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
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Employee Benefits & ERISA; Faculty & Staff

Sacerdote v. New York University (S.D.N.Y. Feb. 13, 2018)

Opinion and Order granting Plaintiffs’ Motion for Class Certification. Plaintiffs allege that New York University breached fiduciary duties of loyalty and prudence under the Employee Retirement Income Security Act (ERISA).  In certifying the class of plaintiffs, the Court found that Plaintiff’s had established the numerosity requirement for class certification, since between 19,000 and 24,000 employees participated in the retirement plan, thus making joinder impracticable.  The court also determined that the was a commonality in questions of law and fact and a typicality of circumstances among the named Plaintiffs and the unnamed class of individuals. The court also determined that the Plaintiffs were adequate representatives of the proposed class.

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

Woesler v. Utah Valley University (10th Circuit, Feb. 13, 2018)

Order and Judgment affirming summary judgment for the Defendant.  Plaintiff, a Caucasian male of German descent who had a one-year tenure-track position as coordinator of the Chinese Studies program at Utah Valley University (UVU), alleged that UVU discriminated against him and subjected him to a hostile environment based on race, national origin, and gender, and retaliated against him when UVU declined to award him tenure.  Though Plaintiff produced evidence that his colleagues had made hostile comments, the court concluded that “isolated incidents,” like the ones Plaintiff identified, did not amount to a hostile environment under Title VII.  The court also affirmed judgment for the Defendant on Plaintiff’s disparate treatment claims because the Plaintiff provided no evidence that UVU treated him differently from any similarly situated employee.  Finally, the court affirmed judgment for the Defendant on the issue of retaliation, since Plaintiff offered no evidence suggesting that retaliatory animus was the “but-for” cause of UVU’s decision not to award him tenure. 

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.

Employee Discipline; Faculty & Staff; Campus Police, Safety & Crisis Management

Whitehurst v. East Carolina University (N.C. App. Feb. 6, 2018)

Order affirming the Final Decision of the Administrative Law Judge. Appellant, East Carolina University (ECU), dismissed Appellee—an officer in ECU’s Police Department—after he failed to properly investigate and document an assault incident on campus. After terminating Appellee for “unacceptable personal conduct for which no reasonable person should expect to receive a prior warning,” Appellee sought review by the Office of Administrative Hearings before an Administrative Law Judge (ALJ), who did not find just cause for dismissal. Instead, the ALJ demoted Appellee one pay grade below his rank. Appellant contends that the ALJ erred in concluding that ECU did not have just cause to dismiss Appellee and the ALJ lacked authority to order the alternative sanction of demotion. The court found that under state law, ECU did not have just cause to dismiss Appellee because his conduct was mitigated by his misunderstanding of who the assault victim was, the relatively light sanction imposed on a different responding officer for a similar violation, and Appellee’s lack of prior disciplinary actions. The court also  concluded that the ALJ had authority to impose the less severe sanction of demotion. 

Sex Discrimination; Faculty & Staff; Discrimination, Accommodation, & Diversity

Brunarski, et al. v. Miami University (S.D. Ohio, Jan. 26, 2018)

Report and Recommendation denying Defendant’s Motion for Summary Judgment. Plaintiffs are two female Associate Professors of Finance at Miami University (MU)’s Farmer School of Business and alleged that MU violated the Equal Pay Act (EPA) by paying them less than similarly situated male comparators. The court found that Plaintiffs established a prima facie case of wage discrimination under the EPA because they had different base salaries than two male comparators despite similar job titles, similar hire dates, and similar supervision by the Department Chair. Under the EPA, Defendant was then required to prove that gender played no role in the disparity, either by offering evidence of a merit system or the presence of a legitimate business reason other than sex. The court found that while Defendant proffered three facially neutral factors to explain the pay differences—participation in study-abroad programs, teaching awards, and research—they failed to prove that these factors were actually relied upon to award raises. Specifically, there was no evidence that professors knew that their raises were tied to these factors and that the factors were consistently applied. The court also provided that a professor’s ability to participate in study-abroad programs or to receive teaching awards was based on their Student Evaluation of Teachers (SETs) scores, an evaluation that potentially reflected a “gender penalty” against female faculty in quantitative business disciplines.

Contract Administration; Practice of Higher Education Law; Faculty & Staff

Koul v. University of Rochester, et al. (W.D.N.Y. Jan. 25, 2018)

Decision and Order granting Defendant University’s Motion for Summary Judgment. Plaintiff, a part-time clinical faculty member at the University of Rochester’s Strong Memorial Hospital, alleged that the University breached its employment contract with Plaintiff by failing to follow certain policies and procedures in its Handbook and Regulations before terminating Plaintiff’s one-year term appointment. The court found that Plaintiff failed to state a claim for breach of contract because the Handbook afforded the  University broad discretion to renew or decline to renew Plaintiff’s appointment. 

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. 

FLSA & Categorization of Employees; Faculty & Staff

U.S. Department of Labor Fact Sheet #71 on “Internship Programs Under the Fair Labor Standards Act” (January, 2018)

On January 5, the Department of Labor announced via press release that it would adopt the 7-factor “primary beneficiary test” in ascertaining whether a student intern must be classified and compensated as an “employee” under the Fair Labor Standards Act.  The Department’s Fact Sheet #71 on “Internship Programs Under the Fair Labor Standards Act” outlines relevant factors under the primary beneficiaries test, including the parties’ expectations or promises of compensation, whether the internship provides training similar to that which would be given in an educational environment, and the duration of the internship, among other things.