Cases & Developments - National Association of College and University Attorneys

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Date:
11/24/2023
McClendon-Lemman v. Tarrant Cnty. Coll. (N.D. Tex. Nov. 17, 2023)
Order accepting the Findings, Conclusions, and Recommendation of the U.S. Magistrate Judge and granting Defendant’s Motion for Summary Judgment. Plaintiff, a former part-time instructor with the Tarrant County College District (TCCD), proceeding pro se, brought discrimination and retaliation claims against TCCD alleging that after she complained to HR that an African American instructor had allegedly bullied special needs students, she began receiving fewer hours than African American instructors. Plaintiff’s discrimination claim failed because her asserted comparator was not similarly situated and because she otherwise failed to refute TCCD’s evidence that her hours varied greatly and that she sometimes worked more hours than non-white instructors. Her retaliation claim similarly failed because her asserted reduction of hours was not in close temporal proximity to when she filed her complaint.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
11/24/2023
Wilson v. Johnson (N.D. Ind. Nov. 20, 2023)
Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiffs, three former members of the cross-country and track and field teams at Huntington University, brought Title IX deliberate indifference claims against the University, alleging that their former head coach, who was later arrested, subjected them to a hostile environment, unwanted touching, and other assaults. Plaintiffs also alleged that the coach had engaged in sexual relationships with two student-athletes and that two assistant coaches were aware of the relationships and should have known of other inappropriate behavior. In dismissing plaintiffs’ claims without prejudice, the court found insufficient factual allegations that an appropriate person had actual knowledge of the alleged abuse.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
11/17/2023
Mackey v. Pigott (S.D. Miss. Nov. 14, 2023)
Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, the Deputy Executive Director for Accountability at the Mississippi Community College Board who is African American, brought equal protection claims against the members of the Board after he was passed over for the position of Executive Director in favor of an allegedly less qualified white colleague, seeking instatement in the position and damages. The court permitted plaintiff’s claim for instatement to proceed against the defendants in their official capacities, finding that “if reinstatement addresses an ongoing violation,” then, a request for instatement should be treated likewise since both forms of relief seek to remedy “discrete decisions that leave someone without the desired job.” It also permitted plaintiff’s claims against individual capacity defendants to proceed, finding that the successful candidate was a sufficiently similar comparator to plead a prima facie case of discrimination and that the asserted failure-to-promote claim was sufficiently well established to overcome defendants’ assertion of qualified immunity.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
11/17/2023
Johnson v. Watkin (E.D. Cal. Nov. 13, 2023)
Findings and Recommendation that Plaintiff’s Motion for Preliminary Injunction be granted in-part, and that Defendants’ Motion to Dismiss be denied. Plaintiff, a full-time professor at Bakersfield College was an outspoken free speech advocate and critic of colleagues who he perceived to champion diversity, equity, inclusion, and accessibility at the expense of free speech. After the College adopted a new policy requiring employees, among other things, to “promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment,” plaintiff sought declaratory and injunctive relief, alleging that the policy violated First Amendment prohibitions on viewpoint discrimination and compelled speech and was otherwise unconstitutionally vague. In recommending that the request for preliminary injunction be granted in-part, the magistrate judge found that plaintiff was likely to succeed on the merits of his First Amendment challenge with respect to his personal speech, teaching, and academic writing, but not regarding his participation in faculty search committees or in the College’s Equal Opportunity & Diversity Advisory Committee where the College’s interest in the efficiency of its services outweighs his free speech interest under Pickering. The magistrate judge also found that the prohibition on “verbal forms of aggression” in the College’s Code of Ethics is unconstitutionally vague.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech
Date:
11/17/2023
Hughes v. Pacific Univ. (D. Or. Nov. 13, 2023)
Opinion and Order granting Defendant’s Partial Motion for Summary Judgment. Plaintiff, a former Coordinator for Experiential Compliance in the School of Pharmacy Office of Experiential Education at Pacific University, brought discrimination and retaliation claims against the University after she was terminated for allegedly unprofessional communications and failures to follow policies on remote work and use of comp time. Plaintiff alleged that the University discriminated against her by limiting her ability to work remotely to only days when another coordinator would be present in the office and retaliated against her for participating in an assessment committee project that used qualitative research methods to investigate the working environment at the school. In granting summary judgment to the University on her discrimination claim, the court found that male comparators who had greater discretion in when they could work remotely were not in positions similar to plaintiff’s and that her supervisor’s desire to have at least one coordinator in the office every day in case students dropped by was a legitimate, non-discriminatory reason for the policy. In granting summary judgment to the University on her retaliation claims, the court held that her participation in designing the methodology for a survey that found feelings of sexism among the staff was not itself a report or disclosure of wrongdoing and not protected activity.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
11/17/2023
Bennett v. Hurley Med. Ctr. (6th Cir. Nov. 9, 2023)
Opinion affirming Summary Judgment in favor of the Defendant. Plaintiff, a nursing student at the University of Michigan-Flint and clinical intern during Fall 2020 at the Hurley Medical Center who had a history of panic attacks, brought disability discrimination claims against the Center because it withdrew permission for her to have her service dog accompany her on clinical rotations on patient floors after patients and staff had allergic reactions caused by his presence. In affirming summary judgment in favor of the Center, the Sixth Circuit held that plaintiff’s intentional discrimination claim failed because she did not show that the hospital’s decision was motivated by anything other than the allergic reactions, which posed a direct threat to the health and safety of patients. Turning to her failure to accommodate claim, the court found that (1) accommodations necessary to permit the dog’s presence on patient floors, such as screening all patients for allergies, moving patients to other non-specialized floors, and reassigning staff during the COVID-19 pandemic, were not reasonable and (2) the Center repeatedly consulted with medical experts on the feasibility of each of plaintiff’s suggested accommodations and reasonably offered to permit the dog to be present in a crate on a separate floor, and was willing to consider permitting the dog to accompany plaintiff wearing a Shed Defender but plaintiff failed to follow up on procuring the garment for Pistol.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Service & Support Animals
Date:
11/10/2023
Doe v. The Pa. State Univ. (M.D. Pa. Nov. 3, 2023)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former employee of the Nittany Lion Inn, which is owned by Penn State University, alleged that she became pregnant after she was sexually assaulted by a co-worker, who then harassed her, demanding she terminate the pregnancy. Plaintiff reported the harassment and requested to work different shifts than her alleged harasser. Her manager reduced the number of shifts they worked together and offered to transfer her from dishwashing shifts to housekeeping, but plaintiff quit, saying she felt she was being pushed out. She brought discrimination and retaliation claims against the University under Titles VII and IX. The court ruled that a reasonable juror could find that the alleged harassment was severe or pervasive. The court then permitted plaintiff’s discrimination claim under Title VII to proceed, finding a question as to whether the manager took sufficient measures to end the alleged harassment, but it granted summary judgment in favor of the University on her claim under Title IX, finding no juror could conclude that the manager was deliberately indifferent. It granted summary judgment to the University on plaintiff’s retaliation claims, finding no evidence to suggest that the proposed transfer was motivated by discriminatory animus.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
11/10/2023
Pepper v. Brown Univ. (D. R.I. Nov. 2, 2023)
Memorandum and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, pro se, a former food service employee at Brown University who was diagnosed with ADHD, which he asserted included sensitivity to sounds and hypervigilance, brought disability discrimination and retaliation claims against the University after he was fired for violently assaulting a co-worker. The co-worker admitted to managers that he had previously antagonized plaintiff by sneaking up on him and making loud noises. Prior to the unprovoked assault, the University admonished the co-worker, took steps to limit his interactions with plaintiff, and began a process to find plaintiff a new work location on campus. In granting summary judgment to the University on his hostile work environment claim, the court found that plaintiff offered no evidence of disability-based discriminatory animus, noting that the co-worked had no knowledge of plaintiff’s ADHD. Turning to his failure to accommodate claim, the court found that (1) plaintiff had produced insufficient evidence that his ADHD caused a substantial limitation of a major life activity; (2) he was not an otherwise qualified individual because compliance with the University’s Workplace Violence Policy was an essential job function; and (3) the University took steps to stop the inappropriate behavior and provided him with information on the accommodations process, but that plaintiff himself had not yet provided necessary documentation. Plaintiff’s retaliation claim failed because he provided no evidence of continued harassment after he initially complained to managers about the co-worker’s behavior.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | Retaliation
Date:
11/10/2023
Kilborn v. Amiridis, et al. (N.D. Ill. Nov. 1, 2023)
Opinion and Order granting-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of law at the University of Illinois, brought multiple claims, including First Amendment retaliation and tort claims, against multiple officials after he was sanctioned for harassment and creating fear of retaliation in response to student criticisms of his use of derogatory slurs in his employment law final exam hypothetical. The court dismissed plaintiff’s First Amendment retaliation claim for failure to allege speech on a matter of public concern, finding that (1) the use of epithets in the exam hypo added little to public discourse since “a student’s response to a written exam question remains limited to the professor grading the exam,” (2) conversations with individual students over email and Zoom about the hypo were nonpublic and reflected only his personal feeling of grievance over the controversy, and (3) transcripts of in-class discussions in which he used other language at issue in the investigation revealed that the language was used in discussions of topics unrelated to matters of public concern. The court declined to exercise supplemental jurisdiction over plaintiff’s state law claims, thus, terminating the federal case.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
11/10/2023
U.S. Dep.’t of Education Dear Colleague Letter on the Obligation to Address Discrimination, Including Harassment (Nov. 7, 2023)
U.S. Department of Education, Office of Civil Rights (OCR) Dear Colleague Letter (DCL) on the obligation under Title VI to address discrimination, including harassment, on campus. Noting “a nationwide rise in reports of hate crimes and harassment, including an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on college campuses,” the DCL reviews institutions’ obligations under Title VI and its implementing regulations to provide a learning environment that is free from discrimination, including harassment based on an individual’s actual or perceived “shared ancestry or ethnic characteristics” and “citizenship or residency in a country with a dominant religion or distinct religious identity.” The DCL also reiterates that harassment may create a hostile environment even if it is not directed at a particular individual.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination

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