firm for immigration work when I served in the international division of Alltel Information Services, Inc. (formerly Systematics, Inc.). The firm even worked with some of my mentees from Philander Smith College. I admired them for their work. I still do today. But my admiration did not cloud what I read. There, in black and white was a story I knew had several misrepresentations of Hudson. She could tell I was shocked, and she nodded silently, feeling affirmed in her emotions. I read the position statement over and over in disbelief, until I began to weep. Up until this time, nearly eight months after her termination, I had not understood what she had endured. I was somewhat out of the picture with regard to her complaint – at least up until I read the position statement submitted by the College. I asked myself, “How could members of management representing the moral leadership of a social justice school provide misleading statements so easily contradicted by simple online investigation? How could the position statement refer to Hudson’s work history and exclude more than two years of outstanding documented performance? Why did the college terminate Hudson for something other male employees historically did without disciplinary action? And furthermore, could easily be disputed with requested discovery? Where was the truth?”

I was saddened that the position statement, though skillfully written, had missing information in some portions and was filled with mis-characterizations of Hudson. The document was absent of any mention of her success in raising significant amounts of funds for the college. She had raised more money than the two previous male directors of development combined. The absence of the mention of her superior performance was painful when listening to her describe her situation. This was a strange decision to terminate the best fundraiser in the office when it would not have cost the college a dime to reconsider their decision.

After reading the College’s position statement, I began to question the school’s ethics. How does an institution of social justice, promoting timeless human values, fail to honor the truth? I was ashamed to have publicly supported an administration that claimed higher ground in the public arena, but privately helped author a document that could destroy a person with innuendo. I am certain the school didn’t know the position statement could be shared with Hudson; otherwise why would they have composed a response with information that was not true and could be challenged legally? Or, perhaps they were expecting a challenge. Executive board members usually make the decision to engage a law firm. Non-executive trustees are generally unaware of the details. They are usually dependent on the judgement of the president and the executive committee to evaluate risks. Instead of mediating with Hudson in May of 2016, the College elected to fight Hudson. She was going to face at least four obstacles.

Four Obstacles

The first obstacle Hudson would face would be the legal cost of challenging the College when they elected to defend her challenge. Legal challenges are expensive, reaching into the hundreds of millions of dollars annually for hundreds of employment lawsuits across the United States. Over the course of my professional life I have observed, investigated, mediated, or testified across a range of employment disputes....