Last month we wrote about a very interesting employment retaliation lawsuit filed in Cleveland by a Case Western Reserve University law professor against the school and its Dean. (We are not involved in the lawsuit). The lawsuit accuses Dean Larry Mitchell of sexually harassing multiple female members of the Case Western Law School community, and then illegally retaliating against the plaintiff, Professor Raymond Ku, for reporting the alleged sexual harassment. Since it was filed just late last month, two extraordinarily unusual things have happened in the lawsuit.
A week after the Complaint was filed, Professor Ku filed an Amended Complaint adding startling new allegations. According to the Amended Complaint, a whistleblower who formerly worked for Dean Mitchell came forward and admitted that in fact he helped Mitchell retaliate against Ku. While there’s no way to assess the credibility of this whistleblower from the outside at this point, it is very unusual for a witness to come out of the woodwork and explicitly admit helping the employer discriminate or retaliate against an employee. If this whistleblower has some credibility, his testimony will likely be absolutely devastating for Case Western and Dean Mitchell.
Just days after the whistleblower came forward, the lawsuit had its second extraordinary development. This week, Dean Mitchell announced he is taking an indefinite leave of absence while the lawsuit plays out. Although the statements from Case Western and Dean Mitchell suggest the leave of absence is his idea, common sense tells us that might not be the case. Because of a fear it will be seen as an admission of liability, employers virtually never suspend or fire the alleged “bad actor” in an employment case, at least not until the case is over. In the rare case when it does happen, it is usually a signal that even the employer believes the bad actor has done something wrong and intends to distance itself from that conduct. Once again, it’s too soon to tell if that is what’s happening in the Ku lawsuit, but the news of Mitchell’s leave is very, very surprising.
We can’t stress enough that it’s nearly impossible to judge what is actually occurring in a case, or to fully evaluate its merits, from the outside. And it is risky to jump to conclusions based on news reports or filings from only one side. That being said, the retaliation lawsuit against Case Western has sent ripples through the Cleveland employment law community, and certainly through Case Western’s campus. We’ll be watching, and will report on developments as they unfold.