Cases & Developments - National Association of College and University Attorneys

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Date:
7/21/2023
Corbett v. Tex. Tech. Univ. Health Scis. Ctr. (N.D. Tex. July 10, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student in the Texas Tech University Health Sciences Center’s Anesthesiology Residency Program, brought discrimination and retaliation claims against the Center after she failed the American Board of Anesthesiology (ABA) Basic Exam four times and was dismissed from the program. Plaintiff’s discrimination claim failed because her repeated failures on the ABA Exam prevented her from showing she was qualified for the position and because she identified no comparator who had failed as many times and was treated differently. Her retaliation claim similarly failed because she presented no evidence to show that anything other than her failures on the ABA Exam were the cause of her dismissal. The court permitted her hostile work environment claim to proceed, however, holding that plaintiff’s testimony that the Program Director made comments that he did not want women in the program on “at least 10 to 15 occasions” was sufficient to present a triable question as to whether the comments affected the conditions of her employment.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment | Students
Date:
7/21/2023
Beny v. Univ. of Mich. (E.D. Mich. July 7, 2023)
Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of law at the University of Michigan Law School who is African American and has been a critic of what she perceived as inequitable practices, brought discrimination and retaliation claims against the University and the Law School’s Dean after she was suspended from teaching and made ineligible for various benefits pursuant to a finding that she had abandoned her duties and retaliated against students. She alleged her advocacy made her a target for increased monitoring that culminated in an accusation of retaliation when she addressed anonymous complaints during a class session. She then emailed students that she could no longer teach the class and took medical leave, citing work-related psychological injury. Plaintiff’s discrimination and hostile work environment claims failed because the limited factual allegations that fell within the statutory period were insufficiently related to her race, sex, or family status. The court, however, permitted her to proceed on her Title VII retaliation claim against the University and her state-law retaliation claim against the Dean, finding she had sufficiently pled adverse employment actions in close temporal proximity to her complaints of discrimination and retaliation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
7/21/2023
O’Brien v. The Regents of the Univ. of Cal. (Cal. App. June 29, 2023)
Opinion affirming denial of a Writ of Mandate. Plaintiff, a professor at the University of California, Berkeley who was censured and suspended for a year in 2020 related to an allegation that he sexually harassed a graduate student from another institution, at an overseas conference in 2012, sought a writ of mandate setting the sanction aside, asserting multiple procedural violations. In affirming denial, the California Court of Appeals first held that the University’s three-year rule on disciplinary proceedings was not triggered by a 2014 complaint that lacked sufficient allegations to warrant an investigation but was triggered in 2017 when the graduate student submitted a complaint. The court then affirmed the Privilege and Tenure Committee’s interpretation of the Faculty Code of Conduct that held that the prohibition on discrimination against or harassment of a “colleague” included a graduate student from another institution attending an overseas conference. Finally, the court also held that plaintiff failed to show that the sanction was unsupported by the evidence in the record or was the result of an unfair proceeding.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
7/14/2023
Denham v. Ala. State Univ. (M.D. Ala. June 28, 2023)
Opinion & Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former professor of Occupational Therapy at Alabama State University who is a White female, brought discrimination claims against the University after she was not hired for an Associate Dean position. In granting summary judgment to the University, the court first held that plaintiff’s assertion that the successful candidate was unqualified for the position did not establish pretext, noting that although he had only one year of teaching experience the University’s faculty handbook permitted it to hire a candidate with less than five years of teaching experience at the rank of Associate Professor if that individual was deemed to have sufficient experience in a relevant field. The court further held that her assertion that the Provost’s explanation that the successful candidate “brought a lot of energy” to the interview also did not establish pretext, noting that the Provost also explained that he “spoke with ‘passion,’ particularly with respect to the role he could play as Associate Dean,” while plaintiff’s answer to why she wanted the position was “why not apply?”
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Sex Discrimination | Sex Discrimination in Employment
Date:
7/14/2023
Ohio State Univ. v. Snyder-Hill (U.S. June 26, 2023)
Order denying petition for certiorari. Plaintiffs, who alleged they were among hundreds of male student-athletes at Ohio State University who were sexually abused over a period of many years beginning in 1978 by one-time athletic team doctor and university physician, brought Title IX claims against the University alleging that it was deliberately indifferent to the risk of the doctor’s abuse. Plaintiffs assert that the University forced the doctor to retire in 1998 but did not reveal the allegations against him. They further assert that when the doctor set up private practice near campus and advertised in the student newspaper, the University did not act to substantiate numerous additional complaints until 2018. The district court dismissed plaintiffs’ claims as time-barred, but the Sixth Circuit reversed and remanded, holding they had plausibly alleged sufficient grounds to delay accrual. In its June 26, 2023 Order List, the Supreme Court denied certiorari.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
6/23/2023
Kinnin v. Skidmore Coll. (2nd Cir. June 20, 2023)
Order affirming summary judgment in favor of the University. Plaintiff, a former Director of User Services in the IT Department at Skidmore College, alleged discrimination and retaliation after she was terminated following a series of conflicts with colleagues, in part memorialized in an investigative report that found she had “a history of subjecting certain of her employees to her wrath for unknown reasons.” The Second Circuit affirmed summary judgment in favor of the College, finding that she identified no evidence to show that the report or the Vice President’s decision to terminate her for poor performance and poor management were motivated by discriminatory animus.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
6/16/2023
Oldham v. Univ. of N.C. (M.D. N.C. June 13, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff is a former volunteer assistant fencing coach at the University of North Carolina (UNC). In December 2017, she was sexually assaulted on a commercial flight by a fencing coach from another university. A SafeSport investigation found him responsible, which resulted in his suspension by USA Fencing and his termination from his coaching job. In April 2019, plaintiff applied for a position as head fencing coach at UNC, but she was not hired. When she learned from the SafeSport investigative report that coaches at both UNC and the other university had made disparaging remarks about her during the investigation, she brought Title IX discrimination and retaliation claims against UNC, alleging that UNC declined to hire her either because of impermissible sex discrimination or because of protected conduct related to the underlying sexual assault investigation. The court dismissed most of plaintiff’s claims as time-barred, noting that the claims accrued when she discovered the injury, rather than when she discovered the elements of the claim. It permitted her to proceed, however, on the limited basis of retaliatory events that might have taken place within the three-year limitations period.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
6/9/2023
AlSayyad v. Regents of the Univ. of Cal. (Cal. App. June 7, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former professor at the University of California, Berkeley, brought discrimination claims against the University after he was suspended for three years for sexually harassing a graduate student. The faculty Privilege and Tenure Committee recommended a one-year suspension and sensitivity training, finding a “momentary overstep” when he touched the student’s leg. The Chancellor, however, imposed a three-year suspension, finding instead a pattern of harassment and unprofessional behavior. Affirming summary judgment in favor of the University, the California Court of Appeals held that the Chancellor presented a legitimate nondiscriminatory reason for the more severe sanction and that plaintiff presented no evidence showing that this reason was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Race and National Origin Discrimination | Sex Discrimination | Sexual Misconduct
Date:
6/9/2023
Pogorzelska v. VanderCook Coll. of Music (N.D. Ill. June 5, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at VanderCook College of Music, brought Title IX claims against the College, alleging that it exhibited deliberate indifference to her reports of off-campus sexual assault and subsequent on-campus harassment and that it retaliated against her for making the reports. The court permitted plaintiff to proceed on her deliberate indifference claim as to the assault, finding that a jury could conclude from email correspondence and disputed statements in the record that College investigators believed the respondent had committed the assault but unreasonably imposed limited sanctions in hopes of promoting a “healing process.” It also permitted her to proceed on her deliberate indifference claim as to the subsequent harassment, finding triable issues of fact as to (1) whether two incidents constituted harassment and (2) whether the College’s decision not to adjust or further enforce its no-contact order was clearly unreasonable. It granted summary judgment to the College, however, on plaintiff’s retaliation claims, finding insufficient evidence of materially adverse actions that were caused by plaintiff’s reports.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sexual Misconduct | Students | Title IX & Student Sexual Misconduct
Date:
6/9/2023
Foley v. Drexel Univ. (E.D. Pa. June 1, 2023)
Memorandum granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of philosophy at Drexel University, brought hostile work environment and retaliation claims against the University and the chair of the Department of English and Philosophy alleging “a plethora of acts that she contends show discrimination based on sex and retaliation for the majority of her time at Drexel, between 2009 and 2022.” The court deemed some of plaintiff’s claims time-barred, to the extent that they were discrete and actionable events that occurred outside of the limitations period. It permitted plaintiff to proceed under the theory of continuing violation, however, as to allegations that “do not appear to be actionable, discrete discriminatory acts,” such as “sabotage” of dinners with visiting scholars, a requirement that she seek permission from a male adjunct professor to teach a course, and disagreements about administrative matters.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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