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.

New Search
Litigation, Mediation & Arbitration; Practice of Higher Education Law; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Pierotti v. Bd. of Regents of the Univ. of Cal. (N.D. Cal. May 11, 2018)

Order granting Defendant’s Motion for Partial Summary Judgment. Plaintiff, a senior administrator at the University of California (UC) Berkeley who proceeds pro se, alleged under Title VII and state law that 1) a UC immediate supervisor subjected her to sexual harassment and 2) Defendant retaliated against her by demoting and terminating her after she pursued a whistleblower complaint. Defendant alleged that Plaintiff was terminated for “engaging in a lengthy sexual relationship with a subordinate and by abusing her position with the University to provide that subordinate promotions, pay raises and bonuses.” Looking to the scope of conduct alleged in Plaintiff’s EEOC charge, the court found that Plaintiff’s sexual harassment claim was not “reasonably related” to the general allegations of age and sex discrimination set forth in the EEOC charge. Further, equitable excuse could not save Plaintiff’s sexual harassment claim because her inquiry to the EEOC about adding claims that accrued “since the time” she initiated her charge did not encompass harassing conduct by her supervisor that occurred before her EEOC filing. As a result, Plaintiff could not show that but for her reliance on a mistaken response by an EEOC employee, she would have been able to file her sexual harassment claims. The court further found Plaintiff’s retaliation claim time-barred, since Plaintiff filed her cause of action outside the three-year statute of limitations. Moreover, Plaintiff’s retaliation claim could not proceed under equitable tolling because doing so denied Defendant timely notice of the claim.

First Amendment & Free Speech; Title IX; Sexual Misconduct & Other Campus Violence; Sex Discrimination; Due Process; Discrimination, Accommodation, & Diversity; Constitutional Issues

Doe v. Distefano (D. Colo. May 7, 2018)

Order granting in part and denying in part Defendant’s motion to dismiss.  Plaintiff, a male student at the University of Colorado, Boulder (University), sued after he was expelled for sexually assaulting two female students, claiming that the University’s investigation and its outcome violated Title IX because both were “motivated by pervasive anti-male bias amounting to sex discrimination.” Plaintiff also claimed a procedural due process violation and requested the Court order Defendant to purge an adverse notation from his transcript.  The court granted Defendants’ motion on the portion of Plaintiff’s claim based on the assertion that “[a] person has a protected liberty interest in his good name, reputation, honor and integrity” because Plaintiff failed to contest Defendant’s counterarguments in his reply and because “[h]arm to reputation alone is not the sort of harm that supports a procedural due process claim…[under] the so-called ‘stigma plus’ test.” However, the court denied the motion as to the portion of Plaintiff’s claim based on a property interest because Defendant failed to engage the question raised by Plaintiff “whether this context—wherein a plaintiff is accused of conduct which may form the basis for criminal prosecution—changes the Mathews v. Eldridge [due process] calculus in a manner requiring more than minimal notice and an opportunity to respond” and because “Plaintiff’s accusations, taken together, create a plausible inference of bias against those accused of sexual misconduct.” 

Sex Discrimination; Discrimination, Accommodation, & Diversity

McMullen v. Arcadia University (E.D. Pa. April 26, 2018)

Memorandum Granting Defendant’s Motion for Summary Judgment.  Plaintiff, a patrol officer for the Department of Public Safety at Arcadia University, alleged that she was disciplined, suspended, and terminated based on her gender.  Plaintiff failed to establish a prima facie case of discrimination because she could not demonstrate that she was similarly situated to male employees who were treated more favorably.  The court also credited Defendant’s legitimate reasons for the adverse employment actions—namely, based on multiple instances of unprofessional conduct, neglect of supervisory duties, misuse of computer resources, and failure to report inappropriate conduct of other officers, Plaintiff accrued a lengthy disciplinary record of verbal warnings, a counseling letter, formal discipline, a “last chance letter,” and ultimately termination after she engaged in 5 additional incidents of misconduct.  Even if Plaintiff were able to establish the prima facie elements of discrimination, Plaintiff did not offer any evidence that would give rise to an inference of discrimination or otherwise implicate that Defendant’s legitimate reasons for suspending and terminating her were pretext for unlawful discrimination. Notably, the court gave no weight to a non-decisionmaker’s stray remark about Plaintiff being a “woman officer who was a big problem,” characterizing the remark as an accurate description Plaintiff’s gender but not implicating discriminatory animus.

Title IX; Sexual Misconduct & Other Campus Violence; Retaliation; Sex Discrimination

Jane Doe v. Prairie View A&M University and Johnson (S.D. Tex. April 25, 2018)

Memorandum and Order granting-in-part and denying-in-part Defendant Prairie View A&M University’s Motion to Dismiss and granting Defendant Johnson’s Motion to Dismiss. Plaintiff, a student at Prairie View A&M University (A&M) who worked as a researcher at the A&M Agricultural Research Center (ARC), alleged that A&M violated Title VII, Title IX, and Texas tort law in its handling of her report of sexual assault by her supervisor at ARC. At issue was whether Plaintiff’s sexual harassment claims could proceed under both Title VII and Title IX because, as Defendants argued, Plaintiff interacted with her supervisor as an employee of ARC and Title VII afforded her an exclusive remedy for employment discrimination under 5th Circuit precedent in Lakowski v. James.  Distinguishing Lakowski, the court allowed Plaintiff’s Title IX claim to proceed because as a student employed in a job tied to her education, she sufficiently alleged that she was denied the benefits of her educational program and “Title VII alone would not account for all these harms.” The court advanced Plaintiff’s Title IX retaliation claim under the same analysis. Consistent with Texas law, the court dismissed Defendant Johnson since Plaintiff’s claims against him arose from the same subject matter as claims brought against Defendant A&M.

Age Discrimination; Sex Discrimination; Due Process; Race and National Origin Discrimination

Ross and Operstein v. White (C.D. Cal. April 20, 2018)

Order granting-in-part Defendants’ Motion to Dismiss. Plaintiff Operstein, a female professor at California State University Fullerton (CSUF) who is a “non-Hispanic legal immigrant of foreign national origin” and who is over forty-seven years old, alleged that CSUF’s decision to deny her a promotion and tenure stemmed from a CSUF policy to “make Hispanics the majority among faculty administrators and staff.” She also alleged that she was subjected to a hostile work environment; discriminated against her on account of her race, ethnicity, national origin, age, and gender; and denied due process under the Fourteenth Amendment. Plaintiff Ross, Operstein’s husband, alleged that his wife’s denial of tenure and termination deprived him of a community property interest, and that CSUF’s Policy prevented him from equally competing for a faculty position. As an initial matter, the court found that Plaintiff Ross did not have standing to proceed. The court further found that the Eleventh Amendment barred Plaintiff Operstein’s claims for retrospective relief. However, her claim for prospective relief—namely, to enjoin CSUF’s Policy and to declare it  unconstitutional—could proceed under the Ex parte Young exception. The court also allowed her due process claim to proceed based on her unilateral expectation of continued employment and her subjective belief that she accomplished what was necessary to maintain her employment contract.

Genetic Information Nondiscrimination Act (GINA); Retaliation; Race and National Origin Discrimination; Sex Discrimination; Age Discrimination; Disability Discrimination

Gross v. Morgan State Univ. (D. Md. April 19, 2018)

Memorandum granting Defendants’ Motion to Dismiss. Plaintiff, a former employee of Morgan State University (MSU), alleged that MSU and her supervisor discriminated and retaliated against her in violation of the Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Equal Pay Act (EPA), Title VII, and the Genetic Information Nondiscrimination Act (GINA). Plaintiff also brought claims of negligent hiring, retention, and supervision against MSU under state law. The court found that Eleventh Amendment immunity barred Plaintiff’s ADEA and ADA claims, while Plaintiff’s claims under Title VII and GINA lacked subject-matter jurisdiction. Specifically, Plaintiff failed to exhaust her administrative remedies by neglecting to mention race, national origin, gender, disabilities, and genetic information in her administrative complaint. Plaintiff’s retaliation claims under Title VII and GINA also failed because she did not allege that she engaged in a protected activity within the purview of the two statutes. Last, the court found no factual allegations to support Plaintiff’s claim under the EPA and declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims.

Sex Discrimination; Retaliation; Family Medical Leave Act (FMLA); Disability Discrimination; Discrimination, Accommodation, & Diversity

Kortyna v. Lafayette College (3rd Cir. March 30, 2018)

Opinion affirming the district court’s dismissal of Plaintiff’s claims.  Plaintiff, a tenured physics professor at Lafayette College (LC), alleged that LC discriminated against him based on sex and disability, retaliated against him, violated the Family and Medical Leave Act (FMLA), and breached his employment contract when LC terminated him for retaliating against two students who reported that he had sexually harassed them.  The court dismissed Plaintiff’s discrimination claims after finding no plausible evidence to suggest that he was fired for an unlawful reason.  The court noted that Plaintiff’s FMLA retaliation claim “fare[d] no better,” since the evidence suggested that Plaintiff took medical leave “to try to initiate a whole new, other disciplinary process,” and Plaintiff continued to retaliate against one of his accusers while his disciplinary proceeding was halted on account of medical leave.  Last, Plaintiff failed to show that he suffered harm in support of his breach of contract claim.

Sex Discrimination

Rizo v. Yovino (9th Cir. April 9, 2018)

Opinion affirming the district court’s denial of Defendant’s Motion for Summary Judgment. Plaintiff, a math consultant for the Fresno County Office of Education, alleged that Defendant’s use of her prior salary to determine her starting salary violated the Equal Pay Act (EPA). Defendant did not dispute that it paid Plaintiff less than comparable male employees for the same work. Instead, they argued that their consideration of Plaintiff’s prior salary to determine her starting salary was a differential based on a “factor other than sex” within the EPA’s fourth exception for pay disparities between male and female employees performing equal work. Looking to the EPA’s statutory language and legislative history, the court held that prior salary, whether considered alone or with other factors, did not constitute a “factor other than sex” within the fourth exception of the EPA and therefore, did not allow employers to pay disparate wages. The court reasoned, “[i]t is inconceivable that Congress, in an Act the primary purpose of which was to eliminate long-existing ‘endemic’ sex-based wage disparities, would create an exception for basing new hires’ salaries on those very disparities—disparities that Congress declared are not only related to sex but caused by sex.” It further noted that holding otherwise would “allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum.”