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  • Date:

    Fizulich v. Killings (N.D. N.Y. July 20, 2023)

    Memorandum-Decision and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss.  Plaintiff, a former student-athlete at the State University of New York at Albany who is white, brought tort claims against the University’s basketball coach, who is African American, and discrimination and contract claims against the University in the wake of an incident in which he alleges the coach assaulted him in the locker room during an away game.  Plaintiff alleges that the University disciplined and planned to terminate the coach, but later reversed the termination decision following community pressure, which plaintiff alleged resulted in his constructive termination from the team.  The court permitted plaintiff’s Title VI discrimination claim to proceed, finding his factual allegations sufficient to support a plausible inference of discrimination.  The court, however, held that plaintiff’s contract claim, which asserted that the University did not offer him the protective measures provided for in its Violence Policy, was barred by sovereign immunity.   

    Topics:

    Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Student Athlete Issues | Students

  • Date:

    Rogoff v. Long Island Univ. (N.Y. Sup. Ct. July 6, 2023)

    Decision/Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment.  Plaintiff, a tenured professor of business and former dean of the Brooklyn School of Business at Long Island University, brought contract, age discrimination, and retaliation claims against the University after it declined to renew his administrative contract and reduced his salary to that of a full professor.  The University also changed his status to adjunct faculty with loss of benefits after he presented a University Trustee with a “memo of concerns” critical of the University’s administration, though it later revoked the decision.  The court awarded summary judgment to the University on plaintiff’s contract claim, holding that a contract provision referencing “other terms and conditions of employment … in accordance with University policy,” without more, was insufficient to support his expectation of a sabbatical year and salary of at least 75% of his prior administrative salary.  It permitted him to proceed on his age discrimination and retaliation claims with respect to his demotion to adjunct status, finding conflicting pre-trial testimony and the temporal proximity between his “memo of concerns” and his demotion sufficient to raise triable issues of fact.   

    Topics:

    Age Discrimination | Contracts | Discrimination, Accommodation, & Diversity | Retaliation

  • Date:

    Bennett v. Tarrant Cnty. Coll. Dist. (N.D. Tex. July 5, 2023)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss.  Plaintiff, a former Executive Vice President for Advancement with the Tarrant County College District (TCCD), brought retaliation and contract claims against TCCD after its then-Chancellor placed her on an executive development plan and declined to renew her contract following her decision to counsel a subordinate employee related to a workplace conflict.  Plaintiff offered, but attempted to withdraw her resignation and was subsequently placed on administrative leave after she filed an internal grievance against the Chancellor.  Prior to her last day, she also filed discrimination and retaliation charges with the Texas Workforce Commission and the EEOC.  The court permitted plaintiff’s Title VII retaliation claim to proceed, finding sufficient temporal proximity between her EEOC charge and TCCD’s refusal to permit her to withdraw her resignation.  The court, however, dismissed her contract claims, holding that (1) that TCCD’s policies against discrimination and retaliation do not create a contractual right where Title VII is the exclusive remedy, (2) that its policies did not specifically and expressly limit its ability to terminate at-will employees, and (3) that plaintiff had not sufficiently pleaded a violation of TCCD’s “Freedom from Reprisals” policy because counseling her subordinate was not a “complaint” within the meaning of the policy.   

    Topics:

    Contracts | Discrimination, Accommodation, & Diversity | Retaliation

  • Date:

    Vazquez v. Rider Univ. (N.J. Super. App. Div. June 29, 2023)

    Opinion affirming-in-part and reversing-in-part dismissal and remanding for further proceedings.  Plaintiffs, multiple stakeholders from the former Westminster Choir College, in consolidated cases, sued Rider University to prevent the sale of the Choir College or its relocation from its Princeton campus to Rider’s Lawrenceville campus.  In 1991, Westminster merged with Rider University.  In 2018, after announcing significant financial need, Rider announced a plan to sell the College to a for-profit Chinese Education Technology Company, though the deal fell through.  Rider subsequently moved the College to its Lawrenceville campus.  The trial court dismissed plaintiffs’ claims, finding that under the terms of the Merger Agreement plaintiffs lacked standing to enforce Rider’s obligations under that Agreement.  The Appellate Division reversed as to a group of students and faculty of the Choir College, finding (1) that they were third-party beneficiaries of the Merger Agreement and (2) that they had sufficiently alleged that Rider acted arbitrarily and in bad faith in its proposed sale of the College to a company not qualified to run the College to gain contractual standing to sue.   

    Topics:

    Contracts | Financial Exigency & Institutional Merger & Closure | Governance | Real Estate Transactions | Real Property, Facilities & Construction

  • Date:

    U.S. Dep’t of Defense. GSA, and NASA Interim Rule Prohibiting TikTok (June 2, 2023)

    U.S. Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Interim Rule prohibiting TikTok on information technology used by Government Contractors. This Interim Rule implements the No TikTok on Government Devices Act included in the Consolidated Appropriations Act, 2023. The Rule amends the Federal Acquisition Regulation to include contract language providing that Government Contractors are “prohibited from having or using [TikTok] on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees.” The Interim Rule is effective immediately. Comments are due on or before August 1, 2023.  

    Topics:

    Contracts | Contracts Administration | Cybersecurity | Technology

  • Date:

    Papin v. Univ. of Miss. Med. Ctr. (S.D. Miss. May 18, 2023)

    Order granting Defendant’s Motion for Judgment Notwithstanding the Verdict. Plaintiff is a former medical resident at the University of Mississippi Medical Center (UMMC) who was placed on a Remediation Agreement for providing poor patient care. After signing the Agreement, plaintiff did not return to work. He then alleged breach of contract when UMMC terminated his employment prior to the Agreement’s 60-day period, and a jury found in his favor. The court granted judgment notwithstanding the verdict, holding that plaintiff’s promise to fulfill the duties of his original employment contract with UMMC was not new consideration and did not support a valid modification of the original employment contract.  

    Topics:

    Contracts

  • Date:

    Runaway Records Prods. v. Franciscan Univ. of Steubenville (W.D. Pa. May 10, 2023)

    Memorandum Opinion granting-in-part and denying-in-part Plaintiff’s Motion to Dismiss Counterclaim. Plaintiff, a production company that entered into a three-year agreement in February 2020 to provide audiovisual and broadcasting services for the Franciscan University of Steubenville, including for in-person conferences, brought contract and conversion claims against the University, alleging that when it cancelled events due to the coronavirus pandemic and terminated its agreement with plaintiff, it retained and used equipment plaintiff had installed on campus. The University, in turn, brought contract and unjust enrichment counterclaims, alleging that it paid plaintiff for costs and equipment related to goods and services that plaintiff did not provide. In dismissing the University’s contract claim, the court held that plaintiff’s nonperformance was excused due to the nonoccurrence of the scheduled events, which were conditions precedent. It held, however, that the University adequately pleaded unjust enrichment in the alternative.  

    Topics:

    Campus Police, Safety, & Crisis Management | Contracts | Coronavirus | Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    Save Berkeley’s Neighborhoods v. The Regents of the Univ. of Cal. (Cal. App. Apr. 27, 2023)

    Opinion vacating and remanding for dismissal. Save Berkeley’s Neighborhoods (SBN) challenged a plan by the University of California, Berkeley to construct new residential and academic space and to expand its enrollment, asserting that the University’s review of the plan’s environmental impact did not meet the requirements for the California Environmental Quality Act (CEQA). The trial court granted a writ of mandate ordering the University to decertify its Supplemental Environmental Impact Review (SEIR), void the construction plan, and suspend further increases to enrollments, and the California Supreme Court declined to review or stay the writ. California then passed Senate Bill 118 shifting the focus of the CEQA from enrollment to campus population and limiting the remedies available if a court finds an impact review deficient. The Regents also certified a new Environmental Impact Review. On appeal, the California Court of Appeals held that Senate Bill 118 and the new EIR mooted SBN’s challenge.  

    Topics:

    Construction Projects & Contracts | Contracts

  • Date:

    U.S. Dep’t of Defense Guidance on Confucius Institute Waiver Program (March 2023)

    United State Department of Defense (DoD), Office of Basic Research Guidance to U.S. Institutions of Higher Education (IHE) on the Confucius Institute Waiver Program (CIWP).  The guidance defines a Confucius Institute as “a cultural institute funded either directly or indirectly by the Government of the People’s Republic of China.”  The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 prohibits the DoD from funding a U.S. IHE that hosts a Confucius Institute unless it receives a waiver from the Secretary of Defense.  Applications for waivers are due by June 1, 2023.  The prohibition takes effect on October 1, 2023.   

    Topics:

    Contracts | Grants, Contracts, & Sponsored Research

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