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.

Selected Topics: Faculty & Staff
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Retaliation; First Amendment & Free Speech; Faculty & Staff; Constitutional Issues

Lamar University v. Jenkins (Tex. App. Jan. 11, 2018)

Memorandum Opinion granting Appellant’s Plea and dismissing Appellee’s Claims with prejudice. Appellee, a non-tenured professor at Lamar University (LU), alleged that LU retaliated against him by denying his application for promotion and tenure after he opposed LU’s use of the Graduate Records Exam (GRE) as a criteria for admission. Appellee argued that the GRE was an “inherently racist test,” and its use would exclude racial minorities and women from becoming paid graduate assistants at LU and from working as professional educators in Texas public schools, which amounted to an unlawful employment practice by LU. The court found that Appellants were entitled to sovereign immunity under the TCHRA because Appellee failed to plead a prima facie case of retaliation, specifically because Appellee could not show that LU’s use of the GRE in its admissions process amounted to an unlawful employment practice. As to Appellee’s remaining due process and First Amendment claims, the court found that Appellee had no protected property interest in continued employment or tenure, and that the speech at issue was within the scope of his employment duties and was not made as a citizen on a matter of public concern. 

FLSA & Categorization of Employees; Faculty & Staff

U.S. Department of Labor Fact Sheet #71 on “Internship Programs Under the Fair Labor Standards Act” (January, 2018)

On January 5, the Department of Labor announced via press release that it would adopt the 7-factor “primary beneficiary test” in ascertaining whether a student intern must be classified and compensated as an “employee” under the Fair Labor Standards Act.  The Department’s Fact Sheet #71 on “Internship Programs Under the Fair Labor Standards Act” outlines relevant factors under the primary beneficiaries test, including the parties’ expectations or promises of compensation, whether the internship provides training similar to that which would be given in an educational environment, and the duration of the internship, among other things.

Family Medical Leave Act (FMLA); Faculty & Staff

Cutliffe v. Wright State University (S.D. Oh. Jan. 9, 2018)

Report and Recommendation to deny Plaintiff’s Motion to Amend.  Plaintiff sought to amend his complaint against Wright State University to include a claim for monetary damages under the Family & Medical Leave Act’s (FMLA) self-care provision.  In determining that amendment would be futile, the court found that the Defendant, as a public institution, would be immune from any claim for monetary damages under FMLA.  Moreover, because Plaintiff was no longer employed at Wright State University, he could not reasonably allege an ongoing FMLA violation, such that he would be able to support a plausible claim for injunctive relief.

Retaliation; Faculty & Staff; Campus Police & Relationships with Local Law Enforcement; Campus Police, Safety & Crisis Management

Hackbarth v. University of Texas at Dallas (Tex. App. Jan. 4, 2018)

Memorandum Opinion affirming the trial court’s award of summary judgment to the University of Texas at Dallas (UTD).  Appellant, a former UTD police officer, alleged that UTD retaliated against him under the Texas Whistleblower Act by terminating his employment after the University of Texas System’s Office of Director of Police (ODOP) concluded that Appellant inadequately responded to a domestic violence incident,  improperly handled public records, and failed to accept responsibility for his actions. The court found that Appellant failed to establish a causal link between his termination and the filing of his whistleblower reports, especially since UTD decisionmakers harbored no negative attitudes toward Appellant and adhered to established policies regarding the termination, and since no evidence suggested that similarly-situated employees were treated differently than Appellant. 

Collective Bargaining; Contract Administration; Practice of Higher Education Law; Faculty & Staff

Asberry v. Los Angeles Community College District, et al. (Cal. Ct. App. 2d Jan. 3, 2018)

Order reversing the decision of the Los Angeles County Superior Court.  Plaintiff, an adjunct faculty member at Los Angeles Southwest Collage (LASC), alleged that LASC breached the collective bargaining agreement with Plaintiff’s union when LASC neglected to assign her to teach a second class over a 10-year period.  Plaintiff also brought a claim of promissory estoppel, alleging that the college’s Vice President for Academic Affairs promised to compensate her in the amount of $50,000 for the alleged oversight.  The appeals court found that the trial court had weighed too heavily the characterization of the action as one of tortious misrepresentation.  Rather, the court found that Plaintiff’s claims sounded in contract, not tort, and thus that the Defendants were not immune from suit.  

Tenure; Due Process; Faculty & Staff; Constitutional Issues

Hernandez v. The University of Texas System (5th Cir. Jan. 3, 2018)

Per curiam Opinion affirming the district court’s award of judgment to the Defendants.  Plaintiff, an assistant professor with tenure at the University of Texas Pan American (UTPA), was terminated from her position when UTPA merged with another Texas institution to form the University of Texas Rio Grande Valley (UTRGV).  Plaintiff alleged that her dismissal from UTPA and UTRGV’s subsequent failure to hire her deprived her of a constitutionally protected property interest without due process.  Adopting the Court’s reasoning in Edionwe v. Bailey, another wrongful termination suit arising as a result of the institutional merger, the Court concluded that Plaintiff neither had a constitutionally protected interest in employment nor tenure, at UTRGV or in the UT System at large, and that she received all process that was due with respect to the termination of her employment at UTPA.

Retaliation; Faculty & Staff

Meminger v. Ohio State University (Ohio App. Dec. 28, 2017)

Judgment affirming Appellee’s Motion to Dismiss. Appellant, a former emergency room secretary for The Ohio State University Hospital East (OSU), appealed the Ohio Court of Claims’ dismissal of her intentional infliction of emotional distress (IIED) claim, arguing that OSU’s purported retaliatory acts following Appellant’s complaint about a doctor throwing paperwork at her, qualified as extreme and outrageous conduct. Conducting de novo review of Plaintiff’s allegations and looking to Ohio case law to determine the level at which workplace wrongdoing amounts to extreme and outrageous conduct, the court found that Plaintiff’s cited conduct was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” 

Employee Benefits & ERISA; Faculty & Staff

In re Walker v. Long Island University (N.Y. App. Div. Dec. 20, 2017)

Decision and Order denying Petitioner’s Motion for Summary Judgment and granting Respondent’s Cross-Motion for Summary Judgment. Walker, a deceased former employee of Long Island University (LIU) and represented by her estate’s administrator, alleged that LIU’s death benefits should be turned over to Walker’s estate and distributed through intestacy, rather than distributed to Walker’s sister who was designated a beneficiary. The court found that LIU met its burden in proving that the death benefit was ancillary to the group term life insurance policy, that Walker while alive designated her sister as beneficiary of the death benefit, and that LIU acted according to its policy of paying the death benefit to a deceased’s designated beneficiary, while Respondent failed to show that LIU was required to pay the death benefit to the estate.