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 Tenure
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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.

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. 

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. 

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.”

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

Banik v. Tamez, et al. (S.D. Tex. September 21, 2017)

Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a tenured chemistry professor at the University of Texas Pan-American (UTPA), alleged that Defendants retaliated against him following three statements: first, statements made in the a conversation with a student regarding her personal situation; second, Plaintiff’s reference to a local gentlemen’s club ad; and third, Plaintiff’s criminal allegations  against another professor. The court dismissed all claims either because Plaintiff failed to show he spoke as a citizen on a matter of public concern or because Plaintiff could not show that his speech was a substantial or motivating factor behind Defendant’s decision to terminate his employment. 

Faculty & Staff; Tenure; Discrimination, Accommodation, & Diversity; Race and National Origin Discrimination

Yang Zhao v. Keuka College, et al. (W.D. N.Y. September 7, 2007)

Decision and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a U.S. citizen of Chinese heritage, alleged disparate treatment and hostile work environment under Title VII, as well as various claims under New York discrimination laws, after she was denied tenure by Defendants. The court found that Plaintiff’s Title VII claims were time barred since she neglected to file a charge with the EEOC within the 300-day time period. The court also dismissed Plaintiff’s hostile work environment claim because the “single discrete incident of discrimination,” that is, the tenure denial, was neither severe nor pervasive. Last, the court found it had subject matter jurisdiction over Plaintiff’s state law claims. 

Retaliation; Tenure; Faculty & Staff; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Otis Grant v. The Trustees of Indiana University, et al. (7th Cir. August 31, 2017)

Order affirming the district court’s grant of Defendant’s summary judgment on all claims. Plaintiff, an African American tenured professor at the University of Indiana South Bend (USB), filed suit against Defendants USB, the Trustees, and several University employees alleging racial discrimination, retaliation, a violation of procedural due process, defamation, and breach of contract following his termination for “serious misconduct” related to misrepresentations on his curriculum vitae (CV). Plaintiff argued under the “cat’s paw theory of liability” that the Vice Chancellor of Academic Affairs lacked decision-making authority, but used a formal decision maker, here, the Chancellor of USB, to enact a discriminatory employment action. The court found that Plaintiff failed to show Defendants harbored discriminatory intent in investigating the CV misrepresentations and that Plaintiff could not argue pretext because he failed to show that the CV misrepresentations were false. The court further found that Plaintiff’s pre-termination process met the Constitutional requirements of procedural due process. The court granted Defendant’s motion for summary judgment on all claims because Plaintiff could not prove that the alleged defamatory statements published in the school’s newspaper regarding his CV misrepresentations were false, alongside the fact that Plaintiff could not show a valid tenure contract existed based on the University’s handbook. 

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.