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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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. 

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. 

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. 

Title IX; Retaliation; Sexual Misconduct & Other Campus Violence

John Doe v. Columbia College Chicago, et al. (N.D. Ill. October 25, 2017)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a male student at Columbia College Chicago (CCC), sued CCC under Title IX on the theories of hostile environment harassment, deliberate indifference, erroneous outcome, selective enforcement, and retaliation, after he was found responsible for sexually assaulting Jane Roe, a fellow CCC student. The court found that Plaintiff’s hostile environment and deliberate indifference claims could not proceed because the alleged harassment was not gender-based, but instead was motivated by students’ belief that Plaintiff had sexually assaulted Jane Roe. Further, although the court agreed that Plaintiff sufficiently cast doubt on the accuracy of the disciplinary hearing,  the court found that Plaintiff’s allegations that public and government pressure influenced the outcome of the proceeding, without additional evidence of gender-biased statements from university officials, was not enough from which a factfinder could draw an inference of gender bias, as required to state an action under a theory of erroneous outcome. Finally, the court dismissed Plaintiff’s selective enforcement claim because he did not identify a similarly-situated comparator. Turning to Plaintiff’s retaliation claim, the court concluded that the  Defendant had a legitimate, non-retaliatory reason for Plaintiff’s suspension, and Plaintiff could not show a retaliatory motive for CCC’s response to Plaintiff’s complaints of harassment.  Plaintiff also brought tort and contract claims under State law, which the court dismissed in turn.