IN THE MATTER OF CHAFFEY COMMUNITY COLLEGE DISTRICT,
Docket No. 95-91-CR
Civil Rights Proceeding
This is an action to terminate the continued eligibility of the Chaffey Community College District
(Chaffey) to receive or apply for Federal financial assistance from the U.S. Department of
Education. This action was instituted as a result of a determination by the Assistant Secretary of
Education for the Office for Civil Rights (OCR) that Ms. Gloria Haney, a professor at Chaffey,
was the subject of two acts of retaliation by Chaffey's Governing Board which were prohibited
under the Rehabilitation Act of 1973, as amended, (29 U.S.C. § 701 et. seq.). The purported acts
of retaliation -- the Governing Board's denial of Ms. Haney's request for a sabbatical leave in
April 1989 and the tabling of Ms. Haney's second request for a sabbatical leave in
March 1990 -- were the result of Ms. Haney's pursuit of an accommodation in her teaching
duties due to a physical impairment during the spring of 1988. Based upon the findings of fact
and conclusions of law, infra, the determination of the Assistant Secretary for Civil Rights is
upheld in part.
This proceeding arises as the result of events which occurred primarily in 1988 concerning Ms.
Haney and her employer, Chaffey.See footnote 1
Ms. Haney, a professor of English at Chaffey, was
scheduled for the spring quarter of 1988 to teach three courses, including an English 90 course
which met on Mondays and Thursdays (Mon/Thur) from 10:00 to 11:50 AM. Due to a clerical
error, the English 90 course was originally assigned to a room which was not a classroom. This
error was corrected on or about March 24, 1988, approximately one and one-half weeks before
the beginning of the quarter on April 4, 1988. On this date, Ms. Haney was notified that the new
location for this course was a classroom located in the gym building which was situated downhill
from the Language Arts building where the English classes were generally held.
Upon notification of the new room assignment in the gym building, Ms. Haney complained to the
secretary of the English Department and questioned this room assignment. Her departmental
chair, Ms. Silliman, responded on the same day and dismissed Ms. Haney's objections indicating
that [e]veryone else has walked in the past [to the gym building]. Now it's your turn. It's the
fair thing to do. Ms. Haney then wrote a memorandum to her departmental chair and
questioned this room assignment on two grounds: her seniority and that, on Mondays, the
physical exhaustion from walking uphill to the Language Arts building for her next class would
have a detrimental effect on her ability to teach that class.
On the same day Ms. Haney was notified that the new room assignment was in the gym building,
i.e. March 24, 1988, she was interviewed by Mr. Chaney, the chair of the Management
Department at Cal State University (Cal State), for a part-time position to teach a management
course.See footnote 2
This position had recently and unexpectedly become available for the spring quarter
which, like Chaffey, began on April 4. The management course met twice a
week -- on Tuesdays and Thursdays from 10:00 to 11:50 AM. During the interview, Mr. Chaney
inquired several times whether Ms. Haney had any conflict with the period assigned to this
course. In response, Ms. Haney indicated that she did not have a conflict.See footnote 3
At the end of the
interview, Mr. Chaney made Ms. Haney an informal offer and indicated that a formal offer would
be made shortly after authorization was obtained. A formal offer was made within a day or two
and, despite the direct conflict in schedules, Ms. Haney accepted the Cal State assignment on
March 29. She completed the application for employment on March 29 and signed the contract
of employment on April 4.
Between the March 24 meeting with Mr. Chaney of Cal State and Ms. Haney's March 29
acceptance of Cal State's formal offer of employment, Ms. Haney approached Mr. Arias, another
professor in the English department at Chaffey. Much earlier in March, Mr. Arias had sought an
exchange of his English 91 course with Ms. Haney for one of her courses. Mr. Arias' English 91
course met on Tuesdays and Thursdays from 8:00 to 9:50 AM -- a time period which he disliked.
While Ms. Haney had previously declined his offer, she now pursued an exchange of
courses -- her English 90 course which met on Mon/Thurs at 10:00 AM in exchange for his English 91 course. Mr. Arias agreed to the exchange. This exchange would eliminate Ms. Haney's conflict on Thursdays when she was scheduled to teach both the management course at Cal State and her English 90 course at Chaffey at 10:00 AM.
As the quarter began at Chaffey on April 4, Ms. Haney taught Mr. Arias' course while she sought
departmental approval of the course exchange with Mr. Arias on ground that such an exchange
eliminated her previously voiced objections with the room assignment in the gym building for
her English 90 course, i.e. that the room assignment did not consider her seniority and that, on
Mondays, the uphill walk would have a detrimental effect on her ability to teach her next class.
This request, made on April l, was rebuffed by the departmental chair on April 4.
Though rebuffed, Ms. Haney continued to pursue the exchange of classes with her departmental
chair and the chair's superior, the academic dean of her division. On April 11, the departmental
chair warned Ms. Haney that further administrative action would be pursued against her unless
she ceased her unauthorized exchange of classes and performed her regular teaching assignment.
On April 12, Ms. Haney met with her departmental chair and sought a reversal of the chair's
denial of Ms. Haney's proposed course exchange. For the first time, Ms. Haney raised, as a
justification for the course exchange, a medical condition for which she sought a diagnosis in the
emergency department at Kaiser Permanente, her health maintenance organization, on April 6.
This medical condition, which she refused to disclose or detail, precluded her from walking
uphill, or even driving, between classes as would be required on Mondays under her regular
schedule. Ms. Haney declined to divulge any further information concerning her medical
condition, even to her division's academic dean.See footnote 4
At this point, the departmental chair
suggested that Ms. Haney provide a written statement from her physician to Mr. Menzel, the
vice-president of personnel, and that she would then authorize a course exchange. Ms. Haney
was to provide this information by April 21.
According to Ms. Haney, the April 12 meeting changed the nature of the dispute. Before the
meeting, she viewed the dispute as a contractual matter, that is, whether she could exchange
courses with Mr. Arias. As a result of the request for a physician's statement by her departmental
chair, the dispute with Chaffey now became a medical issue. As a result, Ms. Haney no longer
felt, but did not disclose this to Chaffey, any obligation to exchange a course with another
professor in order to satisfy her regular teaching obligation.
On April 15, Ms. Haney sought a physician's statement from Kaiser Permanente. She met with
Dr. Ambrose, a general physician at the clinic. During her conference, Ms. Haney became quite
emotional and Dr. Ambrose, after reviewing her file and discussing the problems she was
experiencing with her supervisor at Chaffey, indicated that Ms. Haney's physical problem was
more likely due to a psychological problem rather than a physical condition. Although Dr.
Ambrose recommended that she see a counselor, he nonetheless provided a physician's statement
at the end of the conference. In the
temporary activity restrictions category
in the certification of
disability and/or return to work or school form, Dr. Ambrose wrote--
On April 22, Mr. Menzel met with Ms. Haney to discuss her physician's statement. The initial
discussion centered upon the nature and degree of Ms. Haney's work load at Chaffey and
elsewhere. While it was extensive, Ms. Haney disclosed all of her teaching and other activities
except for her part-time position at Cal State. As the conversation turned to the physician's
statement, Ms. Haney explained that, in the opinion of her physician, it was not in her best
interest to teach the back-to-back classes on Mondays which required her to walk or drive from
the gymnasium building to the Language Arts building. Because Ms. Haney had not informed
her physician about the extent of her non-Chaffey activities, Mr. Menzel questioned whether the
physician had made an informed decision when he issued the medical statement. They agreed
that the physician should be so informed. Based upon these circumstances, Ms. Haney was
advised that the physician's statement would not support her continued failure to meet her spring
quarter teaching assignment at Chaffey and that she was to teach her original English 90 course.
Following the April 22 meeting with Mr. Menzel, Ms. Haney did not return to teach her original
English 90 course. She did, however, continue to teach at Cal State.
On May 31, 1988, Mr. Menzel held another meeting with Ms. Haney to discuss her continued
failure to teach her English 90 course and that, as a result, Chaffey had to hire a substitute
Mr. Menzel solicited several times an explanation by Ms. Haney for her failure to
teach the course in the hope that she would fess up and inform Chaffey of the teaching conflict
created by the Cal State job. Ms. Haney, however, responded that it was due to her medical
Mr. Menzel indicated that her failure to teach this course constituted a willful refusal
to perform approximately one-third of her regular spring quarter teaching assignment
concluding the meeting, he directed her to return and teach the English 90 course. Under protest,
Ms. Haney agreed to do so
On June 18, 1988, the Governing Board of Chaffey recommended the suspension and termination of Ms. Haney's employment. The statement of charges by Chaffey's president alleged, in effect, that Ms. Haney failed to teach her English 90 course during the spring quarter without justification and without authorization. Moreover, he alleged that she falsely represented to the administration on several occasions that she could not teach the course due to medical reasons when, in fact, she failed to teach this course due to her teaching obligation with Cal State.
Ms. Haney was suspended without pay as of June 20, 1988. Thereafter, she filed a request for a
hearing and contested her immediate suspension and the proposed termination.
In October 1988, Ms. Haney and the Governing Board reached a settlement. The terms of the
settlement provided, inter alia, the reinstatement of Ms. Haney as of January 3, 1989, and a
payment of $4,000 to her unless she obtained employment elsewhere which, in that case, the
amount was $15,000. Ms. Haney did not secure employment elsewhere. Thus, one effect of the
settlement was that Ms. Haney was not paid for approximately one quarter of the school year.
In January 1989, Ms. Haney returned to her position within the English department. Within one
month, Ms. Haney submitted a request for a one-year sabbatical to commence in the fall of 1989.
In April 1989, the Governing Board considered her request and denied the request.
In February 1990, Ms. Haney submitted a second request for a sabbatical leave. In March 1990,
the Governing Board tabled her request pending the completion of an about-to-be concluded
investigation by OCR regarding a potential civil rights violation by the Board when it denied Ms.
Haney's first request for a sabbatical leave in April of 1989.
An individual who pursues a right or privilege as a handicapped individual with respect to his or
her employer or participates in the complaint process under which a right as a handicapped
individual is asserted under Section 504 of the Rehabilitation Act of 1973 is protected from
retaliation by his or her employer.See footnote 5
Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-
352, § 601, 78 Stat. 252 (1964)(codified as amended at 42 U.S.C. § 2000d). The protection is
afforded under 34 C.F.R. § 100.7(e) (1990) which provides--
The alleged second act of retaliation by Chaffey occurred in March 1990, the year following the
denial of Ms. Haney's first sabbatical request. In this year, the Governing Board considered a
second request for a sabbatical leave by Ms. Haney and tabled the motion to grant a sabbatical
leave. Thus, the Board's action neither granted nor denied the request. It simply deferred action
on the request until some later time. OCR maintains that this action represented a retaliatory act
by the Board and was taken because Ms. Haney had filed a claim of discrimination with OCR
regarding the denial of her first request for a sabbatical leave.See footnote 6
As to each claim of retaliation, the parties agree that OCR bears the burden of production to
establish a prima facie case which includes that (1) Ms Haney, as the employee, was engaged in a
protected activity; (2) she was subjected to an adverse employment decision; and (3) a causal link
exists between the protected activity and the employer's action. Thereafter, the burden of
production shifts to Chaffey to establish a legitimate nondiscriminatory reason for its action.
Upon this showing, the burden of production shifts back to OCR to establish that Chaffey's
proffered reason is pretexual.See footnote 7
A. Whether Ms. Haney was engaged in a protected activity regarding her first claim.
OCR maintains that the anti-retaliation regulation, 34 C.F.R. § 100.7(e), prohibits any retaliatory
act for the purpose of interfering with a right or privilege secured by the Rehabilitation Act.
Under 34 C.F.R. § 104.12(a), a recipient of Federal assistance is required to make reasonable
accommodation to the known physical or mental limitations of an otherwise qualified
handicapped applicant or employee . . . . Accordingly, OCR maintains that the pursuit of a
reasonable accommodation by an employee is a protected activity under Section 504 of the
Rehabilitation Act. Chaffey does not dispute this substantive proposition.
In order to be engaged in the protected activity of pursuing a reasonable accommodation, OCR
argues that it must establish that Ms. Haney (1) pursued a reasonable accommodation for a
handicap, (2) had a good faith reasonable belief that she was handicapped and required a
reasonable accommodation, and (3) had a handicap. Chaffey counters that there is no evidence
that Ms. Haney was handicapped or required an accommodation for her alleged handicap. In its
view, Ms. Haney's avoidance of teaching the English 90 course in the gym building was not
related to any alleged physical disability; rather, it was due to the conflict in her teaching
schedule which was created when she accepted the part-time teaching position at Cal State, i.e.
she was scheduled to teach on Thursday at 10:00 AM in the Chaffey gym classroom for her
English 90 class and at the same time at Cal State in a management class. Chaffey also urges that
there is no basis in fact or law that Ms. Haney had a reasonable belief that she was handicapped.
1. Whether Ms. Haney pursued an accommodation.
An individual with handicaps is one who has a physical or mental impairment which
substantially limits one or more of such person's major life activities. 34 C.F.R. § 104.3(j)(1)
(1990). Generally, an employer must make an accommodation for an individual with handicaps
which may include--
Below, the tribunal examines, sequentially, each event involving Ms. Haney and her medical
condition. As determined hereinafter based on the facts, Ms. Haney did not pursue a reasonable
accommodation due to a handicap. Therefore, the retaliation regulation is not, by its terms,
applicable to the Governing Board's denial of Ms. Haney's request for a sabbatical in 1989, the
first claim of retaliation alleged by OCR.
On March 24, 1988, approximately one and one-half weeks before Chaffey's spring quarter
began on April 4, Ms. Haney learned that her Mon/Thur 10:00 to 11:50 AM English 90 class was
assigned a classroom in the gym building. The gym building was located a substantial distance
downhill from the Language Arts building where the English classes were generally held. She
complained to her departmental chair about this classroom assignment in a memorandum and
raised two arguments against such an assignment. First, she argued that this assignment was
made without considering her seniority. Second, she complained that the physical effort of the
uphill walk from the gym after her English 90 class on Mondays would adversely affect her
teaching performance in her next class which was scheduled immediately thereafter.
These complaints are personal in nature. They do not seek an accommodation due to a
substantially limiting, physical impairment as defined by the statute and regulations.
Accordingly, this request for a change of classrooms was not a pursuit of a reasonable
accommodation due to a handicap.
Ms. Haney's next request came by a memorandum of April 1 and was made after she had
accepted the part-time teaching position at Cal State which created a conflict with her English 90
class at Chaffey on Thursdays at 10:00 AM. The April 1 request sought not a classroom
exchange, rather a course exchange with Mr. Arias. The effect of a course exchange with Mr.
Arias eliminated Ms. Haney's conflict of classes on Thursdays at 10:00 AM.See footnote 8
This request was
based upon the same non-medical justifications proffered in her March 24 request, i.e. her
seniority and inability to effectively teach her next class on Mondays due to the physical effect
caused by walking between the buildings. While a change in courses eliminates the classroom
location problem and may be considered in the nature of an accommodation request, it was not
made based upon her medical condition or any resulting physical impairment. As such, this
April 1 request does not constitute the pursuit of an accommodation for purposes of the
On April 12, Ms. Haney met with her departmental chair and sought a reversal of the chair's
denial of Ms. Haney's proposed course exchange with Mr. Arias -- an exchange which she and
the other professor had nonetheless implemented. For the first time, Ms. Haney raised, as a
justification for the course exchange, a medical condition which rendered her, in the words of the
departmental chair, incapable of teaching two back-to-back classes and of even driving, much
less walking, from the Language Arts Building to the gymnasium without 'being exhausted.'
Other than the broad generalization of a medical condition, Ms. Haney refused to divulge any
information concerning her condition to her departmental chair or even to the academic dean of
her division. At this point, the departmental chair suggested that Ms. Haney provide a written
statement from her physician to Mr. Menzel, the vice-president of personnel, and that she would
then authorize a course exchange. Ms. Haney was to provide this information by April 21.
In the tribunal's view, the pursuit of an accommodation requires the presentation to the employer
of sufficient evidence that a significant physical impairment exists and that this impairment
requires some accommodation in order for the individual to perform the duties of his or her
employment. In the instant case, Chaffey was presented during the April 12 meeting with only
an oral, vague suggestion that there may be a physical impairment. Hence, at this point, Ms.
Haney, clearly had not pursued an accommodation due to a handicap.
Following the April 12 meeting, Ms. Haney immediately abandoned her proposed exchange of
courses. The nature of the dispute was completely changed, in her view, due to the departmental
chair's request for a physician's statement. Her view, which she did not disclose to Chaffey, was
that the chair's request transformed the dispute from a contractual matter dealing with her right
as tenured professor to exchange a course with another professor to a medical issue. As a
medical issue, Ms. Haney felt that she no longer was obligated to exchange a course with another
professor in order to satisfy her regular teaching obligation at Chaffey.See footnote 9
Thus, a medical
statement would excuse her from teaching the English 90 course, fully one-third of her regular
Objectively, Ms. Haney implemented her new position without discussion with, or the consent
of, Chaffey. First, she ceased teaching Mr. Arias' course after April 12. Second, she delivered,
on April 15, a physician's statement to Mr. Menzel of the personnel department, which indicated
that she was advise[d] to avoid exertion. Third, after delivering the physician's statement to
Mr. Menzel, Ms. Haney presented her departmental chair with a previously prepared
memorandum that requested a substitute instructor for her Mon/Thurs English 90 course in gym
Thereafter, Ms. Haney did not instruct her English 90 course during April and May.
It is patently clear that Ms. Haney did not pursue an accommodation in connection with her
obligation to teach the English 90 course in the gym building when she presented her physician's
statement. Any reasonable accommodation, such as a switch in the classroom location or special
transportation or parking spaces to alleviate the walk between buildings, would have enabled her
to teach the course. Yet, what she imposed on Chaffey after April 12 was the elimination of one-
third of her regular teaching schedule. Such a significant, major reduction in her duties does not
even arguably constitute an accommodation. It is well recognized that the elimination of an
essential duty is not considered an acceptable accommodation. Gilbert v. Frank, 949 F.2d 637,
642 (2d Cir. 1991); Hall v. United States Postal Serv., 857 F.2d 1073 (6th Cir. 1988); Jasany v.
United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir. 1985).
Based on the above, there is no evidence which supports the theory that Ms. Haney was pursuing
an accommodation due to an existing medical condition or limitation. Therefore, under these
circumstances, the retaliation provision under Section 504 is not applicable.
OCR argues that Ms. Haney pursued an accommodation--
Second, the record is clear that Ms. Haney's request for a substitute instructor came well before
the rejection of her physician's statement by Mr. Menzel, not after its rejection as OCR
maintains. Ms. Haney submitted her request for a substitute instructor on the same day she
delivered her physician's statement to Mr. Menzel. At this point, Mr. Menzel had not
considered, let alone rejected the physician's statement. It was not until one week later, on April
22, 1988, that Mr. Menzel met with Ms. Haney to discuss the situation and rejected the statement
on the basis that her physician had not issued the statement with full knowledge of Ms. Haney's
overwhelming, busy teaching schedule and business activities. Thus, OCR's argument lacks
2. Whether Ms. Haney had a handicap or had a good faith, reasonable belief that she was
handicapped when she pursued an accommodation.
OCR maintains, correctly, that the protection of the anti-retaliatory regulation is not limited to an
individual who is, in fact, handicapped and pursues an accommodation. The legal protection
extends, also, to an individual who, at the time of the pursuit of an accommodation, has a good
faith, reasonable belief that he or she is handicapped. As such, OCR argues, in effect, that Ms.
Haney had a handicap or, in the alternative, that she had a good faith, reasonable belief that she
had a handicap which required an accommodation.
An individual with handicaps is one who--
A physical impairment is any physiological disorder or condition . . . . affecting one or more of
the following body systems: . . . cardiovascular. 34 C.F.R. § 104.3(j)(2)(i). The physical
impairment must substantially limit a major life activity which means a function such as caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 34 C.F.R. § 104.3(j)(2)(ii).
The parties agree that the physical impairment must be severe enough that it results in a
substantial limitation of one or more major life activities and that the physical impairment must
be more than just a temporary impairment. The parties disagree whether the physician's
limitation of avoiding exertion such as climbing up and down hills is a substantial limitation of a
major life activity and whether a limitation for a period of two or three months for purposes of
diagnosis satisfies the pernancy aspect required of a physical impairment.
OCR argues that major life activities, according to the EEOC Compliance Manual, are those
basic activities that the average person in the general population can perform with little or no
difficulty. In this regard, OCR maintains that, due to the physician's limitation, Ms. Haney's
physical abilities deviates from the average person in that the average person can walk up hills
and is not restricted to a limitation of exertion-free activities.
It is clear that Ms. Haney did not have a physical impairment which substantially limited one or
more of her major life activities. The avoid exertion restriction had no effect upon Ms.
Haney's life style in any way except on Mondays, when she was supposed to walk uphill from
the gymnasium building to the Language Arts building for her next class -- a walk which she
disliked and tried to avoid even before her restriction. Such a narrow limitation does not
constitute a significant restriction in her major life activities. Cf. Blanton v. Winston Printing
Co., 868 F. Supp. 804 (D.N.C. 1994) (difficulties in running and ascending and descending stairs
do not constitute sufficient residual effects to constitute a disability under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et. seq.); In re Southwestern Virginia Training Center, Dkt.
No. 93-125-CR, U.S. Dep't of Education, at 5 (ALJ, June 30, 1995), aff'd by Civ. Rts. Rev.
Auth. Jan. 14, 1997, appeal pending 4th Cir. (a 20 pound lifting restriction created only a minor
inconvenience in daily life).
In addressing the requisite duration that a limitation must have, OCR acknowledges that a
number of years satisfies the durational requirement while a transitory medical condition lasting
only a few weeks, such as influenza, is insufficient. OCR argues, based upon the EEOC Manual,
that a two to three month period is a sufficient duration, especially where, as here, the individual
is in the midst of diagnosis for a life-threatening condition--
A transitory incapacity or injury is not considered an impairment under the Rehabilitation Act as
it extends only to an impairment of a continuing nature. Southeastern Community College v.
Davis, 442 U.S. 397, 405-06, n.6 (1979). Thus, for instance, a broken leg that takes 8 weeks to
heal (29 C.F.R. pt 1630 App.), the pregnancy of a woman (Saffer v. Town of Whitman, 62 Fair
Empl.Prac.Cas. (BNA) 1767, 2 A.D. Cases 1437, 1986 WL 14090 (D.C. Mass. 1986)), and
degenerative disc syndrome requiring 6 months of rest (Paegle v. Dep't of Interior, 813 F. Supp.
61 (D.D.C. 1993)) are not considered impairments. In short, there is a difference between a
transitory and a permanent or long-term condition based upon whether the injury or condition
will be resolved over a reasonable period of time.
A transitory injury may develop, on occasion, into a long term or permanent condition. For
example, a broken leg may heal improperly and result in a permanent limp. The broken leg is a
temporary injury and the resulting limp is a permanent condition. Thus, the initial condition
lacks the requisite permanency and, therefore, does not satisfy the durational requirement, while
the latter condition satisfies at least the durational aspect in determining whether the improperly
healed leg constitutes a physical impairment. Blanton, 868 F. Supp. at 807 (citing 29 C.F.R. pt.
In the instant case, the nature of Ms. Haney's problem was not specifically diagnosed when she visited the emergency department on April 6 although life-threatening and other serious possibilities were ruled out.See footnote 12 12/ The physician's statement, issued more than a week later and at the request of Ms. Haney, allowed two to three months for a cardiac work up. The work up was neither extensive nor rushed.See footnote 13 13/ In the tribunal's view, the imposition of limitations upon Ms. Haney during the period of diagnosis is more akin to a transitory condition than a long term or permanent condition. Its duration was short -- only two or three months. The underlying problem -- the absence of a clear diagnosis -- would be resolved by the end of the period when the nature and extent, if any, of a long term or permanent condition would be known. This situation is clearly not the type of condition for which relief under the Rehabilitation Act was intended or is appropriate.
In summary, it is patently clear that Ms. Haney was not an individual with handicaps since her
physical limitation did not significant affect any major life activity and was a transitory, not a
long term or permanent, situation.
Next, OCR maintains that, even if Ms. Haney was not, in fact, an individual with handicaps, she
had nevertheless, a good faith, reasonable belief that she was handicapped and, therefore, needed
an accommodation for her handicap.
Good faith encompasses sincerity and proper intentions
regarding one's assertion of a potentially disabling condition.
Poole Silver Co., 615
F.2d 4 (1st Cir. 1980) (an individual whose accusation of discrimination was more likely raised
as a smokescreen in challenge to the supervisor's legitimate concern rather than in opposition
to perceived employer misconduct was denied the protection of a retaliatory provision under
Title VII). Reasonable belief of one's condition and limitations is measured by an objective
standard. Drinkwater v. Union Carbide Corp,, 904 F.2d 853, 866 (3d Cir. 1990).
The good faith,
reasonable belief standard protects an employer against malicious accusations and frivolous
claims. Parker v. Baltimore & O.R.R., 652 F.2d 1012, 1020 (D.C.Cir. 1981).
In the tribunal's determination, Ms. Haney lacked good faith and a reasonable belief that she was
As determined earlier, Ms. Haney had no intention of seeking an accommodation when she
submitted the physician's statement to Mr. Menzel, the vice-president of personnel, in support of
her claim that she was handicapped. The purpose of the claim was to avoid teaching her
Mon/Thurs 10:00 AM English 90 course at Chaffey so that she could teach the Thursday 10:00
AM management class at Cal State.See footnote 14
Under this circumstance, Ms. Haney's claim was a
patent attempt to avoid teaching her English 90 class rather than a means to seek an
accommodation for a handicap. Therefore, her claim lacked good faith.
In determining reasonable belief, the tribunal recognizes that an individual's condition and
limitation is not limited to those situations which qualify as a handicap under the statute and its
regulations. An individual may hold a mistaken belief of law or fact regarding his or her health
condition or entitlement to modifications in one's job duties and yet, still possess a reasonable
belief. In Re Capistrano Unified School District, Dkt. No. 89-33-CR, U.S. Dep't of Education, at
34 (ALJ, July 19, 1991), aff'd by Civ. Rts. Rev. Auth. April 30, 1992). The mistaken belief
concept does not, however, eliminate all inquiries and permit an individual an excessively broad,
subjective, or unrealistic evaluation of his or her health problems and physical limitations. Such
an approach would frustrate the purpose of the statute and the regulations. Hence, an objective
standard is applied in determining whether there is a reasonable belief that an individual has a
Ms. Haney's physical restriction was to avoid exertion. This restriction imposes no limitation
of any significance. Moreover, it had virtually no impact upon Ms. Haney's major life activities.
Her life was unaffected except that she could not walk uphill from the gymnasium to her next
class on Mondays.
In addition, the circumstances under which the physical restriction was issued indicate that Ms.
Haney's impairment was insignificant. Ms. Haney's medical records of April 6 -- the day she
first sought medical assistance in the emergency department of Kaiser Permanente -- do not
disclose the imposition of any physical restrictions. Yet, it is common practice for physicians to
note any restrictions imposed on a patient in the patient's records. Also, Ms. Haney's treating
physician did not issue a work-related medical excuse on April 6. Yet, it is common practice for
physicians to issue a work-related medical excuse at the time of the examination or related
incident. Hence, the facts reflect that the treating physician was not particularly concerned with
significantly limiting her physical activity.
The circumstances surrounding the issuance of the physician's restrictions similarly reflect that
Ms. Haney had an insignificant physical impairment. The physician's statement was issued by
Dr. Ambrose on April 15 and following a conference requested by Ms. Haney. Ms. Haney was
distraught and quite emotional during the meeting.See footnote 15
She was complaining apparently [of]
having [a] probl[em] with her departmental chair at work and a physician's statement was a
solution for her problem. It was Ms. Haney, not Dr. Ambrose, who suggested the nature of the
limitation and its duration. At the end of the meeting, Dr. Ambrose issued the medical restriction
even though she was of the view that Ms. Haney's problem was more likely due to a
psychological problem rather than a physical condition. These circumstances suggests quite
strongly that Dr. Ambrose's vague and generalized restriction was intended to assist Ms. Haney
with her vaguely described problem at work rather than to significantly limit her activity due to
her medical condition.
In addition, immediately after presenting her physician's statement to Mr. Menzel on April 15
and before he could take any action in response thereto, Ms. Haney requested a substitute
instructor for her English 90 class at Chaffey. This action confirms that Ms. Haney's motivation
behind the issuance of the statement was to eliminate the scheduling conflict between her English
90 class at Chaffey and her management class at Cal State. Hence, the tribunal concludes that
Ms. Haney did not have a reasonable belief that she was handicapped.
OCR asserts that Ms. Haney had a reasonable belief that she was handicapped. OCR
argues ( Main Br. at 22-23) that--
numerous events documented in her pursuit of an accommodation. Any reasonable
person with Ms. Haney's recurring symptoms of a heart attack and with the interim
diagnosis of a heart impairment, warned by her physician to avoid exertion including
limiting the major life function of walking [footnote omitted] would reasonably believe
that she had a disability and needed a reasonable accommodation.
B. Whether the denial of a request by Ms. Haney for a sabbatical leave constitutes an adverse
In addition to establishing that Ms. Haney engaged in a protected activity, OCR must establish,
as part of its prima facie case, that Ms. Haney was subjected to an adverse employment decision
and that a causal link exits between the protected activity and the employer's action.
OCR maintains that the denial of Ms. Haney's request for a sabbatical leave constitutes an
adverse employment decision. In its view, an adverse action constitutes an action that affects an
individual's employment status, including pay or other factors. In this regard, it cites Collins v.
Illinois, 830 F.2d 692 (7th Cir. 1987), wherein the Seventh Circuit held that an adverse action
was present where an employee lost her own office, phone, business cards, and title as a
consultant even though there was no reduction in pay or benefits. Similarly, OCR notes that an
employer's action which denied a teacher the opportunity to teach a speech/debate class and
receive the accompanying stipend, constituted an adverse action. In Re Capistrano Unified
School District, Dkt. No. 89-33-CR, U.S.Dep't of Education (ALJ July 19, 1991).
Chaffed maintains that an adverse action requires some negative action by the employer with
respect to the employee such as a disciplinary demotion (Smith v. Columbus Metropolitan
Housing Auth., 443 F. Supp. 61 (S.D. Ohio 1977), termination of employment (EEOC v. Kallir,
Philips, Ross, Inc., 401 F. Supp. 66 (S.D. N.Y. 1975), aff'd 559 F.2d 1203 (2d Cir. 1976), cert.
denied 434 U.S. 920 (1977), unjustified evaluations (Mead v. U.S. Fidelity & Guar. Co., 442 F.
Supp. 114 (D. Minn. 1977), or a negative statement to prospective employers (Rutherford v.
American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977). Since Ms. Haney remained
employed by the college and her duties and responsibilities were not affected by the denial of her
sabbatical request, Chaffed argues that there was no adverse action.
It is apparent that Chaffey regards sabbatical leaves as beneficial to the college. First, it
subsidizes the leave by paying each recipient a substantial percentage of his or her salary during
the leave. Second, it is an unwritten prerequisite of approval that the students must benefit from
such a leave. Third, the sabbatical leave process requires the approval by the faculty senate with
respect to the merit of the academic project for which the leave is proposed. Fourth, each
applicant is required, as a condition of a sabbatical, to teach at the school for a specified period
after he or she returns.
At the same time, it is evident that a sabbatical leave benefits the professor. It provides this
individual with an opportunity to research and write in an academic area which , in turn, may
enhance his or her professional credentials.
In the tribunal's view, an adverse action may take one of several forms. It may deny a current
perk, benefit, responsibility, or amenity. On the other hand, it may also be a present action which
denies an employee in the future a perk, benefit, responsibility, or amenity. A sabbatical leave
falls into the latter category. As such, the denial of a sabbatical leave constitutes an adverse
action by Chaffey.
C. Whether there is a causal link between the protected activity and the employer's action.
The last factor of a prima facie case of retaliation addresses whether there is a causal link
between the protected activity and the employer's adverse action. This element may be
established through direct evidence of retaliatory motive or circumstantial evidence which raises
an inference that retaliation may have occurred. East v. Ronnie. 518 F.2d 332, 338 (5th Cir.
1975). Inferences of retaliations may be determined due to the proximity in time between the
protected activity and the purported retaliatory act as well as adverse, disparate treatement by the
employer toward the particular employee. Hochstadt v. Experimental Biology, Inc., 425
F.Supp. 318 (D. Mass. 1976); Grant v. Bethleham Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Assuming arguendo that Ms. Haney engaged in a protected activity, there is clearly proximity in
time between her purported protected activity and the purported act of retaliation. Chaffey was
informed of Ms. Haney's medical problem and physical limitation in April 1988. In all likihood,
these factors were one aspect of Ms. Haney's defense in the subsequent action by Chaffey to
terminate Ms. Haney's employment. Ms. Haney's sabbatical request was denied in April 1989,
approximately five months after the termination action was settled by the parties and within four
months after she was reinstated to her position at Chaffey.
The evidence also suggests, on the surface, that Ms. Haney was subjected to disparate treatment
by Chaffey. During the April 1989 meeting, the Board granted five requests for sabbatical leave
and denied only Ms. Haney's request. Over the nine year period from the academic year
1984-85 through 1995-96, the Board granted approximately 50 requests and, with the exception of Ms. Haney, did not deny any request for a sabbatical leave.
Lastly, the discussion by Chaffey's Board in April 1989 regarding Ms. Haney's sabbatical
request focused, in part, on her termination action although the precise details are somewhat
unclear due to the passage of time.
On the basis of this evidence, the tribunal concludes that there is a causal link between Ms.
Haney's protected activity and the denial of her request for a sabbatical leave.
In summary, OCR bears the burden of production to establish a prima facie case of retaliation
which includes three elements -- (1) that Ms. Haney, as the employee, was engaged in a
protected activity; (2) that she was subjected to an adverse employment decision; and (3) that a
causal link exists between the protected activity and the employer's action. As determined
above, OCR has not established that Ms. Haney engaged in a protected activity. Therefore, OCR
failed to establish a prima facie case of retaliation. Accordingly, the claim of retaliation
regarding the denial of Ms. Haney's request for a sabbatical leave in April 1989 is dismissed.See footnote 16
Approximately one year after Ms. Haney's first request for a sabbatical leave was denied, she
made another request for a sabbatical leave. This second request was for the school year 1990/91
and was submitted in February 1990. At this time, OCR had almost completed its investigation
of Ms. Haney's discrimination complaint regarding the denial of her first request for a sabbatical
leave. Ms. Haney's second request was considered by the Board one month later in its March
1990 meeting. The Board discussed Ms. Haney's request in closed session, as was its normal
practice, and voted to table her request. Thereafter, during the public session of the Board
meeting, the Board announced its decision and explained the basis therefor. In its view, it was
not appropriate to take any action on Ms. Haney's second sabbatical request until the resolution
of current actions pending by Ms. Haney.
The question is whether Chaffey violated the participation clause under 34 C.F.R. § 100.7(e)
when it tabled Ms. Haney's second request for a sabbatical leave. Protection against
discrimination is extended under the participation clause when the employee has made a
complaint, testified, assisted, or participated in any manner in the complaint process under the
Rehabilitation Act. Unlike the opposition clause, protection under the participation clause,
i.e. the complaint process, is essentially absolute and given without consideration of matters such
as whether the complainant acted in good faith or was reasonable or correct as a matter of fact or
law in his or her views. There is no dispute between the parties that Ms. Haney engaged in a
protected activity when she filed her discrimination complaint with OCR in June 1989.
OCR argues that Chaffey violated the participation clause when the Governing Board tabled Ms.
Haney's request for a sabbatical leave. In its view, the Governing Board's explanation for its
action in open session provides direct evidence of this discrimination -- the request was tabled
because of Ms. Haney's pending discrimination complaint.
Chaffey responds with three arguments. First, it argues that discrimination has not occurred
because Ms. Haney was not subjected to an adverse employment action. Second, it asserts that
OCR misconstrues the Board's explanation in that it was not referring to Ms. Haney's pending
OCR discrimination complaint when it spoke of current actions pending that have not been
cleared up. Third, it maintains that the Board's action did not reflect any retaliatory animus and,
therefore, there was no retaliation.
A tabling action on a motion to grant a sabbatical request is somewhat different than the denial of
such a motion which the tribunal addressed earlier in that it reflects a decision not to decide the
matter at that moment. Since one of its effects is, essentially, the denial of the motion for the
sabbatical request, at least for the present time, the tribunal concludes that such an action should
be treated no differently than a denial. Consequently, the tabling action constitutes an adverse
employment action by Chaffey.
With regards to the Governing Board's explanation in open session, the tribunal determines, as a
matter of fact, that the Board's reference to current actions refers to the discrimination
complaint made by Ms. Haney regarding to the denial of her earlier request for a sabbatical. This
discrimination complaint was the only active complaint being investigated in March 1990 and
arrangements with the Board had just been made for interviews of its members during the latter
part of the month as part of that investigation. Hence, the Board's action to table the sabbatical
request was made because of the discrimination complaint made by Ms. Haney which was
pending before OCR and being investigated. As such, its action constituted discrimination.
While the tribunal concludes that the Board's action was discriminatory, it is also apparent that
the Board's action was not made with a retaliatory animus. Discrimination under the statute or
regulation does not require, however, the showing of ill will or hatred.
Based upon the above, it is concluded that Chaffey retaliated against Ms. Haney when its
Governing Board tabled Ms. Haney's second request for a sabbatical leave.
Chaffey raises two other defenses in this proceeding, the equitable doctrine of laches and
equitable doctrine of unclean hands, which bars this proceeding. Under the doctrine of laches, it
is incumbent for Chaffey to prove a lack of diligence or unexcusable delay by OCR and, as a
result, prejudice to Chaffey. Costello v. United States, 365 U.S. 265, 282 (1961)
Both parties agree that this defense is generally not available against the Federal government.
The Court held, in United States Immigration & Naturalization Serv. v. Hibi, 91 S. Ct. 19, 21
(1973) (quoting Utah Power & Light Co. v. United States, 37 S. Ct. 387, 391 (1917)) that [a]s a
general rule laches or neglect of duty on the part of officers of the Government is no defense to a
suit to enforce a public right or protect a public interest. OCR also acknowledges that, in recent
years, this traditional view has suffered a few inroads as noted in S.E.R. Jobs for Progress, Inc. v.
United States, 759 F.2d 1 (Fed. Cir. 1985) where, for example, the defense of laches was
implicitly approved against the Federal government when it was engaged in a commercial type
Chaffey cites several decisions involving the Equal Employment Opportunity Commission, a
Federal agency, for the proposition that the doctrine of laches is a permissible defense in
discriminatory, enforcement actions brought by the agency.See footnote 17
OCR distinguishes these cases
on the theory that the EEOC was acting in its capacity as a representative of the complainant
rather than in its capacity as a sovereign to enforce a public right or protect a public interest.
United States v. Popovich, 820 F.2d 134 (5th Cir. 1987), cert. denied 484 U.S. 976 (1987).
Inasmuch as OCR is acting in its sovereign capacity to enforce a public right or protect a public
interest in the present case, it asserts that the general rule applies and bars the application of
laches against the Federal government.
Under 34 C.F.R. § 101.23, an individual, who submits a complaint, is not a party to the present
proceeding. As such, OCR is not pursuing a cause of action for a specific complainant in the
matter at hand; rather, it is acting on behalf of the sovereign to protect against the use of Federal
funds by a recipient who purportedly engaged in a discriminatory practice. Accordingly, the
doctrine of laches is inapplicable in this action as a matter of law.
Even if the doctrine of laches were applicable, Chaffey cannot establish its second element, a
showing of prejudice as the facts do not support such a determination.See footnote 18
Chaffey maintains that
the delay prejudiced its case because several Board members were unavailable to testify
regarding the Board meetings and the passage of time faded the memories of the two members
who did testify.
Of the two closed Board meetings, the second meeting in March 1990, in which the Board tabled
her sabbatical, is easily addressed. Here, the Board made a public statement in open session
regarding its motivations for tabling Ms. Haney's second request for a sabbatical leave. As a
result, Chaffey suffered no prejudice in establishing the motivation of the Board.
Regarding the closed session of the Board in April 1989, wherein the Board denied Ms. Haney's
first request for a sabbatical, Chaffey did not suffer any meaningful prejudice. First, Chaffey's
attorney wrote a letter to OCR on September 13, 1989 (OCR Ex. 63) explaining the Board's
motivation in denying Ms. Haney's sabbatical request. Second, four of the five Board members
were interviewed in March/April 1990 by OCR during its investigation and the notes of these
interviews are part of the record. Third, the two Board members, who testified, provided the
tribunal with a sufficient insight into the Board's deliberation.
Chaffey also maintains that the delay prevented it from locating Dr. Ambrose, the physician who
issued Ms. Haney's medical excuse. As a result, no testimony was offered concerning the
circumstances surrounding the issuance of Ms. Haney's medical excuse in April 1988. This
argument ignores, however, the notes of Dr. Ambrose which are part of the record. These notes
reveal the circumstances under which the excuse was written and, thus, there is little merit to
Under these circumstances, the doctrine of laches, even if applicable, would not bar OCR's
action in the instant case.
Chaffey argues, also, that this proceeding is barred under the equitable doctrine of unclean hands
which closes the doors of a court of equity to one tainted with inequitableness or bad faith
relative to the matter in which he seeks relief, however improper may have been the behavior of
the opposing party. Cleveland Newspaper Guild, Local 1 v. Plain Dealer Publishing Co., 839
F.2d 1147, 1155 (6th Cir. 1988) citing Precision Instrument Mfg. Co. v. Automotive
Maintenance Mach. Co., 324 U.S. 806, 814 (1945). Chaffey maintains that OCR's actions have
been marred by incompetence, bad faith, and bias and then details a litany of perceived
inappropriate actions by OCR.
Initially, OCR argues, citing United States v. Iron Mountain Mines, Inc., 812 F. Supp 1528 (E.D.
Cal. 1992) and United States v. Stringfellow, 661 F. Supp 1053, 1062 (C.D. Cal. 1987), that this
doctrine is not applicable when it is asserted against a sovereign which acts to protect the public
welfare. In addition, the policy consideration behind the inapplicability of this doctrine to a civil
rights agency, such as the Equal Employment Opportunity Commission, was articulated by the
Ninth Circuit in EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 753-54 (1991). There, the Ninth
Circuit indicated that the policy, if applied, would frustrate a substantial public interest in
eradicating unlawful employment discrimination and in vindicating the rights of victims of such
illegal practice and permit employers to continue unlawful practices and leave their victims
uncompensated. Id. at 753-4. Lastly, OCR asserts that the purported misconduct must be related
to the transaction in question. Since the transaction in question concerns the dealings between
the school and Ms. Haney, Chaffey's complaints about OCR's actions in the subsequent
investigation and hearing process are clearly not relevant concerns under the application of the
doctrine of unclean hands.
The tribunal agrees with the view of the Ninth Circuit that equitable relief should be withheld if
its exercise would frustrate a substantial public interest. Therefore, the unclean hands doctrine
will not be applied in this matter.
Based upon the foregoing findings of fact and conclusions of law, it is HEREBY ORDERED
that Chaffey Community College District's continued eligibility, directly or indirectly, to receive
or apply for Federal financial assistance administered by the United States Department of
Education which supports the Chaffey Community College
District's discriminatory program,
shall be terminated. Such termination shall remain in force until the Chaffey Community
District satisfies the Assistant Secretary of Education for Civil Rights that it has
appropriately remedied its noncompliance with respect to the violation determined above and
until the Chaffey Community College
District satisfies the Assistant Secretary of Education for
Civil Rights that it will comply in the future with all applicable requirements of Section 504 and
the regulations thereunder.
Allan C. Lewis
Chief Administrative Law Judge
Issued: August 21, 1997
In addition to the factual findings in the opinion, the following supplemental findings are made:
1. The individuals below occupied the following positions:
3. As the chairperson for the English Department, Ms. Silliman had the responsibility to
determine the courses to be offered, the time slots for the courses, and the professors to teach the
courses. These responsibilities were delegated to the chairperson of each department pursuant to
the faculty handbook. For the spring quarter of 1988, she prepared an overall schedule of
courses in the latter part of December 1987 and presented each professor or instructor with his or
her proposed schedule during a conference in January 1988.
4. In early January 1988, Ms. Silliman met with Ms. Haney to discuss her proposed schedule.
As devised by Ms. Silliman, Ms. Haney's schedule had courses over a four-day period with
two-hour breaks between classes rather than back-to-back classes, which Ms. Haney preferred. By scheduling her office hours during the two hour breaks, Ms. Silliman felt that Ms. Haney was less likely to leave the campus and, therefore, would be available for student conferences and appointments. In the past when Ms. Haney had back-to-back classes, students had complained that she was not present during her office hours and that she failed to keep appointments.
During the conference, Ms. Haney objected to the proposed schedule and requested, instead, a
three-day teaching week with back-to-back classes. Ms. Haney proposed a schedule to which
Ms. Silliman agreed. Under this schedule, Ms. Haney taught the following courses for the spring
quarter of 1988 as part of her regular teaching duties:
5. In addition to her regular schedule, Ms. Haney elected to teach an additional course during the
spring quarter for which she received additional compensation. This overload course was an
English 90 class scheduled to meet on Thursdays from 6:00 to 9:50 PM.
6. During the spring of 1988, Ms Haney also taught a course at Cypress College on Mon/Wed
from 7:00 to 10:00 PM.
7. Full-time tenured faculty at Chaffey are free to teach at other colleges and universities
provided the teaching assignments do not conflict with their Chaffey teaching assignments.
8. On or about March 16, 1988, Mr. Arias, another professor in the English department,
approached Ms. Haney with an offer to switch English classes. Mr. Arias was scheduled to teach
an early morning English 91 class on Tuesdays and Thursdays from 8:00 to 9:50 AM -- a time
period which he disliked. Mr. Arias proposed that Ms. Haney teach his English 91 course and in
exchange, he would teach one of Ms. Haney's classes. Ms. Haney declined the proposal.
9. On March 24, 1988, Ms. Silliman was advised by the department's secretary, who in turn had
a conversation with Ms. Haney, that Ms. Haney objected to her classroom assignment in another
building for her 10:00 AM Mon/Thur English 90 course. Ms. Silliman responded to Ms. Haney
in a note that, inter alia, [e]veryone else has walked in the past. Now it's your turn. It's the fair
thing to do.
10. In response to Ms. Silliman's handwritten note of March 24, 1988, Ms. Haney wrote a
memorandum to her departmental chair Ms. Silliman on March 24, 1988, in which she
questioned the assignment of a classroom in the gym building for her English 90 class scheduled
on Mondays and Thursdays from 10:00 to 11:50 am. Ms. Haney questioned the assignment on
two grounds: her seniority and that the physical effect from walking up the hill to the Language
Arts building on Mondays would affect her ability to teach her next class.
11. Mr. Chaney was the chair of the management department at Cal State University at San
Bernardino. He was responsible for recruiting full and part-time faculty for the management
department. Shortly before the beginning of the spring 1988 quarter, an unexpected opening
became available to teach Management 330 (Legal Environment of Business), a business course
which required an instructor with a law degree. This course was scheduled for Tuesdays and
Thursdays from 10:00 to 11:50 AM.
Mr. Chaney spoke with other members of the faculty regarding recommendations for possible
candidates. Mr. Patterson, one of his associates in the department, recommended a friend, Ms.
Haney. Thereafter, Mr. Patterson called Ms. Haney and arranged an interview over lunch for
Thursday, March 24, 1988, to be attended by Ms. Haney, Mr. Chaney, and himself.
The primary purpose of the March 24, 1988 lunch was to interview Ms. Haney for the opening in
the spring quarter. During the interview, Mr. Chaney inquired several times whether Ms. Haney
had any scheduling conflicts at Chaffey with the Cal State Management 330 course and Ms.
Haney consistently indicated that she had no conflict. During the course of the meeting, Mr.
Chaney made the best offer of employment that was possible to Ms. Haney, that is, though he
was not authorized to make a formal offer, it was almost certain that Ms. Haney would be hired
when the authorization was obtained.
A formal offer was made to Ms. Haney within a day or two and Ms. Haney orally accepted the
position. On Tuesday, March 29, 1988, Ms. Haney completed the application form for
employment at Cal State and signed the contract of employment on April 4, 1988.
In her application for the Cal State position, Ms. Haney indicated that her principal teaching
fields included business law, evidence, torts, contracts, criminal, corporations, agency and
partnership law. She did not disclose any condition or physical impairment which would impair
her performance as an instructor.
12. On April 1, 1988, Ms. Haney wrote a memorandum to Ms. Silliman to request approval of a
change in courses between Mr. Arias and Ms. Haney. Ms. Haney indicated that Mr. Arias had
agreed to exchange his English 91 course which met on Tues/Thurs at 8:00 to 9:50 AM with Ms.
Haney's English 90 course which met on Mon/Thurs at 10:00 to 11:50 AM. In support of her
request, Ms. Haney cited the two factors advanced in her March 24 memorandum, i.e. seniority
and physical exhaustion. She also added that this change would benefit her students because it
means that she will not only have classes five day a week at Chaffey but will also be available to
meet with her students five days a week with or without appointments.
13. On April 4, 1988, Ms. Silliman wrote to Ms. Haney and denied her April 1 request for a
change in schedule on the grounds that the request did not put the students' needs first, i.e.
students may select certain courses based upon preferences for certain teachers, and that the
request was made too late.
14. By memorandum dated April 11, 1988, Ms. Silliman informed Ms. Haney as follows:
Ms. Haney refused to disclose any details regarding the medical condition and, consequently, in
order to give her the benefit of the doubt, Ms. Silliman proposed that she deliver a physician's
statement to the vice-president of personnel, Mr. Menzel, and a schedule change between Mr.
Arias and Ms. Haney would be authorized.
Ms. Haney was informed to obtain the physician's statement by April 21 and, otherwise, to go
back to her original schedule or further administrative action would be taken for wilful disregard
of her teaching schedule.
This memorandum was copied to Mr. Menzel and Mr. Arias.
17. In Ms. Haney's view, her initial request for an exchange of classes with Mr. Arias was a
contractual matter. When Ms. Silliman requested a physician's note on April 12, the dispute
changed from a contractual matter to a medical issue. Therefore, she was relieved of any
obligation to find somebody to exchange classes. A medical excuse would, in her view, relieve
her of any obligation to teach the English 90 class or any substitute class.
18. Mr. Arias returned to his scheduled 8:00 AM English 91 course during the latter part of the
second or the beginning of the third week of the spring quarter. During the period in which Ms.
Haney taught Mr. Arias' English 91 course, she frequently left the Tuesday 8:00 to 9:50 AM
class early in order to drive to Cal State to teach her 10:00 AM class in Management 330.
19. On a certification of disability and/or return to work or school form dated April 15, 1988, Dr.
Ambrose of Kaiser Permanente wrote in the category regarding temporary activity restrictions
regarding Ms. Haney--
21. By memorandum dated April 15, 1988, Ms. Haney wrote Ms. Silliman as follows:
22. On Monday, April 18, 1988, a substitute instructor began teaching Ms. Haney's Mon/Thur
English 90 class on a day-to-day basis. Ultimately, the instructor taught the course through the
first class of the first week in June.
23. After receiving Ms. Haney's physician's statement on April 15, 1988, Mr. Menzel made
inquiries of Ms. Stark and Ms. Silliman in order to become apprised of the situation. Ms.
Silliman informed him of the circumstances -- that Ms. Haney had initially raised the issue that
she did not want to teach in the gymnasium building, that Ms. Haney had switched courses
without her approval, and that Ms. Haney had an active schedule. She was teaching an overload
class at Chaffey and at one or two other schools and doing some professional consulting work.
In addition, Ms. Silliman indicated that she had heard from a student and part-time instructor that
Ms. Haney was teaching at Cal State on Tuesdays and Thursdays.
24. On April 21, 1988, Ms. Haney wrote Ms. Reeves, the division assistant in the English
Department, as follows:
Ms. Haney indicated that it was extremely difficult for her on Mondays to walk or drive from her
English 90 class located in the gym building to her English 91 class located uphill in the
Language Arts building. She related that, in the opinion of her physician, it was not in her best
interest to teach these back-to-back classes as scheduled.
Ms. Haney indicated that her physician was not aware of the nature and extent of her professional
activities outside her regular teaching duties at Chaffey. She agreed that her physician should be
so informed in order to permit him to make an informed assessment. Based upon these
circumstances, Mr. Menzel advised that the medical statement would not support her continued
failure to meet her spring quarter teaching assignment at Chaffey. In addition, Mr. Menzel
indicated that he expected Ms. Haney to return and teach her assigned English 90 course.
26. At some point after the meeting, Ms. Haney recalled that she had informed one of the cardiologists of her teaching and other activities; however, she saw no need to inform Mr. Menzel of this fact or to apprise Dr. Ambrose of the extent of her various activities and obtain another doctor's statement.
27. After the April 22, 1988 meeting, Mr. Menzel advised Ms. Stark that Ms. Haney's medical
statement was not acceptable. In addition, Mr. Menzel was suspicious of Ms. Haney's statement
that she was incapable of driving between classes in light of her extensive schedule. As a result,
Mr. Menzel inquired of Cal State as to whether Ms. Haney was teaching there. By April 28,
1988, Mr. Menzel had received confirmation of Ms. Haney's employment and the class hours of her course.
28. On April 25, 1988, Ms. Silliman wrote Ms. Haney a memorandum which provided that--
30. In May 1988, Mr. Menzel was informed by Ms. Silliman that Ms. Haney was not instructing
her English 90 course.
31. Mr. Menzel then arranged for a meeting on Tuesday, May 31, 1988, with Ms. Haney and
attended by Ms. Silliman and Ms. Vaszil, the secretary of Mr. Menzel.
Mr. Menzel advised Ms. Haney that he had been just informed that she was not teaching the
10:00 AM Thursday class of her English 90 course as well as the 10:00 AM Monday class. This
failure to teach the English 90 course had required Chaffey to hire a substitute instructor.
Mr. Menzel inquired several times why Ms. Haney had not taught these classes on Mondays and
Thursdays. Ms. Haney responded, in effect, that her failure to teach the Monday class was due
to medical reasons. As to her failure to teach the Thursday class, Ms. Haney attributed this to
medical reasons. As another explanation, she also indicated that she made a decision, not
previously disclosed to the administration, that it was unfair and confusing to the students to
have two instructors, a substitute instructor on Monday and Ms. Haney on Thursday. Therefore,
she let the substitute instructor teach the entire course.
Ms. Haney was informed by Mr. Menzel that her failure to teach this course constituted a willful
refusal to perform approximately one-third of her regular spring quarter teaching assignment
without reasonable cause. Ms. Haney was again directed to return to the classroom and teach the
next scheduled class on Thursday, June 2, 1988, and to complete this teaching assignment. Ms.
Haney agreed to return to the teaching assignment.
32. At the May 31, 1988 meeting with Mr. Menzel, Ms. Haney did not disclose her teaching
conflict. In her words, it wasn't an issue. In Ms. Haney's mind, Mr. Menzel's directive to
return to teach her English 90 course was an effort to exercise his authority to make her teach
despite her doctor's statement.
33. Throughout the spring quarter and until the June 17, 1988 meeting with Mr. Menzel, Ms.
Haney never informed or admitted to the Chaffey administration, including Mr. Menzel, that she
had a teaching conflict at Chaffey due to the Cal State management course.
34. On June 2, 1988, Mr. Menzel had a copy of his memorandum dated June 2, 1988, delivered
to Ms. Haney. The memorandum outlined his understanding of the two meetings held with Ms.
Haney on April 22, 1988, and May 31, 1988. It indicated, also, that it would be placed in Ms.
Haney's personnel file in twenty days and that Ms. Haney had the right to respond thereto.
35. While Ms. Haney taught her English 90 course during the last two weeks of the quarter, the
actual class time ranged between 30 minutes and 90 minutes. On these occasions, Ms. Haney
testified that she could not locate a parking space at the gymnasium and parked illegally.
36. Mr. Patterson taught Ms. Haney's last several classes at Cal State.
37. On Friday, June 17, 1988, a meeting was held by Mr. Menzel with Ms. Haney. Ms. Vaszil
was present to take notes. The purpose of the meeting was to present Ms. Haney with a
statement of charges relating to a proposed suspension and termination of employment which
Mr. Menzel did. In addition, Ms. Haney was given a packet of information which contained the
backup information on which the charges were based. After the charges were presented, a brief
discussion ensued and the meeting was adjourned.
38. The Statement of Charges against Ms. Haney were signed by the President of Chaffey on
June 17, 1988.
39. On June 18, 1988, Mr. Menzel briefed the Governing Board in closed session regarding the
proposed action to suspend and terminate Ms. Haney. Prior to the meeting, each Board member
was presented with a packet of information which included the statement of charges prepared by
legal counsel, a draft letter by President Young to Ms. Haney, and approximately 60
memorandums and reports authored by Ms. Haney, Ms. Silliman, and others regarding the events
of the spring of 1988. Mr. Menzel outlined briefly the nature of the accusations and the
termination process, if the resolution was passed. After a 30 minute discussion, the Board voted
unanimously to suspend Ms. Haney and proceed with a termination action. On June 18, 1988,
Ms. Haney was suspended effective June 20, 1988, and informed that the Board intended to
dismiss her in 30 days based upon the statement of charges
40. The statement of charges by the President of Chaffey provided seven specific acts or
omissions which warranted suspension and termination--
1. Ms. Haney's failure to teach the English 90 class on Mon/Thur from April 4 to June
17, 1988, without justification and without authorization.
2. This failure to teach required the college to hire and pay for a substitute instructor .
3. Ms. Haney failed to teach her English 90 class after she was specifically directed to teach this class on May 31, 1988, by Mr. Menzel, the Executive Director.
4. On April 4, 1988, Ms. Haney falsely represented to the administration -- Ms. Silliman, her division chair -- that she could not teach the English 90 course due to medical reasons when, in fact, Ms. Haney failed to teach this course because of a teaching obligation with Cal State.
5-7. On three other occasions, Ms. Haney falsely represented to the administration (Ms. Silliman on April 15, 1988, and Mr. Menzel on April 22 and May 31, 1988) that she could not teach the English 90 course due to medical reasons.
These actions or omissions reflect prohibitive immoral conduct, dishonesty, evident unfitness for
service, willful refusal to perform regular assignment without reasonable cause and persistent
refusal to obey the school laws of the State of California.
41. On June 18, 1988, Chaffey notified Ms. Haney that she was suspended as of June 20, 1988,
and that the Governing Board intended to dismiss her in 30 days based upon the Statement of
Charges. Thereafter, Ms. Haney filed, as permitted by California law, a request for an
administrative hearing regarding Chaffey's action to suspend and terminate her employment.
42. Within the 30 day period, Ms. Haney filed a request for a hearing to contest Chaffey's action
to suspend and terminate her employment.
43. On October 28, 1988, Chaffey and Ms. Haney entered into an agreement which resolved the
suspension and termination action by Chaffey through a settlement. The agreement provided, in
pertinent part, that Ms. Haney shall be reinstated on January 3, 1989, with no break in service by
virtue of her June 1988 suspension and that she receive the sum of $4,000 unless she obtained
employment elsewhere which, in that case, she would receive $15,000. Ms. Haney released any
claims she may have at this time against the school including any claims relating to her
employment and under state or federal civil rights laws. The parties agreed that
neither party admitted to the truth or merit of the position asserted by the other party or the
falsity or lack of merit of the position asserted by it. The parties further agreed that the statement
of charges, notice of suspension and all documents relevant to the proceedings would be sealed
by Chaffey and not released to any party except upon receipt of a subpoena.
44. Between 1984 and 1995, the Governing Board authorized termination actions against
employees only three times.
45. On January 3, 1989, Ms. Haney returned to her position of English instructor for Chaffey.
46. On February 1, 1989, Ms. Haney submitted a request for a sabbatical leave for the fall of
1989. Subsequently, her division chairperson recommended the request be granted; the
Personnel Office Administrator certified that Ms. Haney had served the required number of
years, and the faculty senate approved the objectives of her request.
47. On April 27, 1989, the executive vice-president and the president of Chaffey Community
College signed a District Governing Board Agenda item which recommended that the Chaffey
Community College District Governing Board approve Ms. Haney's request for a sabbatical
leave for the academic year 1989-90.
48. The estimated fiscal effect of Ms. Haney's proposed sabbatical leave for the 1989-90 school
year was a net savings of $1,000; that is, $1,000 is the difference between the cost of a
replacement teacher and Chaffey's payment of 70% of her salary and benefits to Ms. Haney
during the sabbatical leave.
49. Ms. Haney's 1989 request for a sabbatical leave was presented to the Governing Board and
considered at its April 27, 1989 meeting. The Governing Board denied Ms. Haney's request for
a sabbatical leave. At the same meeting, the Governing Board approved the requests for
sabbatical leave for five other individuals.
50. Between the 1984-85 school year and the 1995-96 school year, Chaffey's Governing Board
approved the approximately 50 requests for sabbatical leave made by faculty members. All
requests other than Ms. Haney's requests were approved. None of these applicants had been the
subject of a disciplinary proceeding.
51. The Governing Board meets monthly. Approximately one week prior to a meeting, the members are provided with reports and packages of materials regarding matters for consideration at the forthcoming meeting. The meetings are short and cover many topics.
52. The Governing Board posses the sole discretionary authority to authorize sabbatical leaves.
It considers sabbatical leave requests for the following school year in March or April of the
current year. Before the sabbatical leave request is presented to the Board, a member of the
faculty must prepare a sabbatical leave request which outlines the need for the sabbatical and the
objectives of the sabbatical. The requested leave must be recommended by the chairperson of
the applicant's division In addition, the Personnel Office Administrator must certify that the
individual has served the required number of years and is otherwise eligible and the Faculty
Senate must certify, by a majority vote, that the objectives of the requested sabbatical leave
request will enhance the professional development of the applicant and the educational program
of the school.
Materials compiled for review regarding sabbatical leave requests were provided to the Board
approximately one week prior to the board meeting. The record does not reflect the nature of
materials provided to the Board in this case. During this period in issue, there were no specific
guidelines employed by the Board to determine whether a sabbatical request should be granted.
Though there was some discussion in closed session regarding the merits of each applicant by the
Board before a vote was taken on a motion to grant a sabbatical leave request, each Board
member used his or her standards in evaluating the request and, ultimately, voting upon the
merits of an applicant's request.
53. During the 1989-90 and 1990-91 school years, the Governing Board included Mr. Barton,
Mr. Treadway, Ms. Scully, Mr. Edmonson, and Dr. Bascoby.
54. Mr. Barton became a trustee during 1984 and had served as a trustee continuously through
the hearing held in March 1996. He held the position of the president of the Board during the
years in issue.
Mr. Barton testified as follows. The Board was in a state of shock that Ms. Haney submitted a
sabbatical request some four weeks after she returned to work and so soon after the conclusion of
her disciplinary proceeding.
In his view, a sabbatical was a reward, not an entitlement, for an instructor. There were two
criteria for consideration -- whether it was right for the school and whether it was right for the
students. Whether a sabbatical would benefit the teacher individually was not a consideration.
In his view, Ms. Haney was not deserving of a sabbatical. The recent termination and suspension
proceeding resulted, in effect, in a suspension of Ms. Haney for one quarter without pay. Ms.
Haney had a history of pursing complaints against the College which, in turn, had required the
school to expend considerable sums to defend itself. In his judgment, he had considerable doubt
whether Ms. Haney would fulfill her commitments set forth in her sabbatical request and whether
she would return to the school after her sabbatical leave -- all requirements of a sabbatical leave.
In addition, Mr. Barton testified that, at the time of the Board discussion of Ms. Haney's first
request, he was aware of the disciplinary charges only in a general sense and had only a vague
recollection of some medical problem that Ms. Haney had. Other members of the Board were
apparently of the view that Ms. Haney was not an outstanding teacher and, therefore, not
deserving of a sabbatical.
55. Mr. Treadway has been a member of the Governing Board since 1984. Mr. Treadway was
interviewed by OCR in April 1990 and testified at the hearing. In reviewing sabbatical requests
for Board approval, he considers, generally, the subject matter of the sabbatical study, whether it
is relevant to the applicant's classes and the extent to which it will benefit the students and the
school. In his view, there was questionable behavior on Ms. Haney's part when she used sick
leave at Chaffey to avoid her teaching her English 90 course. As a result, Ms. Haney collected
her salary at Chaffey and caused Chaffey to incur the expense of a substitute instructor while Ms.
Haney also taught and was paid for teaching a class at Cal State during the time slot for her
English 90 class. In his opinion, this circumstance cast considerable doubt upon whether Ms.
Haney would fulfill the commitments in her sabbatical request.
56. Ms. Scully was a member of the Board for eight years when she was interviewed by OCR in
March 1990. In her view, the Board examines each sabbatical request to determine whether the
leave will benefit the school or its students. She voted against a sabbatical leave for Ms. Haney
due to her disciplinary record; however, she could not recall the details of Ms. Haney's
disciplinary record during the interview.See footnote 20
57. Mr. Edmonson had been a member of the Board since 1981. He was interviewed by OCR in
March 1990 and indicated that he voted against the sabbatical request by Ms. Haney because she
was not ethically qualified. In his view, Ms. Haney's actions regarding the Cal State matter
involved misconduct and dishonestly on her part.
58. For several years prior to 1988, the Governing Board had voiced concern regarding the
sabbatical leave policy, including the need for better criteria, better cost data, better evaluation
process of applicants, and whether sabbaticals should be given at all. The Board held the view,
generally, that the approval of Ms. Haney's request for a sabbatical leave would communicate
the wrong message to the faculty, that is, sabbaticals are not meritorious awards and are available
to members who have been disciplinary problems.
59. The policy of the Governing Board is to announce publicly only those requests for sabbatical
leave which are granted. Moreover, it is also the practice of the Governing Board of Chaffey not
to disclose discussions relating to matters deliberated in closed session. In conformance with this
practice, the Board did not inform Ms. Haney of its basis for not granting her request for a
sabbatical leave made during the 1989-90 school year.
60. In response to a request by California's Department of Fair Employment and Housing. legal
counsel to Chaffey wrote on September 13, 1989, that--
62. In February 1990, Ms. Haney submitted another request for a sabbatical leave.
Subsequently, her division chairperson recommended the request be granted; the Personnel
Office Administrator certified that Ms. Haney had served the required number of years, and the
faculty senate approved the objectives of her request.
63. The estimated fiscal effect of Ms. Haney's proposed sabbatical leave for the 1990-91 school
year was a net savings of $300; that is, $300 is the difference between the cost of a replacement
teacher and Chaffey's payment of 70% of her salary and benefits to Ms. Haney during the
64. On March 22, 1990, the Governing Board tabled the consideration of Ms. Haney's request
for a sabbatical leave. The Board's action was grounded upon its belief that any action on Ms.
Haney's second sabbatical request, whether to grant or deny, was not appropriate until the
resolution of Ms. Haney's discrimination complaint against Chaffey regarding the denial of her
first request for a sabbatical leave in the preceding year.
65. On May 6, 1990, Ms. Haney wrote Ms. Fernandez--
67. In March 1979, Ms. Haney was approximately four months pregnant and suffered abdominal
pains while walking on the hill at Chaffey. She was taken to the hospital and had suffered a
miscarriage. She blames the hill for the miscarriage.
68. On March 22, 1988, Ms. Haney called the urgent care nurse at her medical care provider,
Kaiser Permanente, and notified the nurse that she was experiencing sharp like electrical shocks
in her left chest area every three seconds or so. She also reported shortness of breath, light
headedness, fatigue and palpitations. The nurse instructed her on the urgency of being seen for
an evaluation but Ms. Haney indicated she could not go to the emergency room at the present
time and would go as soon as possible. Subsequently, Ms. Haney did not go to the emergency
69. On April 6, 1988, Ms. Haney experienced severe chest pains while walking on the hill at
Chaffey. Thereafter, she drove herself home. While at home, she began to vomit and, thereafter,
she call the emergency room at Kaiser Permante and was told to come in for an examination.
Ms. Haney presented herself in the emergency department in the late afternoon and complained
of acute chest pain (anxiety) which had recurred over the years. She described the pain as
radiating into her left armpit and hurts when she takes a deepen breath. She complained of
shortness of breath, diaphoresis, and edema of the extremities to the nursing assistant. Upon
examination by the doctor, Ms. Haney indicated that she suffered a worse episode today which
lasted approximately 3 minutes. She was given an echocardiogram. The doctor's impression
was possible chest wall syndrome or esophageal reflex anxiety. Subsequently, she was
discharged to go home. There was no mention in the reports and notes by the medical providers
that physical restrictions were placed on Ms. Haney.
70. On April 15, 1988, Ms. Haney returned to Kaiser Permanente and sought a physician's
statement. During her conference with Dr. Ambrose, the attending physician, Ms. Haney became
quite emotional and Dr. Ambrose, after a discussion with her, indicated that Ms. Haney's
physical problem was more likely due to a psychological problem rather than a physical
condition. Dr. Ambrose recommended that Ms. Haney see a counselor. Dr. Ambrose's notes of
the conference are as follows:
72. On June 23, 1988, a medical secretary of Kaiser Permanente issued a To Whom It May
Concern Letter which reflected the medical attention provided Ms. Haney during 1988.
Following the April 15 meeting with Dr. Ambrose, Ms. Haney had under gone only an
echocardiogram. Ms. Haney was to be notified in the future of the date for a treadmill test.
73. On August 3, 1988, Ms. Haney was evaluated by Dr. Whittaker. Dr. Whittaker interviewed Ms. Haney regarding her problems, performed a regular physical examination, and reviewed the laboratory tests which consisted of an EKG of August 3 and a treadmill stress test of August 2.
Dr. Whittaker's impressions were that the chest pain in the form of electric shock was noncardiac
and that epigastric and subcostal pain was possibly due to mitral valve prolapse and the
palpitations were easily controlled on a low dosage of beta blocker. Dr. Whittaker's plan was to
provide Ms. Haney, who was anxious and intermittently crying during the examination, with
reassurance; advise the application of moist heat to her chest and advil for the next week; and
recommend that she return in one month. Ms. Haney was not prescribed therapy in the form of a
74. According to the medical literature on mitral valve prolapse, the palpitations associated
therewith are frequently harmless and treatment is not needed. More serious arrhythmias may be
treated with standard antiarrhythmic drugs.
75. On March 19, 1990, legal counsel of Chaffey wrote to OCR and confirmed that interviews of
the board members will conducted by investigators representing OCR and California's FEHA
beginning March 22, 1990.
76. OCR interviewed the members of Chaffey's Board and Chaffey employees as follows:
77. Ms. Haney filed the following complaints with state or federal agencies:
1. Suspension/termination matters -- on August 4, 1988, with the California Department of Fair Employment and Housing. Complaint also forwarded to OCR.
2. Denial of first sabbatical request -- on June 2, 1989 with OCR.
3. Denial of first sabbatical request -- on July 18, 1989 with California Department of Fair Employment & Housing.
4. Denial of second sabbatical request -- on December 13, 1990 with California Department of Fair Employment and Housing and EEOC.
78. On August 4, 1988, Ms. Haney filed a complaint against Chaffey based upon race
discrimination with the California Department of Fair Employment and Housing. Ms. Haney
alleged several instances of discrimination including the most instance in which she was
suspended on June 17, 1988, because she provided the college with a forged doctors note and
that [o]ther non-Black instructors have never had their doctors notes questioned as mine was.
Pursuant to the settlement agreement between Ms. Haney and Chaffey, Ms. Haney requested, on
November 22, 1988, the Department of Fair Employment and Housing and the federal agency
(EEOC or HUD) to cease any further proceeding with regard to her complaint in light of her
October 28, 1988 settlement with Chaffey. Because OCR represents the interest of the United
States, this settlement did not affect its investigation or enforcement of the law.
79. On August 17, 1988, OCR wrote Chaffey that an individual [Ms. Haney] had lodged a
complaint on August 4, 1988 which alleges a pattern or practice of discrimination against
minority staff in general and Black staff in particular which results in an adverse impact on the
minority/Black students of the College.
OCR indicated that the complainant describes several instances of racial discrimination, one of
which was the College's denial of due process to the complainant in personnel matters such as a
matter relating to her class relocation, her performance evaluation, the requirement that she
submit sick forms, and her supervisor's refusal to switch classes between her and a coworker
because of her race and because she refused to join other College staff in attacking an employee
who had filed charges of discrimination against the College.
OCR noted that it will investigate the complaint and will attempt to determine within 90 days of
the initiation of the investigation whether or not the College has violated Titles VI or IX.
80. By form letter dated June 16, 1989, OCR informed Chaffey that it had received a complaint
on June 2, 1989, alleging discrimination by the school in violation of Title VI and Section 504 of
the Rehabilitation Act of 1973.
Ms. Haney filed a similar complaint of discrimination on July 18, 1989, with the California
Department of Fair Employment & Housing. In her opinion, her request for sabbatical leave was
denied in April 1989 due to her race and in retaliation for opposing unlawful racial
discrimination. More particularly, Ms. Haney stated that the Board granted sabbatical leave for
several non-Black teachers when she was denied in April and that she was relegated to teaching
in the gym while other tenured professors with less seniority and part-time instructors were given
priority over the location of their classes.
81. On December 10, 1990, OCR wrote Chaffey to inform it that OCR's preliminary assessment
of the evidence indicates that the reason for the denial of the sabbatical requested by Dr. Gloria
Haney was not, as she alleged, in retaliation for her filing a complaint with OCR. There is
substantial evidence that the reason her request for a sabbatical was denied was directly related to
attempts made in Spring 1988 by the administration to discipline, suspend or dismiss her. This is
of concern to OCR because our files contain documents which strongly suggest that the adverse
action taken against Dr. Haney in Spring 1988 was due, at least in part, to efforts on the part of
Dr. Haney to obtain reasonable accommodation from her employer for a handicap.
82. OCR interviewed Ms. Haney during its investigation and notes were taken during the
interview. These notes, however, were not made available to Chaffey, as best the tribunal can
determine, and they were not proffered as an exhibit by OCR.
83. On July 13, 1994, counsel for OCR and Chaffey met to discuss voluntary resolution of this
matter. On August 25, 1994, OCR informed Chaffey of its intent to recommend to the Assistant
Secretary for Civil Rights that an enforcement proceeding against Chaffey be instituted.
84. On December 13, 1990, Ms. Haney filed another complaint with the California Department
of Fair Employment and Housing and EEOC. Ms. Haney alleged that she was denied a
sabbatical leave on April 2, 1990, and maintained that the denial was due to her race (Black) and
in retaliation for filing a prior complaint with the Department of Fair Employment and Housing.
Her belief was based on the fact that she was the only Black professor who applied for sabbatical
leave and the only applicant denied. After filing two previous complaints with California's
DFEH (August 4, 1988 and July 18, 1989), she adds that she continues to be denied a sabbatical.
85. Chaffey Community College District is an institution of public higher education organized
and existing under the laws of California and is vested with responsibility for the general
management and control of Chaffey Community College.
86. Chaffey received during Federal fiscal years 1988 through 1995 and receives or has applied
for Federal financial assistance administered by the U.S. Department of Education, either directly
from the U.S. Department of Education, or indirectly from the California State Department or
California College Agency.
87. College District has submitted to the U.S. Department of Education, an Assurance of
Compliance with Section 504 and the regulation thereunder.
88. Chaffey Community College District receives or has applied for Federal financial assistance administered by the U.S. Department of Education, either directly from the U.S. Department of Education, or indirectly from the California State Department of Education or the California Community Colleges Agency.See footnote 21 21/
Section 504 of the Rehabilitation Act of 1973, as amended, provides that--
I find that Ms. Haney's testimony lacked candor and credibility. For example,
testified that she did not request a course exchange with Mr. Arias in order to teach at Cal State.
The record reflects otherwise. She represented, falsely, to Mr. Chaney of Cal State that she had
no conflict with the Thursday 10:00 AM management class when, in fact, she had a conflict with
her English 90 course. After this representation, she immediately approached Mr. Arias to
arrange a course exchange at Chaffey which would eliminate her conflict. Hence, it is evident
that the Arias course exchange was engineered by her in order to teach at Cal State.
Ms. Haney also testified that the purpose of the April 15 physician's statement and her April 15
request for a substitute instructor for her English 90 course was to obtain an accommodation in
the form of a classroom exchange. At this point, Ms. Haney had been teaching almost two weeks
at Cal State and was teaching Mr. Arias' course at Chaffey. On deposition
, Ms. Haney testified
that, once she produced the physician's statement
, she was no longer obligated to teach the
English 90 course. Hence, the physician's statement was not related to a request for a different
classroom. Moreover, Ms. Haney's request for a substitute instructor does not constitute a
request for a different classroom. Unlike a request for a different classroom, the request for a
substitute instructor infers that the assigned instructor will no longer teach the course . Such a
request is, however, fully consistent with Ms. Haney's intent to continue to teach at Cal State on
Lastly, Ms. Haney testified that, during the April 22 meeting with Mr. Menzel, she informed him that she wanted to teach the English 90 course, but in a different classroom. There is nothing in the record that suggests this was true and every action by Ms. Haney, as noted above, is entirely inconsistent with such a statement.