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  • Date:

    Bhattacharya v. Murray (4th Cir. Feb. 26, 2024)

    Opinion affirming summary judgment in favor of the Defendants. Plaintiff, a former medical student at the University of Virginia who was diagnosed with bipolar disorder with psychosis, brought First Amendment retaliation and due process claims against the University after he was suspended for failures of professionalism and then issued a four-year no trespass order (NTO) for online harassment and threats against faculty members. In Fall 2018, a faculty member submitted a Professionalism Concern Card regarding a series of questions plaintiff posed to an American Medical Women’s Association panel on microaggressions. Plaintiff was then involuntarily hospitalized, first, for concerning behavior on the afternoon he received notice of the professionalism concern and, two days later, for threatening behavior directed against his mother. Subsequently, he posted pictures of members of the school’s Academic Standards and Achievement Committee online along with harassing messages. In affirming summary judgment in favor of the University on plaintiff’s First Amendment retaliation claim, a divided panel of the Fourth Circuit found that the evidence overwhelmingly pointed to his confrontational and threatening behavior, rather than his protected academic speech on microaggressions, as the basis of his suspension and disqualification as a medical student. The court also affirmed dismissal of plaintiff’s due process claims, noting that professionalism is an academic rather than disciplinary standard for the medical school and that plaintiff himself did not timely appeal the NTO.   

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | First Amendment & Free Speech | Retaliation

  • Date:

    Monroe v. Fort Valley State Univ. (11th Cir. Feb. 15, 2024)

    Opinion affirming dismissal. Plaintiff, a former director of the Head Start program at Fort Valley State University, brought False Claims Act retaliation claims against the University after she was terminated five months into her tenure for taking actions without properly vetting them with senior leadership. In affirming dismissal of the claims, the Eleventh Circuit, aligning with the other circuits to have addressed the issue, found that Congress did not abrogate sovereign immunity in the FCA’s anti-retaliation provisions and held that the Regents of the University System of Georgia function as an arm of the state in its administration of the Head Start program.   

    Topics:

    Discrimination, Accommodation, & Diversity | False Claims Act (FCA) | Research | Retaliation

  • Date:

    Fedder v. Bloomsburg Univ. of Pa. (M.D. Pa. Feb. 13, 2024)

    Memorandum Opinion denying Defendants’ Motion to Dismiss. Plaintiff, a former employee in the mailroom at Bloomsburg University of Pennsylvania who had worked at the University for over 20 years, brought discrimination and retaliation claims against the University and the Pennsylvania State System of Higher Education alleging that her supervisor engaged in a pattern of sexually suggestive and intimidating behavior, that after she twice complained to Human Resources and the Title IX Coordinator she faced increased harassment and was reprimanded, and that she was told she would be terminated if she did not improve the situation with him, which she asserted was constructive discharge. In permitting her discrimination claim to proceed, the court found plaintiff had plausibly alleged both a hostile work environment and circumstances suggesting she would not have been constructively discharged had she been a man. The court also permitted her retaliation claim to proceed, finding the close temporal proximity between her complaints and her only workplace discipline at the University sufficient to allege causation.

    Topics:

    Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Dai v. Le (5th Cir. Feb. 5, 2024)

    Opinion affirming summary judgment in favor of the defendants. Plaintiff, a former graduate student and graduate assistant at Louisiana Tech University, brought constitutional and contract claims against multiple University officials after she received negative feedback on a public presentation and a low grade in a related class, was terminated from her assistantship, and resigned from the program when she was unable to form a dissertation committee. In affirming summary judgment in favor of the defendants on her First Amendment retaliation claim, the Fifth Circuit rejected her assertion that an email she sent to those who had attended her presentation attempting to clarify her research methodology was a matter of public concern, finding that she offered no evidence of a widespread debate in the community on the topic. Turning to her due process claim, the court found that (1) her property interest in her assistantship was not unqualified because her offer letter provided it could be terminated early for unsatisfactory performance and (2) the dean provided sufficient process on her complaint over the termination by reviewing the materials she submitted, her paper, and presentation materials, and by speaking with faculty members before upholding the termination. In affirming the lower court’s decision on her contract claim, the court noted that the decision that plaintiff was not making satisfactory progress was an academic decision to be reviewed deferentially.   

    Topics:

    Academic Performance and Misconduct | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Students

  • Date:

    Davis v. Delta Coll. (E.D. Mich. Feb. 2, 2024)

    Order granting Defendants’ Motions for Summary Judgment. Plaintiff, a former tenured professor of English at Delta College who is African American, brought discrimination and retaliation claims against the College and its former president after the then-president cited low student evaluations in denying her application for promotion to full professor. Two years later, the new president re-evaluated plaintiff’s application and granted the promotion with retroactive back pay. Plaintiff subsequently resigned from the College to pursue a career in social work. In granting summary judgment to the defendants on her discrimination claim, the court held that plaintiff failed to show disparate treatment since her comparators all received higher student evaluations than she did. Her retaliation claim failed because her promotion denial occurred more than a year after she had delivered a unionization petition to the president.   

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

  • Date:

    Porter v. Bd. of Trs. of N.C. State Univ. (U.S. Jan. 22, 2024)

    Order denying petition for certiorari. Plaintiff, a tenured professor in the College of Education at North Carolina State University, brought First Amendment retaliation claims against the University, University officials, and multiple colleagues after he was removed from a student advising role in the program and assigned an additional course to teach due to his lack of collegiality in criticizing efforts to promote diversity, equity, and inclusion in the School and the field. Previously, the Fourth Circuit affirmed dismissal, finding that his comments to colleagues about department operations were unprotected and that he failed to establish a causal connection between a blog post attacking a professional association as “woke” and his removal, in part due to lack of temporal proximity. In its Order List, the Supreme Court denied certiorari without comment.   

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    Yao v. Oakland Univ. (6th Cir. Jan. 19, 2024) (unpub.)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor of nursing at Oakland University who is of Chinese national origin, brought discrimination and retaliation claims against the University after it cited her lack of peer-reviewed publications in denying her tenure. In affirming summary judgment in favor of the University on her discrimination claim, the Sixth Circuit found that plaintiff was not similarly situated to her closest comparator because the comparator had one published article and one designated at the “revise and resubmit” stage, whereas plaintiff only had one co-authored article published. In affirming summary judgment in favor of the University on her retaliation claim, the Sixth Circuit noted that plaintiff filed the claim she asserted as protected activity a month after the University notified her that her employment would end.   

    Topics:

    Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Retaliation | Tenure

  • Date:

    Daywalker v. UTMB at Galveston (5th Cir. Jan. 9, 2024)

    Opinion affirming summary judgment in favor of the Defendant. Plaintiff, a former resident at the University of Texas Medical Branch (UTMB), brought sex and race discrimination claims and an FMLA retaliation claim against UTMB after she was placed on a remediation program for “lapses in professional behavior” in clinical documentation and timeliness and told she would need to repeat her third year when she returned from a four-month FMLA leave of absence. In affirming summary judgment in favor of UTMB on her failure-to-promote claim, the Fifth Circuit found that (1) plaintiff’s one asserted comparator had no issues with accuracy or timeliness and was not similarly situated and (2) she was unable to overcome the documented concerns of numerous faculty members to establish pretext. It further held that the “handful” of offensive statements, which she alleged were made “over the span of a few years” were insufficient to raise a question of hostile work environment or constructive discharge. In affirming summary judgment on her FMLA retaliation claim, the court found that she was unable to establish causation because the decision that she should repeat her third year was taken between when she requested a “leave of absence” and when her counsel requested that leave be converted to protected FMLA leave. The court also held that the magistrate judge did not err during discovery in ordering the redaction of identifying information from potential comparator evidence because medical residents are also students for the purposes of FERPA.

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. (5th Cir. Jan. 8, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former administrative coordinator in the Division of Animal Care at Louisiana State University, brought discrimination and retaliation claims against the University, alleging that (1) one of the University’s veterinarians made various inappropriate comments leading up to an incident in which he slapped her on the buttocks and (2) the University retaliated against her after she reported this harassment by temporarily assigning her to office in a storage room. In affirming summary judgment in favor of the University with respect to the incident itself, the Fifth Circuit found that the University took prompt remedial action by separating the two, directing the veterinarian to have no contact with plaintiff, and opening an investigation eleven days later. The court also affirmed the finding that there was insufficient evidence the University had notice of on-going harassing behavior to sustain pre-incident harassment claims, noting that (1) when an intern reported feeling uncomfortable as a result of the veterinarian’s questions, the behavior stopped once the University moved the intern to a new location and (2) a faculty member who was aware of the veterinarian’s inappropriate comments was not plaintiff’s supervisor and did not have disciplinary authority over the veterinarian. Finally, the court affirmed dismissal of the retaliation claim, absent evidence that pretext animated the University’s decision to separate plaintiff from the veterinarian by relocating her office to the storage room. 

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Grisgorescu v. Bd. of Trs. of San Mateo Cnty. Cmty. Coll. Dist. (N.D. Cal. Jan. 2, 2024)

    Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former lab technician and adjunct professor at the College of San Mateo, brought First Amendment retaliation claims against the San Mateo Community College District and its Vice Chancellor for Human Resources (VCHR), who also served as legal counsel for the College, alleging that they harassed and ultimately terminated her in retaliation for her participation in community organizing and litigation opposing the College’s plan to replace a garden with a parking lot. Although plaintiff was ultimately terminated for abusing sick time to teach at another institution, an earlier termination decision based on her mischaracterization of her academic qualifications was reversed on appeal. Plaintiff also asserted that decisions not to permit her to participate in a mentorship program or to substitute for full-time professors were retaliatory harassment. The court granted summary judgment in favor of the VCHR with respect to plaintiff’s ultimate termination, finding that the Board of Trustees, as a state agency, functioned in a sufficiently judicial capacity in her termination appeal hearing to bar her retaliation claim under both claim and issue preclusion. It permitted her claims to proceed, however, with respect to the first termination process and alleged harassment, finding (1) sufficient temporal proximity to the VCHR’s representation of the College and the District in plaintiff’s prior litigation, and (2) his opposition to her protected activity by virtue of that representation.   

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

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