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 Retaliation
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Due Process; Retaliation; Constitutional Issues

Robinson v. Wichita State University (D. Ka. Feb. 13, 2018)

Memorandum and Opinion granting-in-part and denying-in-part Defendants’ Motion on the Pleadings.  Plaintiff, former Vice President for Campus Life & University Relations at Wichita State University (WSU), alleged that WSU threatened his employment, demoted him, and terminated his employment in retaliation for initiating Title IX investigations.  Plaintiff also alleged that WSU deprived him of a liberty interest and defamed him when it published statements to third parties about his credentials, financial improprieties, and his termination.   The court allowed Plaintiff’s Title IX retaliation claim to proceed.  Although “[a]n employee cannot engage in protected activity while performing his job duties,” the court reasoned that Plaintiff went above and beyond the scope of his duties by “help[ing] other assert rights under Title IX.”  The court also found that Plaintiff sufficiently alleged that WSU deprived him of a liberty interest without due process, based on purportedly false statements that impugned Plaintiff’s reputation and good name, and allowed this count to proceed both against WSU and the WSU President in his individual capacity.  The court allowed some of Plaintiff’s defamation claims to proceed on similar grounds.

Retaliation; Faculty & Staff

Tenpas v. Riverside Community College District (Cal. App. 4d, Feb. 13, 2018)

Order and opinion affirming summary judgment for the Defendant.  Plaintiff, a tenured faculty librarian and former college administrator at Riverside Community College (RCC), alleged that RCC retaliated against her when it eliminated her administrative position at RCC pursuant to an administrative decision to restructure the deanship.  Specifically, she alleged that RCC’s decision to restructure the deanship was pretext for retaliatory actions taken to punish Plaintiff for taking medical leave, reporting a hostile work environment, and objecting to student hiring decisions.  In affirming judgment for the Defendant, the court found that Plaintiff was unable to show, beyond mere speculation, that RCC’s decision to restructure the deanship, was pretext for retaliatory animus, rather than a legitimate business decision  that the position was no longer essential or beneficial to the operation of RCC.

Retaliation; First Amendment & Free Speech; Constitutional Issues

Boglin v. The Board of Trustees of Alabama University, et al. (N.D. Ala. Feb. 6, 2018)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a senior secretary in the Career Development Services Office at the Alabama Agricultural & Mechanical University (AU), alleged that AU retaliated against her by dismissing her for reporting that employees within the department had been manipulating AU’s leave system by filing fraudulent leave and reimbursement requests. The court found that because the Board of Trustees’ authority did not include reinstating her employment, the Ex parte Young exception did not apply, and Individual Defendants were entitled to sovereign immunity. The court further found that Plaintiff’s speech was made pursuant to her professional duties, rather than as a citizen, and its purpose was not to raise matters of public concern. 

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. 

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. 

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.” 

Retaliation; Faculty & Staff

Feresu v. The Trustees of Indiana University (S.D. Ind. Dec. 20, 2017)

Order granting Defendant’s Motion for Judgment on the Pleadings. Plaintiff, a former professor at Indiana University, alleged that the University retaliated against her in violation of Title VII when it “leaked” or “misused” information about Plaintiff’s prior litigation with the University in response to a potential employer’s inquiries. The court found that Plaintiff failed to show that the University took a materially adverse employment action against Plaintiff, specifically because Plaintiff did not establish that the University’s communications with her potential employer were false. 

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.