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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Age Discrimination; Disability Discrimination; Discrimination, Accommodation, & Diversity

Main v. Tulane Univ. (E.D. La. May 7, 2018)

Order granting Defendant’s motion for summary judgment.  Main (Plaintiff), a 60-year old former employee of Defendant with a PTSD diagnosis, sued claiming age discrimination, disability discrimination, and retaliation after her position as a Senior Curator was terminated as the result of a restructuring of museum staff at Tulane University (Defendant).  The court found that Plaintiff did not create an issue of fact related to Defendant’s argument that she was not qualified for the newly created curator position and that, notably, there was “no evidence in the record to support any causal connection between the elimination of Plaintiff's position and her age.”  Regarding her disability discrimination claim, the Court noted that Plaintiff admitted she did not request a disability accommodation, found no merit to her confidential medical information disclosure claim, and found that Plaintiff’s “contention that she was discharged because of her PTSD diagnosis is even more bereft of evidence than her age claim.” The court similarly rejected Plaintiff’s claim of retaliation due to “the complete absence of any evidence whatsoever to suggest that retaliation played any role in the decision to eliminate Plaintiff's position.”

Equal Protection; Disability Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity; First Amendment & Free Speech; Constitutional Issues

Committe v. Yen, et al. (N.D. N.Y. May 7, 2018)

Memorandum Decision and Order granting Defendants’ Motion to Dismiss. Pro se Plaintiff, a sixty-six year old man with physical disabilities, alleged under the equal protection clause pursuant to a section 1983 claim that State University of New York (SUNY) discriminated against him based on age and disability when it failed to hire him for a tenure-track position and visiting assistant professor position. Plaintiff further alleged that SUNY violated his “right to academic freedom under the due process clause” by requiring him to participate in a teaching presentation as part of his interview. The court dismissed Plaintiff’s disability discrimination claim because disability is not a protected class under the equal protection clause. The court further dismissed Plaintiff’s age discrimination claim because he failed to allege facts that supported an inference of age discrimination and failed to rebut Defendants’ legitimate, non-discriminatory reason for hiring other younger applicants—namely, that Plaintiff received negative evaluations on his teaching presentation. Plaintiff’s academic freedom claim was dismissed because it was unclear to the court how SUNY’s interview requirement violated any right to academic freedom under First Amendment jurisprudence.

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.

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.”

Race and National Origin Discrimination; Retaliation; First Amendment & Free Speech; Age Discrimination; Discrimination, Accommodation, & Diversity; Equal Protection; Constitutional Issues

Wilson v. City University of New York, et al. (E.D.N.Y. March 26, 2018)

Unpublished Memorandum & Order adopting the Magistrate Judge’s Report and Recommendation, granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a tenured African-American professor at the City University of New York (CUNY)’s Brooklyn College, alleged that CUNY discriminated against him on account of age and race when it terminated him for misappropriating $100,000 of CUNY funds, using CUNY funds for personal purchases, and submitting false and misleading documents. Before the court were Plaintiff’s objections to the dismissal of his defamation, First Amendment retaliation, Fourteenth Amendment claim for selective enforcement, and Fourth Amendment claims against various Defendants. The court rejected Plaintiff’s defamation claim against Defendant Kotowski because he failed to show that the Defendant’s statement was false, and to the extent that he was alleging “defamation by implication,” failed to make a “rigorous showing” from which one could draw a defamatory inference. The court dismissed Plaintiff’s First Amendment retaliation claim because he failed to show that Defendants knew  about his presentation condemning CUNY to a New York City Council Committee (the protected speech) when they  banned him from campus (the adverse action). Third, Plaintiff’s Fourteenth Amendment claim for selective enforcement under the Equal Protection Clause failed because he did not identify any similarly situated comparators. The court dismissed the remaining discrimination claims because the Plaintiff failed to cure legal and factual deficiencies previously identified by the Magistrate Judge. Last, the court rejected Defendants’ argument that collateral estoppel should bar two of Plaintiff’s remaining claims.  Though, in some instances, arbitration could estop plaintiffs from brining claims, in this instance, the arbitrator examined whether Plaintiff’s termination was justified under a collective bargaining agreement (CBA), whereas the issues brought before the court were not limited to the terms of the CBA. 

Age Discrimination; Discrimination, Accommodation, & Diversity

Butler-Burns v. City Colleges of Chicago (N.D. Ill. March 26, 2018)

Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a fifty-six-year-old African American woman who worked for the City Colleges of Chicago (CCC), alleged that CCC discriminated against her based on age and race in violation of the Age Discrimination in Employment Act (ADEA), Title VII, and section 1983, after she was terminated as a Labor and Employee Relations Specialist based on CCC’s purported need for a reduction in force. The court allowed Plaintiff’s ADEA and Title VII claims to proceed.  Even though all of Plaintiff’s comparators had Juris Doctors, and she did not, the court found that the comparators were similarly situated and that Defendants’ proffered reasons for terminating Plaintiff were inconsistent such that they created an inference of pretext for the jury.   The court dismissed Plaintiff’s section 1983 claim of race discrimination under the Fourteenth Amendment.  Plaintiff did not name any individual defendants, nor did she identify an official policy, a widespread practice or custom, or an any official with final policy-making authority, as would be required to impute §1983 liability to a municipality. 

Sex Discrimination; Retaliation; Race and National Origin Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity

Lawrence v. Lawson State Cmty. Coll. (N.D. Ala. March 6, 2018)

Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a sixty-one year old Caucasian male who works as the Director of Financial Services and Risk Assessment at Lawson State Community College (LSCC), alleged that Defendants violated 43 U.S.C. 1981, Title VII, and the Age Discrimination in Employment Act when they purportedly failed to promote him to Dean of Career and Technical Education because of his race; subjected him to a hostile work environment because of his race, age, and/or gender; and retaliated against him after he filed a charge with the Equal Employment Opportunity Commission (EEOC). The court rejected Plaintiff’s failure to promote claim because he did not allege sufficient evidence of discriminatory animus by his supervisor, Defendant Ward, who also played no part in deciding to eliminate the position Plaintiff sought. Plaintiff’s hostile work environment claim failed because the conduct he alleged, which the court characterized as “little more than ordinary squabbles in a typical workplace,” was not objectively severe or pervasive to a reasonable person. Last, Plaintiff’s retaliation claim failed because the conduct he alleged either did not constitute an adverse employment action or lacked causation.