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Bonnell v Macomb Community College 12.121

Section 29(9)

DISCIPLINARY SUSPENSION, Insubordination, Sexual harassment, First Amendment

CITE AS: Bonnell v Macomb Community College, Macomb Circuit Court, No. 04-1132-AE (August 23, 2004)

Appeal pending: No

Claimant: John Bonnell
Employer: Macomb Community College
Docket No. B2001-19625-RM1-171007W

CIRCUIT COURT HOLDING: Claimant’s refusal to comply with employer’s legitimate requests to refrain from disseminating materials regarding a student’s sexual harassment complaint against claimant is not protected free speech, and is disqualifying misconduct.

FACTS: Claimant worked for employer as an English instructor. In November 1998, employer received a complaint from a student alleging that claimant’s conduct and use of profanity in his class was sexual harassment. Claimant posted the complaint letter and his response on a bulletin board and gave the documents to students, in violation of employer’s policy and bargaining agreement. Employer suspended claimant on January 5, 1999 for a three-day period. On January 8, 1999, employer warned claimant not to post, distribute or discuss the complaint or his response. Claimant then distributed the documents to a local newspaper, television station, all of the instructors at the college, and at least one more student. Claimant filed suit in federal court against the employer alleging employer’s actions restrained his “freedom of speech.” The U. S. Sixth Circuit Court of Appeals held the employer had not infringed on claimant’s First Amendment rights. Bonnell v Lorenzo, 241 F3d 800 (2000); cert den 534 US 951 (2001). Employer suspended the claimant without pay from August 15, 2001 to December 4, 2001; claimant sought benefits for this period.

DECISION: Claimant is disqualified under Section 29(9) for the period of suspension.

RATIONALE: Claimant was aware of the January 8, 1999 directive; he referred to the directive in his testimony at the Referee hearing as the “gag order.” Claimant blatantly and purposefully disobeyed employer’s directives. The directives furthered the “legitimate and necessary objectives of maintaining the confidentiality of student sexual harassment complaints, disciplining teachers who retaliate, and creating an atmosphere free of faculty disruption,” Bonnell, supra, 823; and in serving employer’s interests in conforming with the Family Educational Rights and Privacy Act.


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