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

Swauger v. University of North Carolina at Charlotte (N.C. App. May 15, 2018)

Opinion affirming Respondent’s Motion to Dismiss. Petitioner, a mechanic who worked for the University of North Carolina (UNC) at Charlotte, alleged that UNC dismissed him without just cause based on his refusal to sign a Google Terms of Service agreement for email use. At issue is whether Petitioner pursued the correct procedure to appeal an administrative law judge’s finding that UNC had just cause for his dismissal. After looking to the plain language of the relevant statutes and analyzing the case law, the court found that Petitioner did not pursue an “adequate procedure” for judicial review. As a result, the court held that the superior court properly dismissed Petitioner’s petition for lack of subject matter jurisdiction.

Employee Discipline; Faculty & Staff

Kenny v. Rider University, et al. (3rd Cir. May 3, 2018)

Opinion affirming the district court’s order granting Defendants’ Motion for Summary Judgment. Plaintiff, an adjunct professor at Rider University (RU), alleged that RU committed fraud and libel, and breached a contract when it 1) suspended him for using the syllabus of a tenured professor whose course he was covering for a semester and 2) reported his suspension for misconduct to the State in connection to his application for unemployment benefits. In discovery, previously undisclosed emails indicated that the tenured professor gave her syllabus to the department chair to provide to her replacement. The court found that while Defendants’ disciplinary actions against Plaintiff were “perhaps overheated and uncalled for,” their behavior was not unlawful. Specifically, under New Jersey law, RU did not have a duty to disclose the emails before the parties initiated arbitration or in their settlement negotiations. Even if state law imposed a duty, RU was limited to disclosing documents the Provost collected when deciding to uphold Plaintiff’s discipline, per the request of Plaintiff’s union. Plaintiff’s libel claim against the tenured professor failed because her statements were not knowingly false, did not amount to reckless disregard for the truth, and therefore, fell “within a qualified privilege for reporting employees’ conduct to their supervisors.” Last, RU did not breach its settlement agreement with Plaintiff because RU was not required under the terms of the agreement to explain to inquiring parties that Plaintiff never admitted guilt to the misconduct charge.

Retaliation; Employee Discipline

Daniel Morgan Graduate Sch. Of Nat’l Sec. v. Millis (E.D. Va. April 23, 2018)

Memorandum Opinion granting parties’ cross motions for summary judgment. Plaintiff Daniel Morgan Graduate School of National Security (DMGS), a private non-profit educational institution, alleged that Defendant Millis, the former Executive Director of DMGS, defamed DMGS, breach a fiduciary duty owed to DMGS, and breached a contract with DGMS following her resignation, which tendered in a letter that referenced DMGS’s alleged mishandling of alleged sexual abuse by a DMGS cofounder. Specifically, Plaintiff alleged that Defendant Mills provided her resignation letter to the Washington Post and to her subordinates, who were then encouraged by the Defendant to sue DMGS, in violation of DMGS’s Second Revised Bylaws. The court found no evidence that Mills had shared her resignation letter with a third party, and the appearance of Defendant’s letter as an exhibit in a separate lawsuit did not qualify as a “publication” because absolute immunity protected it as a statement in a judicial proceeding. Plaintiff’s breach of fiduciary duty and breach of contract claims failed for lack of factual support. Addressing Defendant’s counter-claims, the court dismissed Defendant’s constructive discharge claim because Defendant voluntarily resigned from her position “in protest of the treatment of others, not due to her own alleged mistreatment.” Moreover, Defendant failed to identify a materially adverse employment action in support of her retaliation claim. Last, Defendant’s IIED claim failed because Plaintiff’s conduct was not sufficiently “extreme or outrageous” and did not result in severe emotional distress.
Employee Discipline; Faculty & Staff; Campus Police, Safety & Crisis Management

Whitehurst v. East Carolina University (N.C. App. Feb. 6, 2018)

Order affirming the Final Decision of the Administrative Law Judge. Appellant, East Carolina University (ECU), dismissed Appellee—an officer in ECU’s Police Department—after he failed to properly investigate and document an assault incident on campus. After terminating Appellee for “unacceptable personal conduct for which no reasonable person should expect to receive a prior warning,” Appellee sought review by the Office of Administrative Hearings before an Administrative Law Judge (ALJ), who did not find just cause for dismissal. Instead, the ALJ demoted Appellee one pay grade below his rank. Appellant contends that the ALJ erred in concluding that ECU did not have just cause to dismiss Appellee and the ALJ lacked authority to order the alternative sanction of demotion. The court found that under state law, ECU did not have just cause to dismiss Appellee because his conduct was mitigated by his misunderstanding of who the assault victim was, the relatively light sanction imposed on a different responding officer for a similar violation, and Appellee’s lack of prior disciplinary actions. The court also  concluded that the ALJ had authority to impose the less severe sanction of demotion. 

Employee Discipline; Tenure; Age Discrimination; Due Process; Faculty & Staff; Discrimination, Accommodation, & Diversity; Constitutional Issues

Heineke v. Santa Clara University, et al. (N.D. Cal. Dec. 5, 2017)

Order granting Defendants’ Motion to Dismiss. Plaintiff, a seventy-nine year old tenured professor at Santa Clara University (SCU), a private institution, brought a section 1983 claim for due process violations and a claim of age discrimination under the Age Discrimination in Employment Act (ADEA) against SCU after he was dismissed following an SCU determination that Plaintiff violated the institution’s Gender-Based Discrimination and Sexual Misconduct Policy. Plaintiff also brought claims against a former student and SCU for wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation. The court found that Plaintiff did not sufficiently plead state action to support his section 1983 claim and further, was unpersuaded by Plaintiff’s argument that SCU’s compliance with Title IX obligations transformed the private institution into a state actor. Additionally, the court found that Plaintiff did not plead sufficient facts to support his age discrimination claim, primarily because his conclusory allegations were unsupported by evidence showing that he was fired because of his age or that SCU sought to replace him with someone younger. The court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims. 

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. 

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.

Employee Discipline; Tenure; Faculty & Staff

Michael Miller v. Los Angeles Community College District, et al. (Cal. Ct. App. August 30, 2017)

Unpublished judgment affirming the trial court’s denial of Plaintiff’s Petition for Writ of Mandate. Plaintiff, a tenured physical education instructor at Los Angeles Community College District (LACCD), alleged he was wrongfully dismissed for dishonesty in connection to an investigation of possible financial aid fraud and seeks backpay, as well as reinstatement of his employment. Central to Plaintiff’s claim were two allegations (1) that LACCD failed to evaluate the tenured college instructor “at least once in every three academic years” as statutorily required and (2) that the President of LACCD failed to make a final recommendation of dismissal to the district governing board, as required by statute. The court found that any failure by LACCD to substantially comply with its statutory requirements was harmless error.  Moreover, finding that substantial evidence supported appellant’s termination, since appellant destroyed documents and erased his hard drive in the course of the fraud investigation, the court concluded that Plaintiff was not entitled to backpay.