I have been employed by a local, private, non-profit college since the Fall of 1992, and full-time since July 1, 1993. I was hired as an adjunct professor of law, and then as a full-time associate professor. As the years passed, my teching skills were rewarded with regular wage increases and promotions. In recognition of my organization skills and speaking abilities, I was promoted to the administrative position of Director of Institutional Effectiveness, and also the assignment to lead the College through it's initial accreditation application and visits. I lead the College to attainment of full accreditation in the Southern area, and was asked to continue on to its reaffirmation of accreditation in 2002. I continued as Director of IE, teaching less and less, and wrote the College's reaffirmation Self-Study submitted in the Summer of 2002. After I met with the accreditation committee's chair in September 2002, and was preparing for the visit, I suffered a stroke during a scheduled cardiac catheter procedure. The procedure confirmed that I needed open heart surgery right away, but the stroke needed to stabilize for three months. After I returned to Massachusetts to arrange for my surgery and confirm my stroke diagnosis at Massachusetts General Hospital, I returned to my office and celebrated the College's success at attaining reaffirmation of accreditation for 10 additional years. My written and oral preparation was acknowledged as the main reason. I continued to work up until about a week before my scheduled cardiac surgery on January 29, 2003.

Post surgery, I recuperated at my Mother's residence in MA for four weeks, and returned to Florida on or about March 5, 2003; I returned to work the following Monday at limited hours that progressed each week until I was back full-time by May or June, 2003.

I continued on as Director of IE, running my Office, meeting schedules, chairing meetings, etc., without incident until late January 2006, when I was called into the office of the Exec. V. P. of the College (my immediate supervisor was the President) who informed me that "due to your medical condition" I was not perfoming up to my standards and she had to replace me with a female associate professor, and, in recognition of my loyalty to the College, rather than just put me out on disability, she would demote me to a part-time position as institutional research coordinator to work along side the new director. The new position would only pay me $40,000 annually, not the $58,000 I had earned over my 14 years with the College.

I refused to abide by the reduction in pay, and sought out the President for some amelioration. He consented to increase the pay to $45,000, and to delay its implementation to May 1, 2006. He suggested that perhaps some change could be made to that, depending on the College's enrollment.

I had a difficult time accepting the new female director and taking directions from her, so much so that I was offered an alternative position which included my original research position plus administering almost daily admissions tests to incoming students on the Naples campus.

I have worked at that position since about March 1, 2006, while deciding whether I would pursue an EEOC complaint under the ADA, age, or sex discrimination (having been told by the EEOC that I had 300 days from January 30, 2006 to decide).

On Thursday, August 3, 2006, the President delivered me a letter that concluded that I had utilized my desk top computer terminal to "save" objectionable material after I had been asked to remove "it". I denied the allegations and demanded arbitration under the College's printed and distributed Administrative Policy Manual. The manual provides that my immediate supervisor (the College's V.P. of Student Records) is the first level, and some second level, culminating with the President at the third step. He had, by his actions, denied me that procedure, and then claimed that the procedure was not available to me as I was an "at will" employee (with my part-time status) with no protections at all. I am presently suspended without pay for 30 days and with no apparent remedy.

What should I do, both as to the ADA issue, and the current administrative suspension?

I would seek the advice of a lawyer who specializes in workplace discrimination. There are many issues here and the devil is in the details. Without seeing the exact wording or the agreements, policies, contracts and other documentation you received, it is nearly impossible to advise you what avenues are available to you.

It certainly appears that you have at least a prima facie case for disability discrimination, though whether you must seek arbitration first, or whether you are free to pursue the matter externally depends on the exact policies and agreements in place. Just from what you posted I don't see anything that indicates discrimination on the basis of age or sex, but that can best be evaluated by a lawyer who has reviewed the full file.

I know, and I didn't reveal the details here. Do you have any knowlegde as to a proper referral here in Southwest Florida?

Sorry, but for liability reasons referrals to specific attorneys are prohibited on this board.

I agree with what Elle said, but have a couple of observations to add.

1) If you were a a full-time associate professor, were you tenured? If so, I wonder if the AAUP(?) may be a resource for you to consider.

2) You stated {who informed me that "due to your medical condition" I was not perfoming up to my standards}. From their point of view, I suspect they thought they were being kind to you, and trying to reward you in some way due to past service instead of just throwing you onto the scrap heap. However, from your point of view, I wonder if their poor choice of words just provided you with "the smoking gun" if you choose to pursue an ADA case. Do you have any witnesses that heard them say that this was due to your medical condition?

Dear Masked Poster,

Thank you for your observations. We have no tenure at the College. The institution was deliberately created that way, and there has never been a concerted effort to bring in a union or establish a tenure policy. So the AAUP is a no-go.

There were no witnesses to that conversation. However, the Exec. VP would never go back on her word and would confirm what I said in my description. The "administration" seemingly went out of their way to attribute this "demotion" and "reduction in pay" to medical conditions and confirmed that the reasons, whatever they were, "were no fault of mine". "We know that you have no control over what we observe," her statements went on.

I know I have an ADA claim, but I need a Florida lawyer to pursue it.

I think that AAUP may still be a resource for you. It deals with more than just issues of tenure, and it may be a good place to find a referral to an attorney in your area.

DrFred, Market may be right...it certainly can't hurt to contactthe AAUP and see waht they have to say. My only experience involved seeing fellow faculty who were tenured get the AAUP involved. I was non-tenure track, so I was totally at-will.

Sorry, can't help you with an attorney in Florida. And even if I could, I can understand why this board frowns on on making referrals. But given your background, you probably know far better than me what to look for in an experienced employment law attorney.

Here's my non-expert take on what you posted. I think if you pursue this, it's going to boil down to whether or not you can fulfill/were able to fulfill the essential functions of the job. I suspect the admin viewed it as an act of kindness that motivated them to state (to quote you)

"The "administration" seemingly went out of their way to attribute this "demotion" and "reduction in pay" to medical conditions and confirmed that the reasons, whatever they were, "were no fault of mine". "We know that you have no control over what we observe," her statements went on."

However, if they had no medical opinion to show you could not fulfill the essential functions of the job, then their "act of kindness" could come back and bite them in the keister, because it clearly creates what looks like a prima facie case of disability discrimination. The buden of proof would then shift back to them and the only defense I can see is for them to show you were doing a bad job subsequent to your stroke/heart surgery; you have far more data than us as to whether or not they likely have grounds to prove that.

I will, however, say this: If the stroke had left you so disabled that you could not perform the essential functions of an academic type job, based on my experiences with stroke patients I would expect to see that reflected in the quality of your writing. Instead I find your writing to be erudite and relective of a high-functioning individual. OTOH, sometimes heart surgery, e.g. coronary bypass, leaves a person depressed, and depression could affect someone's job performance...which may or may not apply to your situation and which could conceivably open up another set of ADA issues for your attorney to argue.

If I understand correctly the events presented, you returned to work after your stroke and medical procedure on a full time basis in May or June 2003. The action to remove you from your position didn't occur until almost three years later. Did anything of significance occur during that interval? Did you receive performance reviews, comments about your work, anything to suggest that you were not performing up to expectations? It seems sort of odd for your employer to wait three years to remove you from your position simply because you had a stroke and needed cardiac surgery.

Have you received any evaluation of your performance in either of your new jobs? What evidence is there that you used your computer to store objectionable materials after being asked to remove it? Are part-time employees eligible for the arbitration you seek?

Are you considered to be a qualified disabled individual under the ADA or do you believe that your employer regards you as disabled?

To proceed under the ADA even with an attorney, you are going to have to file an administrative charge with EEOC or your state human rights agency. Because of the issues involved, I suggest that you contact EEOC now for further information and guidance.

I will check with the AAUP, although I'm not a member.

The College has no performance reviews that signify any medically related denegration of my job performance. In fact, I received a raise with no comments in May of 2003, a $ 3,000 increase in pay in May of 2004, and another $3,000 raise in May of 2005, and the only comment was that in 2005 the President noted that I should pay more attention to report deadlines, some of which I did miss.

I found out that the "administration" was planning to make this change for months before they sprang it on me on January 30, 2006. They had earlier spoken with the female who was to replace me to prepare her for the change.

There have been no reviews since the last change, but I have performed all extra work that has been asked of me, including the preparation of the latest College catalog. That is precise and painstaking work that I have been used to in my prior job as Director.

So I think they will have no evidence to support the demotion/reduction in pay.

As far as the new "charge" that has led to the 30 day suspension, I pushed the President to provide me with the evidence that they found on my computer's hard drive. He sent me a copy of a letter from the IT staff describing where they had found it - although I'm still not sure what they are talking about. The photos are 25 in number and depict male/female oral sex, and appear to be of "Penthouse" quality. I never saw any of them before. The material also included three letters saved in WORD; and everyone on campus knows I use Wordperfect for my documents. In fact, I've never seen them before either. There is evidence that my "password" is well known by many on the College staff, including every past or present IT employees.

Despite my claims of innocence, the President says that the evidence proves some larger pattern of conduct because of the supposed oral testimony on three witnesses, identities unknown, who allegedly "saw" me viewing objectionable material on my computer screen. My assertion that they may have seen unsolicited email being deleted was unimpressive.

To me, this smells of some deliberate action intended to get me to quit or go out on disability retirement. I had planned on working until my 70th birthday, maximizing my social security benefits, and gaining raises annually along the way.

In any event, these are all the facts. As you can probably tell, I practiced law in Massachusetts for 20 years before coming to Florida, and found that I liked teaching. I moved into the administrative area at the request of the President to guide the College through its accreditation. All that loyalty over 15 years, and this is what I get !

Just a thought, but *IF* no one else had access to that computer, and you truly did not download those items yourself, that computer needs to be (should have been) checked for spyware. "Drive-by" spyware (which can be contracted simply from visiting a web site) is growing exponentially, and while once considered mainly relegated to visiting XXX web sites, nowadays even mainstream web sites are being hacked and spyware implanted. I saw a report of PCWorld's web site just a few weeks ago, that the popular MySpace web site had been hacked, and for several hours people who visited there were infected with drive-by spyware. And once one nasty gets on a computer, it can open the door for numerous others.

Myself, I use four or five different antispyware programs and have still been known to pick up an occasional nasty. I spend a lot of time looking for info on the internet, and even the most innocent Google search can turn up an infected web site within the first few hits. On my home computer, I use a freeware program from McAfee called "site advisor" which has saved me from clicking onto a malware web site more than once. For example, a couple of weeks ago, I was looking for the newest freeware version of AVG antivirus, and the second link Google gave me (the one I really needed was like number 7) said it contained the download I was looking for but McAfee warned me it was a baddy just as I was about to click onto it.

I use Symantec's Norton Utilities at home, but the College uses McAfee's programs. I have no idea what levels of protection they have for the network, but your experience gives me another layer of defense. No, I really never saw that material nor did I ever save it. How it got onto my hard drive in a Zip file, I just don't know. And I can't search for an answer, since I'm barred from campus until September 7.

Neither Norton Utilities (which I also use at home) nor even McAfee's entire security suite with firewall, will guard against all spyware. As well defended and cautious as I am (never go to XXX web sites, 2 levels of firewall, two antivirus programs, five antispyware programs, and high security setting for internet explorer, antispam software, etc.), I still have picked up files on my computer for which I have no idea how they got there. I found a Word document the other day on my temp (C:/temp) directory which I know I didn't place there. I also knew enough not to open it with Word (opened it with notepad) since there is a Word exploit being used by the bad guys to take over computers (and for which I am patched) and sure enough it's not anything I created (and I'm the only one with access).

The only way I know to stay totally safe is to NEVER GET ON THE INTERNET! Even the supposedly safe browsers with no active X (e.g. Mozilla) have had exploit code used against them.