Employee lawsuits clog case docket

Andrew Tellijohn

Wearing a wry smile, Mark Rotenberg says the University should open a kiosk where people could more conveniently drop off their lawsuits against the University.
Rotenberg, lead attorney in the Office of the General Counsel, said his attorneys close a case nearly every other business day — only to have it replaced just as often with a fresh one.
“If we go to lunchtime without being served with a case, we’re having a good day,” he quipped. He explained that a steady stream of lawsuits open and close at roughly a 100-per-year clip. “It has become, for too many, almost a sport to file an action against the University.”
According to the last four annual reports given to the Board of Regents by the general counsel, the University manages about 230 open cases at a time.
Most of the cases aren’t as high profile as the $100 million ongoing lawsuit with the National Institutes of Health. However, the general counsel keeps busy with smaller cases revolving around such issues as employee grievances and tenure terminations.
Attorneys cite concrete reasons for the high numbers, and officials across the University are seeking solutions to those problems. If everything goes according to plan, Rotenberg said there will be a decrease in the caseload soon.
Feeding the lofty load

On average, 70 percent of cases brought against the University stem from employment laws. Near the end of his term, former University President Nils Hasselmo identified human resources as a priority area due for an upgrade.
Many of the outstanding lawsuits are filed by current and former employees upset with disparities in the handling of grievance issues.
Pamela Young, a former employee in Hasselmo’s office, recently won a settlement worth more than $51,330. According to the Hennepin County Court complaint, Young said she was promised a job in her old department if she would work one year in the Department of Women’s Intercollegiate Athletics.
University officials denied any wrongdoing in Young’s case. Carol Carrier, acting vice president of human resources, wouldn’t comment on specific cases. But she said the department is in the process of redesigning its policies to make them more uniform.
The University’s sheer size has also played a large role in creating contention, Rotenberg said.
“It makes for much variability in treatment of University employees,” he said.
In the 1970s, Rotenberg said, general counsel offices didn’t exist at most universities. Litigation was primarily handled by outside attorneys and friends of the schools.
Since then, more laws have been created to protect employees. These changes, which allow more avenues for pursuing complaints, coincided with the University’s increased caseload as well.
A reputation as a wimpy defendant has also haunted the general counsel’s office. Rotenberg said in the past, people might have believed the school was an easy sue. Whenever anyone filed suit against the University, the school tried to settle without a fight. In the years since Rotenberg took the helm, he said he’s tried to change that perception.
While still common, Rotenberg said the University only negotiates settlements when the school will benefit from avoiding a lengthy trial or when the University admits to wrongdoing.
The nobility of a large, respected land-grant research institution plays a huge role in settlement talks, he said. The University does make mistakes at times, and Rotenberg said he feels the school tries to make amends.
But two local attorneys who specialize in employment law disagree with Rotenberg’s assessment.
Marshall H. Tanick, whose involvement in University legal issues spans dozens of cases and several years, said the University is no better than other large institutions or corporations when it comes to owning up to their mistakes.
“I haven’t seen any employer, in my judgment, that does a good job of stepping up to the plate,” he said. “I don’t think the University is particularly noteworthy in that respect.”
Tanick also said the University has always taken a hard stance in fighting cases — he hasn’t noticed any difference in attitude since Rotenberg arrived.
Judy Schermer, a local attorney specializing in employment law, won a $532,933 judgment in January for Robert J. Shaw in his disability discrimination case against the University. She said dealing with the general counsel’s office resulted in more deadlocks than compromises.
Both attorneys said the school might actually be worse than other large institutions at accepting responsibility for their misdeeds.
Tanick cited several reasons — such as educated, well-paid employees who are more aware of their rights than employees at other companies — as reasons why the University might find its docket unusually large.
Searching for solutions
In the past, medical malpractice suits against the University hospital comprised 10 to 15 percent of the University’s docket. Because the hospital was sold to Fairview Health Systems, the University’s backlog of hospital cases will slowly close, said Bill Donohue, deputy general counsel.
The University is still liable for students doing residencies at Fairview. Donohue said that in the past, most malpractice suits have stemmed from incidents involving medical school residents.
However, non-malpractice cases such as slip-and-fall incidents, discrimination and employment cases that originate in the hospital will also disappear.
With the changing human resources guidelines, employment cases from other areas of the University should decrease as well, Rotenberg said.
Hasselmo’s vision of updating these policies became clear through the Denny Commission Report, a volunteer-driven examination of the University’s human resources policies. The report recommended changes in a number of areas.
The commission has plans for more standard procedures, better detailed training programs for all full-time hirees and an overall update of the system.
The changes weren’t designed specifically for the cause of relieving the general counsel’s burden. But Carrier said it might happen indirectly.
Rotenberg said the school’s update should help pacify employees who might have jumped to litigation in the past.
“We must look to the employment relationship to try and assure the University is doing the best job possible,” Rotenberg said. “But everyone understands this is an area that needs some work.”
Schermer agreed the University’s human resources department needed an upgrade. She cited cases where former employees tried handling their disputes on campus only to be sent from department to department through the University’s maze like a ping-pong ball.
One step up, one step down
University attorneys said the school’s inability to decrease the caseload will never completely deteriorate. But they do have goals.
Deputy general counsel Donohue said he longs for the day where the average caseload is below 200. Department officials also hope to decrease their dependence on outside firms.
“I’d like to get it down to zero,” he said. “But I think there is an irreducible minimum.”
Large institutions with deep pockets always face challenges, Rotenberg said. But he added that the caseload would decrease if frivolous cases never made it to the complaint basket.
“It’s fair to say plaintiffs’ lawyers would provide a more useful function if they would more carefully screen the litigation possibilities that come their way,” he said.
There are no checks and balances against filing civil lawsuits. Any employee with a grievance can file, said Kari Dziedzic, media relations representative for the Hennepin County Attorneys Office.
“Anyone can hire a lawyer and sue the U,” she said. “The lawyers need to have the ethics to say whether this is a frivolous case.”
Rotenberg said he believes the University is victimized by worthless suits. He said he has handled more than 1,000 cases since he arrived.
“At least half of the cases I’ve seen are cases which we have prevailed in with no award at all to the plaintiff or cases where we have made a very nominal settlement,” he said. “I conclude that roughly that number of cases are insubstantial or frivolous.”
But Schermer and Tanick disagreed with Rotenberg’s assessment.
Schermer said the University’s general counsel plays a role in its inability to make headway on cases.
“Their unwillingness to meet and discuss solutions often forces cases into litigation when they really shouldn’t get that far,” she said.
“I don’t know about other lawyers, but I don’t have time to deal with frivolous cases,” Tanick said. “I don’t think there is any greater tendency to sue the University than any other large institution.”
Tomorrow: A comparison of legal issues facing the University and other large institutions.

–Staff Reporter Josh Dickey contributed to this report