Over time, conflicts developed between Dr. Khan and the Dean of the University. Dr. Khan subsequently resigned as Director of IT. However, faculty continued to send him requests regarding the network, to which he responded that he could not provide the requested information. During this time, the network administrator was not available due to illness, and no one oversaw the Network, which ultimately crashed on March 16, 2012. Dr. Khan was subsequently placed on paid administrative leave for “intentionally sabotage[ing] the CMNST Network and . . . substantially interfer[ing] with the ability of the entire faculty of that College to perform their duties.”

 An investigation was completed regarding the security of the system and the reason for the crash, and a report by the Assistant Provost and an Internal Auditor catalogued a series of problems and condemned Dr. Khan’s conduct after his resignation. Dr. Khan was subsequently suspended without pay while the University continued its investigation, and was later discharged for failure to perform his professional responsibilities and his lack of responsiveness with regard to providing requested information regarding the network. Dr. Khan then brought suit, arguing, among other claims, that his discharge was improper under the doctrine of industrial double jeopardy.

Industrial double jeopardy is a rarely used doctrine stemming from the inherent due process rights of private sector unionized employees, providing that an employee should not be penalized more than once for an infraction. This doctrine is narrowly construed, applying only to unionized private sector employees and only where a final decision on the merits of a penalty against the employee is made and the penalty is subsequently increased. Thus, the doctrine does not apply to bar subsequent discipline of an employee suspended pending an investigation of alleged misconduct.

Dr. Khan argued that Provost Thompson’s decision to discharge him after his suspension without pay violated the doctrine of industrial double jeopardy because Dr. Khan was reinstated after his suspension period ended and before being discharged due to the same infraction as that which brought about the suspension. The Superior Court held that the suspension without pay did not constitute a final sanction, as Provost Thompson initiated the suspension in order to investigate and consider the infraction and the appropriate sanction. Though Provost Thompson did not conduct any further factual investigation, the Court found that a suspension while an employer “explores the legal parameters of a decision is . . . equivalent to a period for factual investigation.” Thus, Dr. Khan’s suspension did not constitute a “final” penalty and therefore his discharge did not violate industrial due process.

For information on this matter or other employment law questions, please contact any attorney in our Employment Law Department.

Khan v. Delaware State Univ., 2016 Del. Super. LEXIS 283 (Del. Super. Ct. June 24, 2016)