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
New Search
Faculty & Staff; Retaliation

Ackerson v. The Rector and Visitors of The University of Virginia (W.D. Va. Nov. 7, 2017)

Memorandum Opinion denying Defendant’s Partial Motion to Dismiss. Plaintiff, a Project Manager for the University of Virginia (UVA), originally had a one-year term of employment with UVA that was later renewed several times over the course of five years. In June of 2017, shortly after she filed an Equal Employment Opportunity Commission (EEOC) charge of sex and disability discrimination, UVA reminded Plaintiff by letter that her one-year contract was set to expire. Plaintiff was not reappointed as she had been in prior years. Plaintiff alleged that UVA’s decision not to renew her contract was motivated by retaliatory animus in response to her filing the EEOC charge.  Plaintiff brought numerous claims against UVA, but at issue was whether the court had subject matter jurisdiction to hear Plaintiff’s retaliation claim because it was not originally alleged in her EEOC charge and therefore, Defendant argued, Plaintiff had not exhausted her administrative remedies under Title VII. Because the 4th Circuit recognizes an exception to the exhaustion requirement, which allows Plaintiffs to raise for the first time in federal court retaliation claims stemming from a filing of an EEOC charge, the court looked to whether Defendant’s June 2017 letter was an adverse employment action taken in retaliation for Plaintiff’s protected activity or a “mere reminder” of a prior determination. Because UVA previously set term limits on Plaintiff’s employment contract but consistently renewed the contract over a period of years, the court concluded that Plaintiff sufficiently alleged that the nonrenewal of her contract was borne out of filing the EEOC charge. 

Retaliation; First Amendment & Free Speech; Faculty & Staff; Due Process; Constitutional Issues

Marmarchi v. Board of Trustees of the University of Illinois, et al. (7th Cir. Nov. 7, 2017)

Order affirming Defendants’ Motion to Dismiss. Plaintiff, a doctoral student at the University of Illinois (UI), brought claims against UI, his advisor, and various other UI employees under the First Amendment, due process clause, a number of employment discrimination laws, and the Family and Medical Leave Act (FMLA) when he was removed from the doctoral program, purportedly for telling an Associate Dean that he intended to file a “whistleblower complaint” about “fraud by [the] faculties.” The court found that Plaintiff’s alleged facts for his First Amendment retaliation claim were insufficient because he did not specify what he said to the Associate Dean and without more, the court could not determine if Plaintiff had engaged in protected speech. The court also dismissed Plaintiff’s due process claim because Plaintiff did not provide the contract terms that UI violated and further, the process Plaintiff sought under UI’s handbook was discretionary. The court dismissed all of Plaintiff’s other claims because Plaintiff failed to develop them on appeal. 

Collective Bargaining; Faculty & Staff

Amicus Brief in University of Southern California v. Nat’l Labor Relations Bd. (Oct. 31, 2017)

Amicus brief by the American Council on Education (ACE) and seven other education associations in support of Petitioner in the case University of Southern California v. Nat’l Labor Relations Bd. At issue is whether the framework used by the National Labor Relations Board (NLRB) in Pacific Lutheran to decide the managerial status of university faculty, which in turn determines their eligibility to form a collective bargaining unit under the National Labor Relations Act, is contrary to the U.S. Supreme Court decision NLRB v. Yeshiva University. Amici argue that the NLRB’s framework adds onerous elements to its existing framework and fundamentally, misunderstands the importance of shared governance and the role of faculty members in American higher education institutional decision-making. 

Retaliation; First Amendment & Free Speech; Constitutional Issues; Faculty & Staff

Tracy v. Florida Atlantic University Board of Trustees, et al. (S.D. Fla. Oct. 31, 2017)

Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a tenured professor at Florida Atlantic University (FAU), alleged that FAU terminated him in retaliation for writing blog posts that suggested the Sandy Hook shooting never occurred. Defendants contend that Plaintiff was terminated for failure to adhere to FAU’s Conflicts of Interest Policy—which was included in the parties’ Collective Bargaining Agreement—by repeatedly refusing to disclose “outside activity” that could potentially create a conflict of interest for the University and its faculty members. The court found that questions of whether Plaintiff’s speech was constitutionally-protected and whether Defendants’ administration of the Policy was pretextual, presented material facts that could proceed to a jury. However, the court dismissed Plaintiff’s facial and as-applied constitutional challenge to the Conflicts of Interest Policy, because “contractual provision[s] [cannot] be challenged as unconstitutionally vague in the same manner as positive law.”  The court also awarded judgment to the Defendant on Plaintiff’s civil rights, conspiracy, and breach of contract claims; dismissed the action against FAU’s President because he did not directly participate in Plaintiff’s termination; and dismissed the action against the remaining Individual Defendants under qualified immunity. 

Tenure; Retaliation; Faculty & Staff

Hatcher v. Board of Trustees of Southern Illinois University (S.D. Ill. Oct. 30, 2017)

Memorandum and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, an associate professor at Southern Illinois University (SIU), alleged under Title VII that SIU retaliated against her by denying her tenure application, after she filed an Employment Opportunity Commission (EEOC) charge.  Because only eight-weeks separated Plaintiff’s EEOC charge and Defendant’s tenure decision, and because there existed evidence of inconsistency in the Chancellor’s decision to override the tenure recommendation of the University’s Judicial Review Board (compared to past practice) and possible policy violations in reviewing Plaintiff’s tenure application, the court found that material issues of fact regarding pretext should proceed to a jury. 

Employee Discipline; First Amendment & Free Speech; Due Process; Faculty & Staff; Constitutional Issues

Board of Trustees of Purdue University, et al. v. Eisenstein (Ind. App. Oct. 30, 2017)

Decision affirming the denial of Appellee’s Motion for Summary Judgment and reversing the denial of Appellant’s Motion for Summary Judgment. Appellee, a Purdue University professor, challenged the University’s Policy and Procedures on free speech and due process under sections 1983 and 1985 of the Civil Rights Act after he received a reprimand for retaliating against an individual who filed a complaint against Appellee for repeated anti-Muslim statements in class, on his Facebook page, and on his personal blog. The court found that the Eleventh Amendment protected Purdue University and Appellants in their official capacities from claims brought under sections 1983 and 1985 because Plaintiff did not seek prospective relief.  The court also awarded judgment to Appellants in their individual capacities, concluding that an absolute privilege under Indiana law, that protected statements made in the course of quasi-judicial proceedings, shielded the Appellants from liability. Turning to Appellee’s state law claims, the court found that Appellee did not allege sufficient facts to support his tort claims, and Appellee’s contract claim could not proceed because the Faculty and Staff Handbook on which he based his argument was not part of his employment contract. 

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.”

Contract Administration; Practice of Higher Education Law; Employee Discipline; Faculty & Staff

Fendley v. Wright State University (Ohio Ct. Cl. September 19, 2017)

Decision of the Magistrate Judge recommending judgement in favor of Defendant. Plaintiff, former employee of Wright State University, filed suit alleging breach of contract when he was terminated purportedly without “just cause” or “documented just cause,” as required by the Defendant’s administrative policies and procedures. At the time of his termination, Plaintiff was under investigation for visa fraud. While no indictment ultimately followed, the court found that Defendant’s belief that an indictment was imminent was reasonably informed and constituted “just cause” for Plaintiff’s termination in compliance with the University’s policies and procedures.