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  • Date:

    Roland v. Donnelly Coll. (D. Kan. Feb. 20, 2025)

    Order granting in part and denying in part Donnelly College’s (“the College”) partial motion to dismiss. Plaintiff is a former nursing student at the College who asserts claims for alleged violations of Title IX, Section 504 of the Rehabilitation Act, equal protection, and due process, as well as a state law claim for tortious interference with a contract against an individually named College professor. Plaintiff alleges that an unnamed professor referred to her test anxiety as “dumb” and sues the second professor who she claims “grabbed, [] squeezed, … and rubbed his hand up and down her leg” and “placed his hand on her thigh” on one occasion and rubbed his body against hers on another. She also alleges the second professor made threatening remarks in class, including that “if anyone wanted to report him, it would not go well because of his status” with the College, that he could make complaints against him “go away,” and that “[i]f anyone wants to do anything to me, I have guns,” as well as disparaging remarks, such as“[w]omen don’t learn well, and learn better if I piss them off.” She asserts that she tried to meet with the College’s Director of Nursing to discuss her concerns but was rebuffed. Then, during final exams, the second professor allegedly sat behind Plaintiff, “leaned forward, and whispered, ‘You gonna wish you gave me some of that pussy,’” and then, failed her on the exam, which she asserts she would have otherwise passed had it been graded fairly. Subsequently, the College placed Plaintiff on academic probation and suspension, which delayed her graduation and required that she attend an extra semester during which she was once more placed into the second professor’s class and subjected to additional alleged harassment, including commenting on her hair, nearly grazing her breast, and repeatedly touching her leg. Ultimately, she withdrew from the nursing program. Defendants moved to dismiss all claims except her §1983 claims. The court declined to dismiss the Title IX sex discrimination claim, reasoning Plaintiff had provided sufficient allegations to maintain a claim that she was subject to sex-based harassment, including by receiving lowered grades based on her refusal of a professor’s advances. It rejected as irrelevant the College’s concern that Plaintiff failed to identify a male student who was treated more favorably, “particularly when it is not at all clear that plaintiff intends to pursue a ‘selective enforcement’ theory of liability.” However, it granted the motion to dismiss her sexual harassment and retaliation claims against the College since beyond seeking an unspecified meeting with the Director of Nursing, Plaintiff failed to allege that she “engaged in protected activity or, even assuming that she did, that any College official had knowledge that plaintiff had engaged in protected activity” and correspondingly, College officials lacked knowledge regarding the professor’s alleged harassment. Finally, the court granted dismissal of the disability discrimination claim reasoning that her allegations supported that her exam grades were altered “not based on any perceived disability but in retribution for [her] response to defendant[’s] alleged sexual advance,” and because the sole comment regarding her test anxiety was made after she was advised that she was not meeting academic standards.  

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity | Sex Discrimination | Students | Title IX & Student Sexual Misconduct

  • Date:

    Szeto v. Univ. of Colo. (D. Colo. Feb 19, 2025)

    Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a student in the University of Colorado’s (“University”) Medical Scientist Training Program (“MSTP”), alleged Title IX retaliation based on her dismissal from the Graduate school, Title IX retaliation based on her dismissal from the Medical school and referral to the Colorado Physicians Health Program (“CPHP”), and violation of Title II of the ADA. Plaintiff also alleged a §1983 claim against her lab professor for violation of her First Amendment rights. Plaintiff’s claims are centered around her failure to complete certain standards and examinations for the MSTP program. The court concluded that the University was entitled to summary judgment on both of Plaintiff’s retaliation claims. For Plaintiff’s retaliation claim centered around her dismissal from the Graduate School, the court found that Plaintiff “failed to demonstrate a causal connection between protected activity and her dismissal from the Graduate School.” Additionally, the court found that Plaintiff’s Title IX retaliation claim based on the CPHP referral and subsequent dismissal from the Medical School must also fail because Plaintiff failed to show that the CPHP referral was a materially adverse action. The court noted that even if Plaintiff had been able to show a materially adverse action, she was unable to demonstrate a causal connection between “her protected activity and her dismissal from the Medical School.” Turning to Plaintiff’s ADA claim, the court found that she was unable to demonstrate a “triable issue as to whether the University regarded her as disabled or referred her to the CPHP because of a perceived disability….” Finally, the court found that Plaintiff’s lab professor was also entitled to summary judgment on her §1983 claim. The court further noted that at no point did Plaintiff demonstrate an issue of material fact as to whether her professor was “substantially motivated” to resign as Plaintiff’s thesis advisor and subsequently remove her from the lab because of Plaintiff’s allegations against the MSTP director or Plaintiff’s complaints about the professor’s authorship practices. 

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination

  • Date:

    Protecting Children from Chemical and Surgical Mutilation (Jan. 28, 2025)

    Executive Order: “Protecting Children from Chemical and Surgical Mutilation.” This Executive Order directs that “it is the policy of the United States that it will not fund, sponsor, promote, assist, or support the … ‘transition’ of a child from one sex to another” and that the Federal government “will rigorously enforce all laws that prohibit or limit these … life-altering procedures.” The EO (1) denounces the World Professional Association for Transgender Health’s “Standards of Care Version 8” guidelines for gender-affirming care for minors; (2) directs the Secretary of Health and Human Services (HHS) to both “publish a review of the existing literature on best practices for promoting the health of children” and “withdraw HHS’s March 2, 2022, guidance document titled ‘HHS Notice and Guidance on Gender Affirming Care, Civil Rights and Patient Privacy;’” and (3) instructs “[t]he head of each executive department or agency [] that provides research or education grants to medical institutions, including medical schools and hospitals, shall, consistent with applicable law and in coordination with the Director of the Office of Management and Budget, immediately take appropriate steps to ensure that institutions receiving Federal research or education grants end the chemical and surgical mutilation of children.” 

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Benefits | Faculty & Staff | Gender Identity & Sexual Orientation Discrimination | Health Care & Insurance | Sex Discrimination

  • Date:

    Terrell v. Ala. State Univ. (11th Cir. Dec. 3, 2024) (unpub.)

    Per Curium opinion affirming in part and vacating and remanding in part. Plaintiff, a female former Senior Associate Athletic Director of Internal Operations at Alabama State University, brought pay discrimination and retaliation claims against the University after a new Athletic Director eliminated her position in favor of a new Senior Associate Athletic Director/Chief of Staff role for which one of the AD’s former direct reports was hired. Plaintiff was also designated as the Senior Woman Administrator, though she did not receive the additional compensation the University had earmarked in its budget for the role. The district court granted summary judgment to the University finding that plaintiff failed to identify proper comparators regarding her Equal Pay Act (EPA) claim, and further found her challenges to the wisdom of the University’s proposed reorganization and budget process fell short of raising questions of pretext regarding her retaliation and Title IX discrimination claims. The Eleventh Circuit conducted a de novo review and affirmed the district court’s judgment regarding plaintiff’s Title IX retaliation claims but vacated and remanded the EPA and Clarke-Figures Equal Pay Act (CFEPA) sex discrimination claims in light of its recent clarification of the analytical framework for EPA claims in Baker v. Upson Reg’l Med. Ctr., (11th Cir. 2024). In Baker, the Eleventh Circuit held that claims of sex discrimination under the EPA are analyzed under a two-step framework, requiring plaintiff to demonstrate “that an employer pays different wages to employees of opposite sexes ‘for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” The burden then shifts to the employer, to demonstrate that the difference in pay is justified by one of the EPA’s four exceptions: “(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any factor other than sex” (internal quotes omitted). Thus, the Eleventh Circuit remanded plaintiff’s sex discrimination claims under the EPA and CFEPA requiring the district court to apply the Baker test.

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination

  • Date:

    U.S. Dep’t of Education Office for Civil Rights Releases Guidance for Avoiding Discriminatory Use of Artificial Intelligence (Nov. 19, 2024)

    The U.S. Department of Education (the Department) published guidance for avoiding discriminatory use of artificial intelligence. The resource was published in response to Executive Order 14110: Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, and provides information on the legal analyses the Office for Civil Rights (OCR) uses to determine whether discrimination exists and various examples of conduct that could constitute discrimination. The resource explores the role of AI in race, color, or national origin discrimination, sex discrimination, disability discrimination, and multiple bases of discrimination. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act | Disability Discrimination | Discrimination, Accommodation, & Diversity | Higher Education Act (HEA) | Race and National Origin Discrimination | Sex Discrimination

  • Date:

    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:

    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:

    Deiter v. Tenn. Tech. Univ. (M.D. Tenn. Oct. 11, 2024)

    Memorandum Opinion denying Defendant’s Motion for Summary Judgment. Plaintiff, a tenured Associate Professor at Tennessee Technological University brought Title VII claims alleging employment sex discrimination following denial of a promotion from Associate Professor to Full Professor. Plaintiff applied for promotion in the fall of 2020. She received a majority vote recommending her for the promotion from the English Department, as well as a recommendation from the interim chair of the department, and the Dean of the College of Arts and Sciences. The Provost recommended against plaintiff’s promotion, reasoning that “there is not adequate documented evidence to satisfy the [University] Policy criteria,” specifically in reference to plaintiff’s scholarship. Following the Provost’s recommendation, the President of the University ultimately denied her application, wrote that plaintiff’s teaching, service, and outreach category was sufficient for promotion, but that the quantity and frequency of her scholarship – two published scholarly articles and a book review over her five-year tenure at the University – was concerning. Plaintiff wrote. Plaintiff appealed to the Faculty Affairs Committee, which found procedural errors in the Provost’s review and unanimously voted to recommend the Provost’s denial be overturned and plaintiff be promoted. Notwithstanding, the President rejected the recommendation from the Faculty Affairs Committee. At the same time, plaintiff alleged two of her male colleagues with fewer achievements were promoted. The court found plaintiff sufficiently demonstrated she was qualified for promotion, citing the University’s President’s statement that her teaching, service, and outreach record was sufficient for promotion. Further, while the President and Provost seemed to rest their decision on plaintiff’s scholarship, the University policy contained no publication quota for the scholarship portion of the promotion criteria. Finally, the court found plaintiff sufficiently presented evidence to establish her male colleagues were (1) not members of the protected class due to their gender; and (2) similarly-situated to plaintiff as they sought the same promotion, during the same timeframe, within the same department, subject to the same policies and ultimate decision maker (the University President), obtained the same peer support, and were “weak in scholarship.”

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination

  • Date:

    Vengalattore v. Cornell Univ. (N.D. N.Y. Sep. 10, 2024)

    Decision and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track Assistant Professor at Cornell University, brought Title IX, Title VI (national origin), and defamation claims against the University based on alleged flaws in an investigation that resulted in a finding that the plaintiff had violated the University’s Policy on Romantic and Sexual Relations Between Students and Staff. In allowing plaintiff’s Title IX claims to proceed, the court categorized plaintiff’s claim as one for “erroneous outcome” finding that there were disputes of material fact regarding if the University departed from proper procedure in application of timelines within its investigatory process; if the failure to interview additional witnesses identified by plaintiff rose to the level of evidentiary infirmities in the University’s findings; and in maintenance of confidentiality between the misconduct and tenure review processes. The court allowed plaintiff’s gender bias claims to proceed given the evidence alleged an “atmosphere of public pressure” and suggested that a reasonable jury could infer anti-male gender bias from the combined alleged procedural irregularities and external pressure to correct perceived tolerance of sexual misconduct. The court dismissed plaintiff’s defamation claim finding that he himself published the alleged defamatory content when he publicly filed a petition seeking review of his denial of tenure under New York’s Article 78.  

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Sex Discrimination | Students | Tenure | Title IX & Student Sexual Misconduct

  • Date:

    Doe v. Franklin & Marshall Coll. (E.D. Pa. Aug. 26, 2024)

    Opinion granting in part and denying in part Defendant’s Motion for Summary Judgment. Plaintiff, a former undergraduate student and baseball player at Franklin and Marshall College brought contract and Title IX claims against the College related to his differential experiences as a respondent to, and a complainant in, a pair of sexual misconduct complaints. In spring 2022, while attending an away game on behalf of the College, plaintiff was arrested for sexual battery of a minor. The College initiated a Title IX investigation, in which plaintiff declined to participate pending the outcome of his criminal case. After initially granting an extension for the conduct meeting, the College proceeded in plaintiff’s absence and found him responsible for violation of its sexual misconduct policy. Later, the criminal court issued a “No Bill” as to the sexual battery charge that plaintiff attached to his appeal to the College, and while the underlying finding of a policy violation was affirmed, the College shortened plaintiff’s suspension. During the same semester, plaintiff received emails from a professor sent through her private, non-College email account. Plaintiff’s father reported the harassment, the College investigated, and the professor was terminated. The court granted summary judgment on plaintiff’s Title IX claims, finding relevant factual distinctions, rather than gender bias or deliberate indifference, animated the differential procedural cadence between the two investigations. First, the court reasoned that a female student arrested for arson was “so [factually] different that she is not a useful comparator,” and the professor was also “not a valid comparator because a professor and an undergraduate student hold … different roles” (internal quotations omitted). Next, the court found that delays attributable to plaintiff’s decision not to initiate a formal complaint against the professor and refusal to participate in the investigation, and due to the professor’s voluntary medical leave did not suggest deliberate indifference by the College. Finally, the court reasoned found that plaintiff presented no evidence that he was prejudiced by the slower pace of the second investigation as he was already suspended from the prior investigation. The court denied summary judgment on the contract claim, finding a factual dispute as to whether plaintiff was provided a “fair and equitable process” when he forewent participation in the first misconduct hearing to avoid forgoing his Fifth Amendment rights in the pending criminal litigation.

    Topics:

    Discrimination, Accommodation, & Diversity | Sex Discrimination | Students | Title IX & Student Sexual Misconduct

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