New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Litigation, Mediation & Arbitration; Sex Discrimination; Practice of Higher Education Law; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity

Barnett v. Rutgers University (D.N.J. March 16, 2018)

Unpublished Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiff, an African American woman and former employee of the University of Medicine and Dentistry of New Jersey (now merged with Rutgers University), alleged under the New Jersey Law Against Discrimination (NJLAD), Title VII, and the Americans with Disability Act (ADA) that Defendant 1) discriminated against her “and other African American and Latina women” who worked in her office based on her supervisor’s conduct and 2) retaliated against her by failing to admit her into its graduate programs. The court found that Plaintiff’s claims of discrimination under the NJLAD, Title VII, and the ADA were time barred. The court further dismissed the women Plaintiff sought to represent (Jane Does 1-4) because she failed to follow proper procedures to allege claims on their behalf and fundamentally, could not represent other people in court because she was not a licensed attorney. Addressing Plaintiff’s claim that Defendant failed to admit her into its graduate programs, the court found insufficient facts to state a plausible claim for relief under the NJLAD and ADA. Specifically, Plaintiff did not show that she was qualified for admission into Rutgers' MD or PhD programs. Relevant to the ADA, Plaintiff failed to show that admission officers had knowledge of her medical diagnosis or medical treatment. 

Sex Discrimination; Discrimination, Accommodation, & Diversity

Zarda v. Altitude Express, Inc. (2nd Cir. Feb. 26, 2018)

Opinion vacating the district court’s judgment on Plaintiff’s Title VII claim and remanding for further proceedings. Plaintiff, a skydiving instructor, brought a Title VII claim for sex discrimination against his previous employer, Defendant Altitude Express, Inc., after he was fired for allegedly “failing to conform to male sex stereotypes by referring to this sexual orientation.” Reversing its prior holdings in Simonton and Dawson, the Second Circuit held that sexual orientation discrimination claims are cognizable under Title VII and that discrimination based on sexual orientation is discrimination “because of . . . sex” for the purposes of Title VII.

Sex Discrimination; Retaliation; Race and National Origin Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity

Lawrence v. Lawson State Cmty. Coll. (N.D. Ala. March 6, 2018)

Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a sixty-one year old Caucasian male who works as the Director of Financial Services and Risk Assessment at Lawson State Community College (LSCC), alleged that Defendants violated 43 U.S.C. 1981, Title VII, and the Age Discrimination in Employment Act when they purportedly failed to promote him to Dean of Career and Technical Education because of his race; subjected him to a hostile work environment because of his race, age, and/or gender; and retaliated against him after he filed a charge with the Equal Employment Opportunity Commission (EEOC). The court rejected Plaintiff’s failure to promote claim because he did not allege sufficient evidence of discriminatory animus by his supervisor, Defendant Ward, who also played no part in deciding to eliminate the position Plaintiff sought. Plaintiff’s hostile work environment claim failed because the conduct he alleged, which the court characterized as “little more than ordinary squabbles in a typical workplace,” was not objectively severe or pervasive to a reasonable person. Last, Plaintiff’s retaliation claim failed because the conduct he alleged either did not constitute an adverse employment action or lacked causation.

Sexual Misconduct – Employment; Sex Discrimination; Sexual Misconduct & Other Campus Violence; Discrimination, Accommodation, & Diversity

Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler (E.D. Tex. Feb. 27, 2018)

Memorandum Opinion and Order granting the Defendant’s Motion to Dismiss.  Plaintiff, a medical resident at the University of Texas Health and Science Center at Tyler (UTHSC) alleged that she was subjected to a hostile work environment in violation of Titles VII and IX.  UTHSC moved for partial dismissal, arguing that Plaintiff’s Title VII claim preempted Plaintiff’s Title IX claim.  Relying on Fifth Circuit precedent in Lakoski v. James, the court concluded that Title VII was the “exclusive remedy” for individuals alleging employment discrimination on the basis of sex, and that Title VII, therefore, “preempt[ed] any private right of action for employment discrimination under Title IX.”

Contract Administration; Practice of Higher Education Law; Sex Discrimination; Discrimination, Accommodation, & Diversity

Powell v. Saint Joseph’s University (E.D. Pa. February 16, 2018)

Memorandum granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiff, a student at Saint Joseph’s University (SJU), was expelled following a finding that Plaintiff had violated SJU’s policy prohibiting harassment on the basis of sex/gender, among other characteristics (the Harassment Policy). Three female students alleged that plaintiff had stalked them in violation of SJU’s policy regarding sexual assault, sexual exploitation, domestic violence, dating violence, or stalking (the Stalking Policy). Following receipt of these allegations, SJU retained an independent investigator and initiated an investigation under the Stalking Policy. The independent investigator found no violation of the Stalking Policy but instead found that plaintiff violated the Harassment Policy. The Harassment Policy, unlike the Stalking Policy, required that SJU give plaintiff notice of and an opportunity to respond to charges under the policy. Following the investigation, SJU expelled plaintiff and plaintiff sued alleging several breach of contract claims, violation of Title IX, negligence, and violation of a Pennsylvania state statute on unfair trade practices and consumer protection. The court granted Defendants’ Motion to Dismiss the Title IX, negligence, and state statute claims, and all but one breach of contract claim, but found that plaintiff’s breach of contract claim regarding failure to follow the Harassment Policy was plausible and should not be dismissed. The court noted that plaintiff’s complaint sufficiently alleged that SJU failed to provide plaintiff notice and opportunity to respond as required by the terms of the Harassment Policy.  

Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Sherris v. City Colleges of Chicago (N.D. Ill. Feb. 21, 2018)

Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former catering manager at City Colleges of Chicago (CCC), alleged that she was sexually harassed by a co-worker.  She further alleged CCC created a hostile work environment and retaliated against her for reporting sexual harassment in violation of Title VII, after she was terminated for “reports of unprofessional behavior,” which included drinking during a catering event, arguing with co-workers, and telling clients that CCC was not capable of managing its events... Concluding under Ellerth that there was no basis for employer liability, the court found that CCC had in place reasonable mechanisms for reporting and correcting sexual harassment and that Plaintiff declined to avail herself of those mechanisms, despite repeated encouragement from her supervisor to do so.   The court further dismissed Plaintiff’s retaliation claim because she failed to provide evidence of similarly situated employees who engaged in the same behavior but were not discharged, nor could Plaintiff rebut as pretext CCC’s legitimate, nondiscriminatory reasons for terminating her. 

Tenure; Faculty & Staff; Discrimination, Accommodation, & Diversity; Sex Discrimination; Retaliation

Weeks v. Texas A&M Univ. (S.D. Tex. Feb. 21, 2018)

Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a male assistant professor at Texas A&M University—Galveston, alleged that Defendant Texas A&M University System discriminated against him on account of his gender, created a hostile work environment, and retaliated against him in violation of Title VII based on purported mistreatment he experienced in his tenure and promotion review process, in employment decisions, and in A&M’s decision to ultimately terminate him. The court found that Defendant Texas A&M University System was not Plaintiff’s “employer” within the statutory meaning of Title VII because Texas A&M University—Galveston, a statutorily different entity than Defendant, had the right to control Plaintiff’s conduct, which included hiring, firing, and setting his work schedule. After finding that Plaintiff’s amendment to add Texas &&M Galveston as a party related back to his original complaint and therefore was timely, the court denied each of Plaintiff’s Title VII claims. Specifically, Plaintiff’s gender discrimination and retaliation claims failed because he could not rebut as pretext Galveston’s concerns about the accuracy and veracity of his professional accomplishments, while Plaintiff’s hostile work environment claim lacked evidence in support of his conclusory statements. 

Sex Discrimination; Discrimination, Accommodation, & Diversity; Retaliation; Due Process; Constitutional Issues

Kirby v. State of North Carolina (E.D.N.C. Feb. 9, 2018)

Order granting Defendant’s Motion to Dismiss. Plaintiff, whose enrollment in North Carolina State University (NCSU)’s College of Veterinary Medicine was terminated in 1994 and who now proceeds pro se, brought claims against Defendant for deprivation of due process; violations of Title IX, specifically sex discrimination, continuing patterns or practice of discrimination by the state, and retaliation; and breach of contract based on allegations that NCSU unlawfully changed her grades from passing to failing. Plaintiff sought to bypass Title IX’s three-year statute of limitations by asserting that her claims accrued in 2017, upon discovery of tuition overpayments to NCSU by the U.S. Department of Education. Rejecting Plaintiff’s theory, the court found that Plaintiff’s claims based on her 1994 termination were either time-bared or precluded by a prior 2013 action against NCSU, which was dismissed for failure to state a claim. Last, the court dismissed Plaintiff’s breach of contract and deprivation of due process claims because they failed to state a plausible claims for relief.