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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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Retaliation; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Udeigwe v. Texas Tech University, et al. (5th Cir. May 11, 2018)

Per Curiam Opinion affirming-in-part and dismissing-in-part the district court’s order to dismiss Plaintiff’s Complaint. Plaintiff, a black male professor at Texas Tech University (TTU) who proceeds pro se, alleged that his non-reappointment to a tenure-track faculty position following a negative mid-tenure evaluation constituted discrimination, harassment, and retaliation based on race in violation of Title VII; deprived him of procedural due process under the Fourteenth Amendment; deprived him of an “equal right to work and/or” resulted in “retaliation due to protected speech because of his race”; and resulted in tortious interference with his employment contract under state law. The court found that Plaintiff’s Title VII claims failed because he did not timely appeal the decision of the district court, while his “equal right to work” claim failed because it lacked a constitutional basis. Noting that Texas did not recognize a property right in continued employment or the promise of tenure, the court dismissed Plaintiff’s procedural due process claim for lack of a recognized property or liberty interest. Acknowledging that “a party cannot tortuously interfere with its own contract,” the court dismissed Plaintiff’s tortious interference claim, since he was not able to show that Defendants “acted in a fashion so contrary to the corporation’s best interests that [their] actions could only have been motivated by personal interests.”  Last, the court found no allegations to support a First Amendment retaliation claim. 

5/15/2018
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Discrimination, Accommodation, & Diversity; Retaliation; Race and National Origin Discrimination; First Amendment & Free Speech; Constitutional Issues; Faculty & Staff

Patra and Vaz v. Pennsylvania State System of Higher Education, et al. (M.D. Pa. May 8, 2018)

Order granting Defendants’ motion for summary judgment on all counts. After their teaching contracts at Bloomsburg University were not renewed, Plaintiffs sued, citing eleven allegations, including retaliation and race, national origin, and religious discrimination. The court concluded that Plaintiffs’ brief “utterly fail[ed] to explain” why the Court should not grant summary judgment to the Defendants on all claims. As examples, the court highlighted Plaintiffs’ failure to: (i) explain how their termination was “under circumstances that raise an inference of discriminatory action” under Title VII, (ii) explain what “adverse employment actions” were taken by Defendants; and (iii) provide evidence that they engaged in constitutionally-protected speech to support their First Amendment retaliation claims.

5/10/2018
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Discrimination, Accommodation, & Diversity; Race and National Origin Discrimination

Jumbo v. Ala. State Univ. (M.D. Ala. May 3, 2018)

Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiffs are students of Alabama State University (ASU) who alleged under Title VI that ASU discriminated against them on account of their Nigerian national origin by mishandling their scholarship money from the Federal Republic of Nigeria. Plaintiffs’ prior suit against ASU, which was based on the same alleged conduct but only included state claims, was dismissed for lack of diversity jurisdiction. The court found insufficient evidence to establish a prima facie case of Title VI intentional discrimination, particularly because Plaintiffs relied only on their subjective beliefs as evidence that they were charged to stay in dorms over breaks while other foreign students were not. The court declined to exercise supplemental jurisdiction on the remaining state claims.

5/7/2018
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Discrimination, Accommodation, & Diversity; Race and National Origin Discrimination

Hamido v. Tennessee State University and Johnson (M.D. Tenn. April 26, 2018)

Memorandum granting Defendant’s Motion for Summary Judgment. Plaintiff, an Associate Professor in the Department of Human Performance and Sports Science at Tennessee State University (TSU), alleged that the Dean discriminated against him by assigning him undesirable classes, reassigning classes, giving him a poor performance evaluation, and failing to promote him.  The court found that Plaintiff failed to establish a prima facie case of discrimination under Title VII.  Class reassignments, where job responsibilities are not “significantly diminished,” do not amount to adverse employment actions.  Also, Plaintiff never applied for a promotion, which foreclosed him from establishing a prima facie case on his failure to promote claim.   The court found no other facts sufficient to establish the prima facie elements of discrimination.

5/3/2018
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Retaliation; Race and National Origin Discrimination; Tenure; Faculty & Staff

Rodriguez v. Elon University (M.D.N.C. April 27, 2018)

Memorandum and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a Hispanic professor of Puerto Rican descent and Faculty Director of the Chandler Family Professional Sales Center at Elon University, alleged under Title VII and section 1981 that Elon’s decision to deny him a promotion and tenure was made with discriminatory animus based on national origin and race. The court found that Plaintiff’s evidence did not give rise to an inference of unlawful discrimination that would support the fourth prong of the McDonnell Douglas burden-shifting framework. Further, Plaintiff could not rebut as pretext the several legitimate, non-discriminatory reasons for denying Plaintiff a promotion or tenure—namely, the Dean and reviewing committee noted that Plaintiff favored certain students over others, was unresponsive to students outside of class, failed to meet teaching and advising expectations, did not contribute to the life of the University community beyond his paid position as Faculty Director, and produced scholarship of questionable quality. Plaintiff’s constructive discharge claim also failed, since he could not show that Elon’s decision to deny his tenure and promotion application was deliberately calculated to force his resignation, nor could he show that the conditions of his employment were so intolerable that a reasonable person would be compelled to resign. Last, the court dismissed Plaintiff’s retaliation claim because it was not first raised in his original complaint, nor was it included in his EEOC charge.

5/3/2018
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Age Discrimination; Sex Discrimination; Due Process; Race and National Origin Discrimination

Ross and Operstein v. White (C.D. Cal. April 20, 2018)

Order granting-in-part Defendants’ Motion to Dismiss. Plaintiff Operstein, a female professor at California State University Fullerton (CSUF) who is a “non-Hispanic legal immigrant of foreign national origin” and who is over forty-seven years old, alleged that CSUF’s decision to deny her a promotion and tenure stemmed from a CSUF policy to “make Hispanics the majority among faculty administrators and staff.” She also alleged that she was subjected to a hostile work environment; discriminated against her on account of her race, ethnicity, national origin, age, and gender; and denied due process under the Fourteenth Amendment. Plaintiff Ross, Operstein’s husband, alleged that his wife’s denial of tenure and termination deprived him of a community property interest, and that CSUF’s Policy prevented him from equally competing for a faculty position. As an initial matter, the court found that Plaintiff Ross did not have standing to proceed. The court further found that the Eleventh Amendment barred Plaintiff Operstein’s claims for retrospective relief. However, her claim for prospective relief—namely, to enjoin CSUF’s Policy and to declare it  unconstitutional—could proceed under the Ex parte Young exception. The court also allowed her due process claim to proceed based on her unilateral expectation of continued employment and her subjective belief that she accomplished what was necessary to maintain her employment contract.

4/27/2018
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Genetic Information Nondiscrimination Act (GINA); Retaliation; Race and National Origin Discrimination; Sex Discrimination; Age Discrimination; Disability Discrimination

Gross v. Morgan State Univ. (D. Md. April 19, 2018)

Memorandum granting Defendants’ Motion to Dismiss. Plaintiff, a former employee of Morgan State University (MSU), alleged that MSU and her supervisor discriminated and retaliated against her in violation of the Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Equal Pay Act (EPA), Title VII, and the Genetic Information Nondiscrimination Act (GINA). Plaintiff also brought claims of negligent hiring, retention, and supervision against MSU under state law. The court found that Eleventh Amendment immunity barred Plaintiff’s ADEA and ADA claims, while Plaintiff’s claims under Title VII and GINA lacked subject-matter jurisdiction. Specifically, Plaintiff failed to exhaust her administrative remedies by neglecting to mention race, national origin, gender, disabilities, and genetic information in her administrative complaint. Plaintiff’s retaliation claims under Title VII and GINA also failed because she did not allege that she engaged in a protected activity within the purview of the two statutes. Last, the court found no factual allegations to support Plaintiff’s claim under the EPA and declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims.

4/27/2018
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Litigation, Mediation & Arbitration; Religious Discrimination; Race and National Origin Discrimination; Practice of Higher Education Law; Discrimination, Accommodation, & Diversity

Naziri v. Union County College (D.N.J. April 18, 2018)

Unpublished Order granting Defendants’ Partial Motion to Dismiss. Plaintiff, a Muslim woman of Afghani descent and student of Union County College (UCC), alleged under Title VI and New Jersey state law that UCC discriminated against her based on religion and national origin, after a UCC instructor purportedly directed disparaging remarks at her in class and denied her an opportunity to sit for an exam. She also brought claims of defamation and defamation per se  against the Defendants.  The court found that Plaintiff’s defamation and defamation per se claims were waived because Plaintiff failed to submit a notice of claim to UCC, as required by state law. To the extent that the Complaint endeavored to allege a cause of action with respect to Plaintiff’s husband, the court dismissed those claims for insufficient factual support.

4/23/2018
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