Cases & Developments - National Association of College and University Attorneys

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Date:
11/22/2024
LiVolsi v. Univ. of Tex. at Austin (W.D. Tex. Nov. 15, 2024)
Order denying Defendant’s Motion to Dismiss. Plaintiff, a female former Academic Advisor for the University of Texas at Austin School of Music brought Title VII discrimination claims against the University alleging she experienced sex discrimination and harassment as well as retaliation from one of her supervisors. Specifically, plaintiff alleged her supervisor made several unwelcome comments about her sex such as “oh all three women are here. I’m scared!” When plaintiff requested her supervisor contact a different employee instead of reaching out to her when she was off work he purportedly responded with “But I prefer talking to you…” and in a conversation about her supervisor’s pull up bar on his door, plaintiff contends he told her “you don’t have to [do pullups]. Just let your body hang there. It’s great for your body and it feels good!” Plaintiff alleged she went to the Title IX office to make a complaint but was informed that office was for students only. After students made similar complaints, plaintiff returned to the Title IX office but was told that it “could not guarantee confidentiality or protection from retaliation” and plaintiff then closed her case out of fear of retaliation. Plaintiff eventually took FMLA leave for her mental health after alleged continued mocking and demanding requests from her supervisor. Upon her return from leave, she alleged the remarks did not abate, and she then resigned her position and filed a charge with the Equal Employment Opportunity Commission (EEOC). In allowing plaintiff’s claims to proceed, the court found that she sufficiently pled harassment as she gave numerus examples of unwelcome comments, finding it possible that her supervisor’s alleged behavior was frequent enough to be severe, and given that some of the communication directly affected her work performance the court further found it plausible that the behavior could rise to the level of offensive and hostile conduct. It also found that plaintiff sufficiently stated a claim of discrimination via alleged demands of additional work and tasks plausibly considered “reassignment to menial or degrading work” and further, after reporting her concerns, she was told “she should probably leave the office due to the continued implosion” therefore encouraging her to resign. Because these alleged actions were directed solely toward plaintiff and not her male peers, the court found it sufficient at this stage that the actions could plausibly have been taken due to plaintiff’s sex. Finally, the court found that plaintiff sufficiently pled retaliation as she demonstrated constructive discharge through her resignation due to the difficulty from working with her supervisor.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination
Date:
11/22/2024
Frowner v. Fayetteville State Univ (E.D. N.C. Nov. 19, 2024)
Order denying Defendant’s Motion to Dismiss. Plaintiff, an African American woman and former librarian for the Fayetteville State University brought Title VII retaliation claims against the University following her termination. Plaintiff alleged that her white male supervisor wrote inaccurate performance evaluations about her, and that after she filed a complaint about the supervisor with the University’s Human Resources Department, he further retaliated against her by drafting a second negative evaluation, placing her on a three-day suspension amidst a mediation between the two, and then subsequently terminated plaintiff following her filing a complaint with the Equal Employment Opportunity Commission (EEOC). The court found the claim was sufficient to survive a motion to dismiss given the alleged temporal proximity between plaintiff’s filing of a retaliation complaint with the EEOC and her suspension from work, which fell within the three-month window recognized by the Fourth Circuit. It reasoned that plaintiff adequately pled that her supervisor was aware of her protected activity of filing an EEOC complaint at the time of her termination, and the “closeness in temporal proximity” was enough to infer causation, sending the case to discovery.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
11/15/2024
Finnegan v. Mass. Coll. of Pharm. & Health Scis. (D. Mass. Nov. 13, 2024)
Memorandum and order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a former student at the Massachusetts College of Pharmacy and Health Sciences (MCPHS or the College) brought discrimination claims alleging violation of the Rehabilitation Act, the American with Disabilities Act, unfair and deceptive trade practices, breach of contract, and denial of basic fairness following his dismissal from the College’s pharmaceutical graduate program. Plaintiff took a leave of absence following a hospitalization and diagnosis of chronic migraines. Plaintiff alleged the dean assured him that he (1) would not be penalized for his condition, (2) could retake any missed classes the following semester, and (3) would be permitted extra time on additional days for test taking. Plaintiff further alleged that the dean assured him that sorting his logistics with the University regarding the foregoing would be taken care of on his behalf. Plaintiff alleged that despite these assurances, the dean did not report that plaintiff took a leave of absence and as a result, plaintiff received failing grades in all of his classes instead of withdrawals for the fall 2021 semester, which resulted in plaintiff’s dismissal from the College based on poor academic performance, which was in error. In allowing plaintiff’s disability discrimination claims to proceed, the court found that plaintiff demonstrated he could satisfy programmatic requirements with proper accommodations, had they been provided, writing, “Because [plaintiff] has alleged that he would be granted additional time on examinations which did not occur and provided a medical letter stating his need for aid, [] he has alleged sufficient facts that he requested an accommodation that was not provided.” The court dismissed claims for unfair and deceptive trade practices, finding that in addition to failing to serve the required demand letter, plaintiff misconstrued the meaning of the term “trade or commerce.” It also dismissed the breach of contract claim since the College’s handbook expressly stated that it “is not intended and cannot be construed as a contract or guaranty of any kind, express or implied, and the University may change, delete, or add to these guidelines unilaterally in its sole discretion and without notice.” Finally, it dismissed remaining claims alleging the denial of basic fairness, since plaintiff failed to adequately allege the College acted arbitrarily or capriciously in conducting his dismissal and further failed to point to any policy requiring a formal hearing prior to the dismissal.
Topics:
Academic Performance and Misconduct | Disability Discrimination | Discrimination, Accommodation, & Diversity | Students
Date:
11/15/2024
Kansas v. U.S. Dep’t of Ed. (D. Kan. Nov. 12, 2024)
Notice of supplemental list of schools attended by plaintiffs. This notice of additional schools follows plaintiffs’ pending challenge to the 2024 Title IX Final Rule from the U.S. Department of Education, which they claim impermissibly defined “sex discrimination” to include discrimination on the basis of gender identity. The enumerated institutions, which are attended by members or children of members of plaintiff organizations Young America Foundation and Moms for Liberty, span the P-20 spectrum and addend the ongoing preliminary injunction against implementation of the Rule including in the prior 26-page Notice of List of Colleges & Universities by Young America’s Foundation and Female Athletes United.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
11/15/2024
Agaj v. Bos. Coll. (D. Mass. Nov. 12, 2024)
Memorandum and order denying in part and granting in part Defendant’s Motion to Dismiss. Plaintiff, a former landscaper for Boston College brought Title VII claims of religious discrimination against the College following his termination after he refused to get the COVID-19 vaccine. Plaintiff also brought a myriad of other claims alleging the College discriminated against him as a “legal immigrant minority,” violated his privacy, made false representations, intended to deceive him, tried to make him resign under duress, and engaged in harassment, coercion, intimidation, discrimination, and retaliation on the basis of medical and sincerely held religious beliefs. During plaintiff’s time with the College, it required all students, faculty, and staff, to be fully vaccinated against COVID-19 prior to participating in any on-campus activities related to the 2021-22 academic year, allowing exceptions for legitimate religious and medical reasons. Plaintiff submitted two requests for exemption, the first stating that receiving the vaccine would violate his religious beliefs, and that he did not feel safe having one, alleging it would have an adverse effect on his immune system. After that request was denied, plaintiff submitted a second request, stating he was a believer and descendant of the faith of Bogomils, and such religious faith forbade him from taking the vaccine. This request was also denied, and he was informed that failure to submit proof of vaccination would preclude him from entering campus. He was subsequently prohibited from accessing the College’s campus or his workspace and was terminated thereafter. The court found that plaintiff’s second request adequately notified the College that its vaccination requirement conflicted with his bona fide religious practice. Specifically, the court found that plaintiff’s request conveyed his sincere belief that (1) the vaccine would pose a risk to his health, (2) the vaccination requirements conflicted with a tenet of his faith, and (3) his faith required “adherents to abstain from action that would pose a risk to his health or spiritual wellbeing.” The court concluded that absent an exemption, plaintiff could not comply with the College’s vaccine requirement without either transgressing his religious beliefs or being terminated, which was sufficient at this stage to demonstrate that his religion could be the reason for his later termination. Plaintiff’s other claims were dismissed by the court for failure to exhaust administrative remedies and failure to state a claim.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
11/15/2024
Hodge v. Spalding Univ. (W.D. Ky. Nov. 7, 2024)
Memorandum opinion and order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, former members of the women’s volleyball team at Spalding University brought claims of negligence, negligent hiring and supervision, willful and wanton disregard for player safety and well-being, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages alleging they experienced bullying from their teammates while on the volleyball team, and their coach contributed toward the bullying and retaliated against plaintiffs when they complained of the bullying. One plaintiff also brought claims of disability discrimination and retaliation under the Americans with Disabilities Act. Plaintiffs allege they were both kicked off the team following concerns for their mental health due to the alleged bullying from other members on the team. In finding that plaintiffs sufficiently alleged claims of negligence, the court found that based on the allegations that a coach (1) disclosed plaintiff’s confidential, personal information by sharing that she took time off for her mental health, and (2) forced the student to perform sprints despite her known hip injury, plausibly breached the duty of ordinary care. In allowing plaintiffs’ NIED claims to proceed, the court credited plaintiffs’ allegations that they experienced “emotional distress, anxiety, embarrassment, humiliation, and mental anguish” from the claimed bullying by their teammates, which the coach purportedly disregarded. Based on its finding that plaintiffs sufficiently alleged gross negligence and NIED claims, the court determined that a jury could award punitive damages at a trial. However, the court dismissed the claims of negligent hiring and supervision finding that plaintiffs failed to demonstrate how the coach was unfit for the job at the time of hire or how her supervisors were aware of the alleged wrongdoing when it transpired. It also dismissed claims for willful and wanton disregard finding there was not an “entire absence of care” and that plaintiffs were unable to establish intentional, reckless, outrageous, or intolerable actions by the coach necessary to sustain a claim for IIED. Finally, the court allowed the single plaintiff’s claims of disability discrimination and retaliation to proceed finding the coach’s alleged decision to prohibit the student from playing for an entire season after being informed of her mental health diagnosis constitutes a “denial of [plaintiff one’s] opportunity … to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of [the university]” on the basis of her diagnosed anxiety.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Student Athlete Issues | Students
Date:
11/8/2024
Joseph v. Bd. of Regents of the Univ. Sys. of Ga. (11th Cir. Nov. 7, 2024)
Opinion and Order reversing the order denying the dismissal of Plaintiff A’s claims and affirming the judgment against Plaintiff B, after the Eleventh Circuit consolidated two appeals against the Board of Regents for the University System of Georgia, and the Georgia Tech Athletic Association to determine whether Title IX provides an implied right of action for sex discrimination in employment. In the first case, Plaintiff A was a former art professor at Augusta University, whom multiple students complained had sexually harassed them. While an investigation was pending, Plaintiff A received a negative teaching evaluation. Then, he was suspended for one semester after the investigation found violation of the University’s sexual harassment policy. He appealed unsuccessfully, and while the appeal was pending Plaintiff A was allegedly reassigned to remedial tasks and then refused contract renewal, which led him to bring claims of retaliation and sex discrimination in employment under Title IX. In the second case, Plaintiff B was the former head women’s basketball coach for Georgia Tech, who raised complaints alleging funding disparities between the women and men’s basketball programs, including sending a letter to the institution’s president, which also alleged “differential treatment of her as a female coach.” At the same time, the university received complaints regarding Plaintiff B’s coaching techniques, including parent letters that alleged she and her staff created a “toxic” environment for the athletes. Although Plaintiff B denied that she created a “toxic” environment, an investigation corroborated the claims, and she was fired. Plaintiff B filed a charge of discrimination with the Equal Employment Opportunity Commission in which she alleged sex discrimination and retaliation under Title VII, sex discrimination under Title IX, and violation of the Georgia Whistleblower Act. After consolidating the appeals, the Eleventh Circuit found that Title IX does not provide a right of action for employees under Title VI, under a sex discrimination theory, and that neither plaintiff met their burden to sustain a claim for retaliation. Ultimately, the Circuit reasoned that “an implied right of action would impose unclear conditions or remedies for Spending Clause legislation, [and] we should not recognize that right.” Thus, the Circuit reversed and remanded with instructions to dismiss Plaintiff A’s claim, considering he did not oppose an underlying violation; and affirmed dismissal of Plaintiff B’s claims under all theories, finding that she failed to tie her claims to her sex or to rebut the preferred nondiscriminatory reasons for her termination.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
11/8/2024
Kammerer v. Univ. of Kan. (D. Kan. Nov. 6, 2024)
Memorandum and Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiff, a former professor at the University of Kansas brought FMLA and Rehabilitation Act claims against the University and his former supervisors alleging they unlawfully interfered with his right to use his FMLA leave and discriminated and retaliated against him for using that leave. Plaintiff also claimed the University discriminated and retaliated against him because of his disability. Previously, plaintiff suffered a back injury that required accommodation. He agreed to change his work responsibilities per the suggestion of the Executive Associate Dean who was responsible for considering his request. Although plaintiff alleged he was assured that the change was not a new contract, he alleged that the University required him to accept a pay reduction of $19,000 as a condition of the accommodation. Later, he sought FMLA leave for needed surgery. Following his return to work, plaintiff alleged his supervisors declined him the opportunity to apply for a promotion and promoted another less-qualified employee. He further alleged he faced a course load that was three times the load of his colleagues and was refused additional compensation for that higher course load. Finally, he claimed that he was prohibited from inviting guest speakers or being awarded monetary grants. After filing a conciliation notice with the University, he was placed on administrative leave until his contract expired and then, notified that his contract would not be renewed. The court granted the motion to dismiss plaintiff’s FMLA claims as they were brought against his supervisors in their individual capacities, and as such, they are not “employers” governed by FMLA, declining to follow the rule of the Third, Fifth, and Eighth Circuits. In permitting plaintiff’s Rehabilitation Act claims to proceed, the court reasoned that plaintiff alleged several injuries that would support an award of economic damages, even though they may not arise from breach of contract, per se.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Family and Medical Leave Act (FMLA) | Retaliation
Date:
11/8/2024
The Louis D. Brandeis Ctr. for Human Rights Under Law v. President & Fellows of Harvard Coll. (D. Mass. Nov. 5, 2024)
Memorandum and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiffs, the Louis D. Brandeis Center, Inc., a Jewish legal advocacy non-profit, and Jewish Americans for Fairness in Education, (JAFE) brought a putative class action against Harvard College alleging it allowed Jewish and Israeli students to be “subjected to cruel antisemitic bullying, harassment, and discrimination.” Plaintiffs brought claims of direct discrimination; hostile educational environment; and retaliation under Title VI, and allege numerous examples of purportedly Antisemitic behavior, including that a professor required students to abandon a project based on their Israeli and Jewish identity and compared their use of the words “Jewish State” to advocating for America to become a country of “White supremacy.” An external investigation found the professor’s treatment of plaintiffs “ran counter to the College’s free speech and anti-bias policies, and that the professor created a hostile learning environment and subjected students to bias. Following this finding, plaintiffs claim the College failed to take remedial action. Plaintiffs further allege that this differed from when pro-Palestinian protestors shoved a keffiyeh in a Jewish student’s face while he was filming a protest and told him to “get out” and that after he refused other protestors joined in and pushed him, resulting in criminal charges for assault and battery. In that instance, plaintiffs claim the College declined to take further action citing the charged criminal action, choosing to rely upon the criminal charges as sufficient. Finally, a JAFE member allegedly emailed the College seeking help getting to her lab due to fear of protesters who they claimed were “celebrating the terrorist attack and referring to it as an act of ‘justified resistance.’” but received no response from the College, and when she tried to file a formal complaint, it would not let her proceed anonymously so she dropped her complaint in fear. The court dismissed the direct discrimination claim, finding plaintiffs failed to sufficiently establish evidence beyond a reasonable inference of bias that the College treated non-Jewish and non-Israeli comparators similarly. In allowing plaintiffs’ deliberate indifference claim to proceed, the court was persuaded by the allegation that the College failed to commence an investigation for a prolonged period of several months. The court dismissed the retaliation claims absent allegations that the College took any material adverse action against plaintiffs.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
11/8/2024
Hight v. Univ. of Chi. (N.D. Ill. Oct. 31, 2024)
Memorandum opinion and order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a former medical student at the University of Chicago brought disability discrimination claims against the University alleging violations of the ADA and refusal to accommodate under Section 504 of the Rehabilitation Act of 1973. He also brought claims for breach of tuition contract under Illinois law. Plaintiff had multiple disabilities that were recognized by the University for which he received reasonable accommodations, such as extra time and breaks when he took exams. During the program, he took a one-year medical leave following a professionalism concern report due to his absences and being placed on academic probation. Upon his return, he was moved from academic probation to monitored academic status and remained on that status until he was dismissed from the program. Prior to his dismissal, plaintiff alleged he began taking a new medication that inhibited his ability to control his actions, which included creating an email account under the name of another student and using the account to send evaluations and feedback to one of his professors. In response, a disciplinary proceeding was conducted that dismissed plaintiff for (1) repeated unprofessional behavior; (2) the egregious nature of the final professionalism complaint; (3) unprofessional behavior while on monitored academic status; and (4) significant and sustained academic performance deficiencies. Plaintiff appealed the decision in a timely manner, but allegedly was not given the ten-day response time outlined in the University’s policy. Plaintiff claimed that the incidents leading to his dismissal resulted from or were exacerbated by his disability and that there was no evidence supporting a finding of academic problems following his return from his leave of absence. In finding that plaintiff plead facts sufficient to establish a prima facie case of discrimination under Title III of the ADA, the court found (1) there was no dispute as to whether plaintiff had a disability as he was already receiving accommodations; (2) plaintiff sufficiently alleged he is able to complete his studies and comply with the requirements of the program with reasonable accommodations through his move from academic probation to monitored academic status; and (3) the events that the University characterized as “unprofessional conduct” leading to his dismissal, could be traceable to his disability and might have been accommodated. However, the court found that plaintiff failed to sufficiently plead all three elements of a refusal to accommodate claim under either the ADA or the Rehabilitation Act and dismissed the claims, without prejudice. Further, the court dismissed part of plaintiff’s breach of contract claim because Illinois law does not recognize a contractual obligation arising from a party’s preexisting legal obligations. However, the court held that plaintiff did plead sufficient facts to establish an implied contract through the procedural protections articulated in the University’s guidelines regarding disciplinary proceedings, specifically how the University did not abide by the ten-day appeal timeline.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation

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