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Ex-professor awarded $67,000 in settlement

Katie Perry | Thursday, November 10, 2005

The former Notre Dame art history professor who filed a federal lawsuit against the University in July 2004 after a denied promotion received more than $67,000 in damages and attorney fees in the case’s recent resolution, University officials said.

Robert Haywood, a former assistant professor in the Department of Art, Art History and Design, sued the University for Family Medical Leave of Absence (FMLA) discrimination and retaliation, age discrimination and retaliation and for violation of contract.

Haywood said the University “misused” the FMLA law, which mandates employers to grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period if a family member is in need of medical attention.

University spokesperson Matt Storin said the case was settled under Rule 68 of the Federal Rules of Civil Procedure, which is a “cost-shifting provision.” Rule 68 procedures allow an offer of judgment to be taken against the defending party in lieu of a trial and require the defendant to pay minimal damages plus the plaintiff’s attorney cost and fees.

“The plaintiff had ten days in which to accept this offer, which he ultimately did,” Storin said.

Haywood said he took the FMLA in 2001 when he discovered his mother in South Carolina had acute leukemia and required his assistance.

“The chair, [Father Austin] Collins at the time, and [then-] associate provost Carol Mooney had approved my FMLA prior to my taking this leave toward the end of the term,” he said. “During my review and hearing, the FMLA was – in effect – used negatively.”

According to federal court documents, Notre Dame will pay Haywood, 47, $52,200 with interest and an additional $15,250 in fees for his legal representative.

“In essence, Notre Dame offered to allow judgment to be entered against it for the amount specified as a means of settling the case,” Storin said. “Mr. Haywood accepted this offer, but Notre Dame denies any wrongdoing and is pleased with the settlement.”

Storin said there was no court decision in sense of a judgment by a judge and/or jury, but Haywood maintained a court made the final decision.

“The decision by the federal court was a judgment against Notre Dame,” said Haywood, whose issues with the University began in 2004 when his promotion from assistant to associate professor with tenure was rejected.

“Assistant professors that are being reviewed for promotion to associate professor are supposed to be evaluated based on three criteria: service, teaching and scholarship,” Haywood said. “I was not evaluated based solely on those, rather the department chair Father Austin Collins and Arts and Letters Dean Mark Roche invented a special standard for me.”

Haywood said Collins and Roche evaluated him based on what they perceived as his “future potential to be department chair” – a criteria he deemed “wholly inappropriate and out of line with junior faculty evaluation criteria at top research universities in the United States.”

Believing an injustice had been done, Haywood appealed his denial to the Provost’s Office where a committee – comprised of senior faculty members – reviewed the case and found it necessary to re-evaluate the application.

“The two elected faculty appeals committees take the job very seriously and, from what I witnessed, devote enormous amounts of time to investigating a case,” Haywood said. “After their work is done, they issue a report … [but] I was only given the conclusion of the report.”

Haywood said one of the conclusions was “[Collins] and certain members of [the department’s Committee on Appointments and Promotions] exhibited attitudes and engaged in behavior that suggested personal bias” and that bias might have infected his initial review.

Haywood said the review is supposed to be redone if appeal committees find extraordinary instances of personal bias or procedural errors, but his review was “not truly redone because the department, the Dean and the Provost’s Advisory Committee review the same application package.”

Despite the appeal, the University again denied Haywood’s promotion in May 2004.

“The rehearing, I believe and regret to say, is only a formality,” Haywood said. “[The purpose of the appeal and rehearing] is to protect the University from a lawsuit – this failed in my case.”

According to the lawsuit, Haywood said part of the reason he was denied tenure was because of the FMLA. It also said the former professor’s age was “the subject of a prior discussion relating to his tenure application.

Storin said the University maintains that it in no way discriminated against Haywood.

“The University is not interested in arguing this case any further,” he said. “Obviously, if the case had gone to trial, we would have been ready to convey our side of this dispute. Mr. Haywood chose not to go that route when we offered to settle under Rule 68 … We settled, and we consider the matter closed.”

Haywood is currently teaching at the University of Michigan.