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; Discrimination, Accommodation, & Diversity; Equal Protection; Race and National Origin Discrimination; Constitutional Issues

Warr-Hightower v. Illinois Central College, et al. (C.D. Ill. Nov. 14, 2017)

Order and Opinion granting in part and denying in part Defendants‘ Motion to Dismiss. Plaintiff, an African American woman employed by Illinois Central College (ICC), alleged individual claims of race discrimination and retaliation in violation of Title VII, the Illinois Civil Rights Act (ICRA), section 2000e, and section 1983 of the Civil Rights Act following her denial of two promotions in which she was qualified. Plaintiff also brought a class action claim on behalf of African American employees affected by ICC’s policies and practices of “creating a predominantly and disproportionately non-African American upper echelon workforce” and ICC’s use of a “sham investigation process” that purportedly resulted in retaliation when individuals sought outside process. The court dismissed Plaintiff’s class action claim because she failed to include the claim in her Equal Employment Opportunity Commission (EEOC) charge and therefore, had not exhausted her administrative remedies. The court further found that even if Plaintiff had exhausted administrative requirements, Plaintiff could not support a class action claim because her pleadings did not allege a class so numerous that joinder would be impractical, nor did she show a typicality of facts, such that allegations and remedies would rest on common facts rather than individualized fact findings and liability determinations. However, the court found that Plaintiff sufficiently met the pleading requirements for her individual claims of race discrimination and retaliation. The court further found that Plaintiff’s section 1983 equal protection claim could proceed against individual defendants who directly participated in the alleged constitutional violation. 

Sex Discrimination; Retaliation; Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Tudor v. Southeastern Oklahoma State University and The Regional University System of Oklahoma (W.D. Okla. October 26, 2017)

Memorandum Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a transgender professor at Southeastern Oklahoma State University (SOSU), alleged that SOSU discriminated and retaliated against her, and created a hostile work environment, by denying her tenure and dismissing her after SOSU learned that Plaintiff would be transitioning from male to female. The court found that Plaintiff had sufficiently shown severe or pervasive conduct for a hostile work environment claim and that Defendants could not assert an affirmative defense under Faragher/Ellerth because their policies were not specific to transgender discrimination. Addressing Plaintiff’s discrimination claim, the court found that Plaintiff had alleged a prima facie case of discrimination and Plaintiff’s evidence of procedural irregularities and inconsistencies in the tenure process were enough to establish pretext. The court also allowed Plaintiff’s retaliation claim to proceed because Plaintiff was a member of a protected class and had plead sufficient facts establishing her protected activities, namely filing an internal grievance and sending a letter to the U.S. Department of Education. 

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

Howell v. Millersville University of Pennsylvania, et al. (E.D. Pa. October 20, 2017)

Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a tenured choral professor at Millersville University (MU), alleged that MU discriminated against him based on his age, created a hostile work environment, and retaliated against him for exercising free speech when he was denied a promotion, demoted, and subjected to two internal investigations. Although there were two stray, but later corrected comments about an individual Defendant’s desire to hire a “young and charismatic” Choral Director, the court dismissed Plaintiff’s age discrimination claim because Plaintiff failed to produce any evidence from which a reasonable factfinder could conclude that unlawful pretext motivated the employment decision, and not Plaintiff’s inadequate qualifications,  insufficient job performance in conducting the choir, inadequate supervision of students (which directly resulted in loss of host schools for student teachers), and other performance concerns.  Addressing Plaintiff’s hostile work environment claim, the court found that Plaintiff failed to show that he suffered intentional discrimination and that such discrimination was severe and pervasive. With respect to Plaintiff’s First Amendment retaliation claim, the court found that Plaintiff’s speech—consisting of a union grievance, a Tumblr post criticizing his department, and a Facebook post defending his teaching methods—were not protected by the First Amendment and even if they were, Defendants could prove that they would have taken the same actions in the absence of Plaintiff’s speech. Notably, as to Plaintiff’s argument that the speech was protected by academic freedom, the Court emphasized that “[t]he institution, not the teacher, has control over the ‘four essential freedoms’ that comprise academic freedom.”

Litigation, Mediation & Arbitration; Retaliation; Practice of Higher Education Law; Discrimination, Accommodation, & Diversity

Featherstone v. Cornell University (N.D. N.Y. October 19, 2017)

Decision and Order dismissing Plaintiff’s Complaint. Plaintiff, a former employee of Cornell University, brought claims against Defendant under Title VII for retaliation, hostile work environment, and discrimination, and under the Equal Pay Act for wage discrimination and retaliation. Plaintiff brought similar claims under analogous New York statutes in a previously litigated action in State court. The court found that the Doctrine of Collateral Estoppel barred Plaintiff’s claims in federal court because the necessary elements of Plaintiff’s claims were identical to the issues decided in the prior State court action and in that case, Plaintiff had a full and fair opportunity to litigate the issues. 

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

Roy v. University of Mississippi Medical Center, et al. (5th Cir. October 17, 2017)

Per Curiam Judgment affirming the district court’s entry of summary judgment in favor of the Defendants. Plaintiff is a former black female employee of the University of Mississippi Medical Center (UMMC) and alleged that Defendants denied her a promotion and declined to rehire her, on the basis of her race and gender. Plaintiff further alleged that she was terminated as retaliation for filing a charge with the Equal Employment Opportunity Commission (EEOC). The court found that Plaintiff failed to establish facts showing she was qualified for the promotion she sought since she only had three and a half years’ experience and the position required five. As to Plaintiff’s failure to hire claim, the court found that Plaintiff failed to establish pretext to rebut UMMC’s legitimate, nondiscriminatory reasons for hiring another applicant, specifically because UMMC used a race-blind process to review applicants and there were no facts implicating gender discrimination. Last, the court found that Plaintiff’s retaliation claim failed for lack of causation, since the reduction in force plan, under which Plaintiff was terminated, was finalized four days prior to her filing the EEOC claim. 

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

Onyiah v. St. Cloud State University and Board of Trustees, et al. (D. Minn. October 10, 2017)

Report and Recommendation granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a Nigerian national and employee of St. Cloud State University (SCSU), alleged that SCSU created a racially hostile work environment and unlawfully retaliated against him after he filed an internal complaint at SCSU, filed an Equal Employment Opportunity Commission charge, and pursued litigation against SCSU prior to the present case. Accepting as true all of Plaintiff’s factual allegations, the court found that Plaintiff sufficiently supported his claims of retaliation, especially where a brief time lapse between the protected activity and the adverse employment action were enough to suggest the Defendants could be motivated by a retaliatory intent. The court allowed Plaintiff’s claim of racial discrimination to proceed in only one instance, where the Defendants arranged for white professors to teach on-campus courses following the cancellation of summer online courses that affected all employees, while Plaintiff was not given the same opportunity. Last, the court found that the individual Defendants were not protected by qualified immunity. 

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

Profita v. The Regents of The University of Colorado (10th Cir. October 11, 2017)

Order and Judgment affirming the trial court’s order of dismissal. Plaintiff is a former student of the University of Colorado (UC)’s M.D. program and suffered from untreated Major Depressive Disorder, an Unspecified Anxiety Disorder, and a number of sleep-related issues. Plaintiff was dismissed from the M.D. program after he failed to complete or remediate his clinical rotations and sought readmission with full credit for prior following treatment for his conditions. Defendants denied him readmission and told him to reapply as a new student, prompting Plaintiff to seek readmission with full credit as a reasonable accommodation under Title II of the American with Disabilities Act (ADA). The court found that under the ADA, the Defendant was not required to apply accommodations retroactively and denied each of Plaintiff’s arguments in turn. 

Retaliation; Discrimination, Accommodation, & Diversity

Russell v. Westchester Community College (S.D.N.Y. September 27, 2017)

Opinion and Order denying Defendant’s Motion to Dismiss. Plaintiff, an adjunct professor at Westchester Community College (WCC) who suffered from heart conditions, brought claims of discrimination and retaliation under the Americans with Disabilities Act and New York state law against Defendants following her termination. The court found that WCC was not precluded from liability under sovereign immunity or qualified immunity because respectively, no case law precluded suit against WCC and Plaintiff had sufficiently alleged bad faith or the lack of a reasonable basis in Defendant’s decision to terminate her.