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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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Retaliation; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Udeigwe v. Texas Tech University, et al. (5th Cir. May 11, 2018)

Per Curiam Opinion affirming-in-part and dismissing-in-part the district court’s order to dismiss Plaintiff’s Complaint. Plaintiff, a black male professor at Texas Tech University (TTU) who proceeds pro se, alleged that his non-reappointment to a tenure-track faculty position following a negative mid-tenure evaluation constituted discrimination, harassment, and retaliation based on race in violation of Title VII; deprived him of procedural due process under the Fourteenth Amendment; deprived him of an “equal right to work and/or” resulted in “retaliation due to protected speech because of his race”; and resulted in tortious interference with his employment contract under state law. The court found that Plaintiff’s Title VII claims failed because he did not timely appeal the decision of the district court, while his “equal right to work” claim failed because it lacked a constitutional basis. Noting that Texas did not recognize a property right in continued employment or the promise of tenure, the court dismissed Plaintiff’s procedural due process claim for lack of a recognized property or liberty interest. Acknowledging that “a party cannot tortuously interfere with its own contract,” the court dismissed Plaintiff’s tortious interference claim, since he was not able to show that Defendants “acted in a fashion so contrary to the corporation’s best interests that [their] actions could only have been motivated by personal interests.”  Last, the court found no allegations to support a First Amendment retaliation claim. 

5/15/2018
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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.

5/15/2018
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Discrimination, Accommodation, & Diversity; Retaliation; Race and National Origin Discrimination; First Amendment & Free Speech; Constitutional Issues; Faculty & Staff

Patra and Vaz v. Pennsylvania State System of Higher Education, et al. (M.D. Pa. May 8, 2018)

Order granting Defendants’ motion for summary judgment on all counts. After their teaching contracts at Bloomsburg University were not renewed, Plaintiffs sued, citing eleven allegations, including retaliation and race, national origin, and religious discrimination. The court concluded that Plaintiffs’ brief “utterly fail[ed] to explain” why the Court should not grant summary judgment to the Defendants on all claims. As examples, the court highlighted Plaintiffs’ failure to: (i) explain how their termination was “under circumstances that raise an inference of discriminatory action” under Title VII, (ii) explain what “adverse employment actions” were taken by Defendants; and (iii) provide evidence that they engaged in constitutionally-protected speech to support their First Amendment retaliation claims.

5/10/2018
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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.

4/30/2018
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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.

4/27/2018
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Retaliation; Family Medical Leave Act (FMLA); Disability Discrimination; Discrimination, Accommodation, & Diversity

Davis v. Ky. Cmty. & Technical Coll. Sys. (E.D. Ky. April 18, 2018)

Opinion and Order granting Defendant’s Partial Motion to Dismiss. Plaintiff, a statistics instructor for the Kentucky Community and Technical College System (KCTCS) who was diagnosed with cancer in 2009 and who suffered from panic and anxiety disorder, alleged under the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Kentucky Wage and Hour Act, and Kentucky Civil Rights Act that KCTCS failed to accommodate her disability, interfered with her use of medical  leave, illegally withheld her pay, and terminated her in retaliation for filing reports of discrimination.   The court dismissed Plaintiff’s ADA and FMLA claims pursuant to Eleventh Amendment immunity, concluding that Defendant’s written policies and procedures, which affirmed KCTCS’ commitment to comply with federal law, did not waive immunity. Plaintiff’s request for injunctive relief—specifically to have KCTCS reinstate her position, award her the promotion she was previously denied, grant her distance learning request, and restore her benefits—in connection to her FMLA claim was also barred by the Eleventh Amendment because Plaintiff failed to bring the action against state officials, as required by the statute. The court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims.

4/24/2018
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Sexual Misconduct & Other Campus Violence; Title IX; Retaliation

Garrett v. Univ. of S. Fla. Bd. of Trs. (M.D. Fla. April 18, 2018)

Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a graduate student at the University of South Florida (USF), alleged under Title IX that USF created a hostile educational environment by responding with deliberate indifference to her claim of student-on-student sexual assault, in part by failing to implement measures that would have banned the respondent from being present on campus.  Plaintiff also alleged that USF retaliated against her by charging her with a conduct violation after she filed the report.  Though characterizing Plaintiff’s allegations as showing that USF “promptly acknowledged and investigated [Plaintiff’s] complaint,” and acknowledging pursuant to Davis “that Title IX affords a plaintiff no ‘right to make particular remedial demands,’” the court nonetheless allowed Plaintiff’s deliberate indifference claim to proceed to discovery for further development.  It dismissed her “clearly unreasonable response to sexual violence” claim as redundant to her “deliberate indifference” claim.  The court allowed Plaintiff’s retaliation claim to proceed, since USF charged Plaintiff with a conduct violation shortly after she complained about USF’s handling of her report of sexual misconduct. 

4/24/2018
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Retaliation; Race and National Origin Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity

Hicks v. Bd. of Trs. of the Univ. of Ala. (M.D. Ala. April 18, 2018)

Memorandum Opinion and Order granting Defendant’s Partial Motion to Dismiss. Plaintiff, an African American man over the age of forty, alleged in a section 1983 claim that Defendants discriminated and retaliated against him in violation of the equal protection clause by “continuing to enforce [his] unfair constructive discharge.” The court dismissed the Equal Protection claim for lack of subject-matter jurisdiction because neither Congress nor the State of Alabama had waived Eleventh Amendment immunity for §1983 Equal Protection claims against the State. Even if Plaintiff had been able to overcome immunity, Plaintiff’s retaliation claim would have failed as a matter of law because as stipulated by both parties, “no established right exists under the equal protection clause to be free from retaliation.”

4/23/2018
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