Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
9/22/2023
Jackson v. Wright (5th Cir. Sep. 15, 2023)
Opinion affirming denial of Defendants’ Motion to Dismiss. Plaintiff, a professor of music theory at the University of North Texas (UNT), is a leading scholar on the Austrian music theorist Heinrich Schenker. He is also director of the Center for Schenkerian Studies and founding editor of the Journal of Schenkerian Studies, both of which are housed at and supported by UNT. After plaintiff contributed an article that proved controversial to a symposium in the Journal defending Schenker against charges of racism, University officials investigated the Journal’s editorial practices, removed plaintiff as editor, and suspended the Journal’s activities pending a national search for a new editor. Plaintiff brought First Amendment retaliation claims against the UNT Regents in their individual capacities, alleging an ongoing violation of his First Amendment rights and seeking declaratory and injunctive relief. In affirming denial of the Regents’ Rule 12(b)(1) motion to dismiss, the Fifth Circuit held that plaintiff’s claim against the Regents properly sought only prospective relief and that he had sufficiently alleged an ongoing violation that was fairly traceable to the Regents.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
9/15/2023
Misenheimer v. Univ. of S.C. (D. S.C. Sep. 13, 2023)
Order granting-in-part and denying-in-part Defendants’ Motions for Summary Judgment. Plaintiff is a graduate of the School of Visual Arts and Design (SVAD) at the University of South Carolina, who then became a SVAD technician and adjunct instructor. She brought multiple claims against the University and a tenured colleague, who had also been her instructor, alleging that he created a hostile environment and retaliated against her after she complained about his behavior. In adopting the Report and Recommendation of the U.S. Magistrate Judge on the University’s motion for summary judgment, the court permitted plaintiff to proceed on her Title VII hostile work environment and retaliation claims, finding that evidence of plaintiff’s reports of harassing and retaliatory behavior by the colleague were sufficient to raise fact questions of a hostile environment and constructive discharge. The court also permitted her to proceed on her negligent supervision and retention and her contract claims with respect to the University’s enforcement of its policies. Her Title IX claims, however, were time-barred. In departing from a second Report and Recommendation on the colleague’s motion for summary judgment, the court permitted plaintiff to proceed on her tortious interference with a contract claim, finding sufficient evidence in the record suggesting that but for his behavior her contractual relationship with the University would have continued.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/15/2023
Gray v. Bd. of Trs. of the Ga. Military Coll. (M.D. Ga. Sep. 13, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Administrative Assistant at Georgia Military College, brought discrimination and retaliation claims against the College after her position was eliminated in June 2020 in a reduction in force (RIF), alleging that it eliminated her position because she had requested additional measures to mitigate the spread of the coronavirus due to her “underlying health conditions” and that it did not consider her for other open positions because she is African American. The court granted summary judgment to the College on her discrimination claim, finding that of the two positions plaintiff applied for one was filled by an African American and one remained unfilled for a year. In granting summary judgment to the College on her retaliation claim under the Rehabilitation Act, the court held that a “vague request for accommodations due to ‘underlying health conditions’” was insufficient to constitute protected activity.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Race and National Origin Discrimination | Retaliation
Date:
9/15/2023
Maramante v. Del. Tech. Cmty. Coll. (D. Del. Sep. 11, 2023)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a full-time 10-month science instructor and former Science Department Chair at Delaware Technical Community College who had taken FMLA leave to care for a son with a serious medical condition, brought FMLA interference and retaliation claims against the College after it rescinded her appointment as Department Chair upon her return from leave. The College cited that plaintiff had over-delegated her duties and attempted to have the Chair of the Medical Laboratory Technician Department conduct a blood draw from her son for medical testing. In adopting the Report and Recommendation of the magistrate judge, the Court agreed that there was (1) a factual dispute as to when the decision to demote plaintiff was made, and (2) a question of pretext raised by the fact that the other department chair, who had previously conducted blood draws from plaintiff, was not similarly investigated. Plaintiff conceded, however, that there is no evidence in the record to support her FMLA interference claim.
Topics:
Discrimination, Accommodation, & Diversity | Family and Medical Leave Act (FMLA) | Retaliation
Date:
9/15/2023
Maese-Thomason v. Embry-Riddle Aeronautical Univ. (D. Ariz. Sep. 8, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion for Partial Summary Judgment. After plaintiff, a former women’s softball coach at Embry-Riddle Aeronautical University, complained of discrimination by a supervisor, the University placed her on a Performance Improvement Plan and opened a Title IX investigation into allegations she intimidated student-athletes. When notified of the investigation, she disclosed a PTSD diagnosis to the investigator and requested her counselor support her during the interview. She then requested medical leave but asserted it would be better for her health if the investigation moved forward. When she was terminated at the end of her leave, she brought sex and disability discrimination and retaliation claims against the University. The court granted summary judgment to the University on her failure to accommodate claim, finding she had not objected when the University permitted her counselor to attend the interview but denied her request to hold the interview in the counselor’s office. It denied summary judgment on her ADA disparate treatment claim, noting that the University had cited her inability to coach while on leave as a reason for her termination. In addition to permitting plaintiff to proceed on her discrimination and retaliation claims regarding the investigation itself, it also permitted her to proceed (1) on her Title VII retaliation claim regarding the University’s decision to “pause” the investigation after her attorney challenged the process, and (2) on her ADA retaliation claim related to the investigator’s suggestion that her PTSD diagnosis might be disclosed in the investigative report.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/8/2023
Univ. of Houston v. Sheppard (Tex. App. Aug. 31, 2023)
Memorandum Opinion reversing and rendering judgment in favor of the University. Plaintiff, a former employee at the University of Houston’s College of Medicine, brought retaliation claims against the University after she was disciplined and then terminated for repeated performance issues and lack of professionalism. Plaintiff alleged her discipline and termination were in retaliation for filing an EEOC charge of discrimination and retaliation. The trial court denied the University’s plea to the jurisdiction. In reversing and dismissing her claim, the Court of Appeals of Texas held that her prima facie case failed (1) for lack of evidence that her supervisors knew of her EEOC charge and (2) because over four months passed between her last internal complaint and her termination. The court also held that she failed to establish pretext because she presented no evidence to rebut the University’s documentation of multiple deficiencies in her performance.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
9/8/2023
Lax v. The City Univ. of N.Y. (N.Y. Sup. Ct. Aug. 11, 2023)
Opinion granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiffs, five observant Jewish professors at Kingsborough Community College (Kingsborough) of the City University of New York (CUNY), brought discrimination and retaliation claims against CUNY, the Professional Staff Congress (PSC) union, the New Caucus of the PSC, and multiple individual professors. Plaintiffs alleged that the professor defendants subjected them to a hostile work environment, conspired to exclude Jewish applicants from a New Caucus-aligned group at Kingsborough called the Progressive Faculty Caucus, and sought their removal from their jobs. They further alleged that CUNY did not take adequate corrective action. In denying CUNY’s motion to dismiss the hostile work environment claims, the court found plaintiffs had sufficiently alleged that CUNY’s response to the allegations was inconsistent with findings documented in an investigative report completed by outside counsel. Turning to the retaliation claims, the court also found that plaintiffs had sufficiently alleged that critical statements by the Kingsborough President and a delay of over a year in replacing Kingsborough’s chief diversity officer were reasonably likely to deter a person from engaging in protected activity.
Topics:
Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation | Retaliation
Date:
8/25/2023
Sagers v. Arizona State Univ. (D. Ariz. Aug. 14, 2023)
Order granting Defendants’ Motion for Summary Judgment. Plaintiff is a tenured professor and former vice president of research at Arizona State University who was hired in the administrative role to increase research funding. She brought discrimination and retaliation claims against the University and her former supervisor after her administrative contract was not renewed due to a downturn in funding proposals and complaints that she had a negative management style. Plaintiff alleged that she raised concerns that her supervisor created a culture of fear and intimidation among female employees and engaged in gender discrimination. Plaintiff’s discrimination claims failed because (1) vague assertions that her supervisor also had complaints about his management style that did not result in his demotion did not establish him as an adequate comparator, and (2) criticisms of the performance metrics the University used in evaluating her development of funding proposals did not show that the use of those metrics was pretextual. Finally, the court rejected her retaliation claim since it found that while her opposition to alleged gender discrimination was protected activity, she failed to identify evidence that her supervisor was aware of that activity.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
8/25/2023
Wang v. Univ. of Pittsburgh (W.D. Pa. Aug. 22, 2023)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss Plaintiff’s Fourth Amended Complaint. Plaintiff, a cardiologist at the University of Pittsburgh Medical School and the University of Pittsburgh Medical Center (UPMC) and a former director of the joint clinical cardiac electrophysiology fellowship program of the University and UPMC, alleged under Title VII that the University, UPMC, and three officials retaliated against him by removing him as director of the fellowship program and barring him from interacting with fellows and residents after he published an article critical of the use of race and ethnic factors in admissions in medical schools, residency programs, and fellowship programs. The court dismissed plaintiff’s assertion that the March 2020 publication of his article was protected activity under Title VII, finding that it was a general complaint about the industry and did not specifically address practices at the University or UPMC. It permitted him to proceed, however, regarding statements he made in a July 2020 meeting with University and UPMC officials in which he raised his concerns that their admissions practices might be contrary to law.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
8/18/2023
Pfang v. Lamar Inst. of Tech. (E.D. Tex. Aug. 5, 2023)
Memorandum and Order denying Defendant’s Partial Motion to Dismiss. Plaintiff, a former Associate Vice President at Lamar Institute of Technology who is of Chinese descent, brought discrimination, hostile work environment, and retaliation claims against the Institute after he was terminated for not following protocols in responding to an accident in the Institute’s truck driver training program. Plaintiff alleged that he experienced various forms of retaliation after he attempted to discipline one of his direct reports for alleged crude and unprofessional behavior. He also alleged that he requested that the “matter be referred to the Chancellor’s Office to be investigated fairly, without racial prejudice,” noting that both his supervisors and his direct report were “of the same race.” The court permitted his disparate treatment claim to proceed, finding that he had sufficiently alleged that he was treated differently from other members of the President’s Executive Team who were not Asian. It also permitted his hostile work environment claim to proceed, finding he had sufficiently alleged a coordinated effort to call meetings in order to criticize him in front of other members of the Executive Team.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

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