Cases & Developments - National Association of College and University Attorneys

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Date:
10/13/2023
Doe v. Rowan Univ. (D. N.J. Oct. 10, 2023)
Opinion denying Plaintiff’s Motion for a Temporary Restraining Order. Plaintiff, a former graduate student at Rowan University, brought Title IX discrimination and retaliation claims against the University and a former professor after she twice failed required qualifying exams and was dismissed from the program. Plaintiff had previously failed a first-year research project and her master’s thesis defense. While the appeal of her dismissal was pending, she filed a Title IX complaint with the University, alleging that the professor, who was also a grader for the qualifying exams, had made unwanted advances two years earlier. In denying plaintiff’s motion for a temporary restraining order, the court found that she was unlikely to succeed on her discrimination claim since the University had her exam blindly re-scored by two new graders after she filed her Title IX complaint. It ruled she was unlikely to succeed on her Title IX retaliation claim due to the weak nexus between her rejection of the alleged advances and the program’s acts of placing her on academic probation and seeking to dismiss her, which both took place more than a year later.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination | Students
Date:
10/13/2023
Aslani v. Bd. of Trs. of the Univ. of Ill. (N.D. Ill. Oct. 6, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former student at the University of Illinois College of Medicine, brought Title IX and retaliation claims against the University after it dismissed her for unprofessional conduct related to two clinical clerkships. She received a grade of “unsatisfactory” for the first following multiple complaints about her behavior. The second followed a self-designed “coursework letter” under the supervision of a mentor not affiliated with the University. At the clerkship’s end, the mentor declined to complete the registrar’s evaluation, citing that he had never seen the coursework letter and plaintiff was not present in his office during the time outlined in the letter. Plaintiff, who created an email account in the mentor’s name to submit the coursework letter, asserted that she had actually completed the clerkship months earlier, that the mentor had harassed her sexually, and that her mother had left a voice message at the time with the University’s Office of Access and Equity to that effect. In granting summary judgment to the University on plaintiff’s Title IX claim, the court found that the University did not have substantial control over either the alleged harasser or the location of harassment. In dismissing her retaliation claim, the court further found that multiple instances of “‘unprofessional conduct’ interrupted any causal nexus between [her mother’s voice message] and the adverse action” and that plaintiff had offered no other evidence suggesting pretext.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Retaliation | Sex Discrimination | Students
Date:
10/13/2023
Mitchell v. The Ohio State Univ. (S.D. Ohio Oct. 6, 2023)
Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former non-tenured clinical professor in an executive education program in the Fischer College of Business (FCB) at The Ohio State University who also owned a private consulting company, brought a discrimination claim against the University after she was terminated for violations of its Conflicts of Interest policies. The termination occurred following an investigation found that she provided training services to a government agency with which FCB had developed a customized executive education program. Plaintiff identified five comparators within FCB who had each provided similar independent consulting services but had not likewise faced investigation. In denying the University’s motion for summary judgment, the court ruled that whether the comparators’ conduct was distinguishable from plaintiff’s and whether the University lacked sufficient notice of the comparators’ activities to motivate investigation were properly questions for a jury. It also found that testimony that the University had resolved similar situations informally and conflicting testimony regarding the Dean’s involvement with directing the investigation were sufficient to raise jury questions as to pretext.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Powell v. Doane Univ. (D. Neb. Oct. 3, 2023)
Memorandum and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former women’s basketball head coach at Doane University, brought sex discrimination and retaliation claims against the University after it terminated her employment when both of her assistant coaches quit mid-season and multiple players complained of abusive and erratic behavior. In granting summary judgment to the University on her discrimination claim, the court found that one comment made by the Athletic Director referring to the disputes as a “female thing” was insufficient to raise a genuine issue of pretext. The court granted summary judgment to the University on plaintiff’s retaliation claim, finding her complaints to her student-athletes about their uniforms and other alleged disparities were insufficient to give the University actual notice of discrimination under Title IX or to constitute reports of discriminatory employment practices under Title VII.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Sacks v. Tex. S. Univ. (5th Cir. Oct. 3, 2023)
Opinion affirming dismissal. Plaintiff, a former professor of law at Texas Southern University, brought discrimination and retaliation claims against the school and multiple employees after she resigned alleging constructive discharge and retaliation after she filed a similar suit two years before. In affirming dismissal of plaintiff’s Title VII constructive discharge claim, the Fifth Circuit held that, even if “menial,” curricular changes, “extra faculty meetings,” and mandates of “new methods of attendance recording” were insufficient to allege factors that would make a reasonable person feel compelled to resign. Her retaliation claims failed because she had not alleged sufficient facts to show that her prior suit was the cause of new mandates and procedures in the law school. Finally, the court also dismissed her claims under §1983 against a colleague who “threw her hair into [plaintiff’s] face in the law school lobby” and yelled at her in a church parking lot, finding that these allegations indicated a personal conflict rather than action under color of law.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Lowery v. Tex. A&M Univ. Sys. (S.D. Tex. Sep. 29, 2023)
Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiff, a tenured professor at the University of Texas, brought claims against Texas A&M University, alleging that it discriminates against white and Asian male applicants because it allegedly reserved positions for underrepresented minority candidates in job searches, maintained a faculty fellows program that promotes diversity, and the faculty senate adopted a resolution supporting the goal of promoting diversity. Plaintiff, however, had not yet applied for a position at Texas A&M. In dismissing plaintiff’s claims, the court found that (1) he lacked standing because he had not applied for a position; (2) his case is moot in light of subsequent legal developments, including the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the passage of SB 17 concerning diversity-and-inclusion initiatives at public universities in Texas; and (3) his claims would not be ripe before SB 17 takes effect.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Sex Discrimination | Sex Discrimination in Employment
Date:
9/29/2023
Bird v. Bd. of Regents of the Univ. Sys. of Ga. (M.D. Ga. Sep. 26, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former University Dual Enrollment Director, brought Title VII and IX claims for a sexually hostile work environment and retaliation, as well as claims under Georgia’s Whistleblower Act. Plaintiff alleged that after she refused a hug from her supervisor in February of 2019, she was subject to a written reprimand, and her position was pretextually eliminated through a Reduction in Force (RIF) in November of 2020. The University asserted that plaintiff was reprimanded for sending a controversial programmatic email to external constituents, which upset University business partners and required presidential involvement to resolve, and that her position was eliminated due to COVID-era cost saving efforts at a period with low programmatic enrollment. In granting summary judgment to the University the court found that a single hug was insufficiently severe and/or pervasive, that the reprimand was not materially adverse as it resulted in no reduction in compensation, and that even if the latter were adverse that there was no casual between either the reprimand or the RIF, since plaintiff did not file an internal complaint until after she received notice of the RIF in July of 2020. The court declined to exercise pendant jurisdiction over the Whistleblower claim.
Topics:
Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/29/2023
Richardson v. Nw. Univ. (N.D. Ill. Sep. 21, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Partial Motions to Dismiss. Plaintiff, a former member of the cheerleading team at Northwestern University, brought Title IX, forced labor, forced-labor trafficking, sex trafficking, contract, and intentional infliction of emotional distress claims against the University, athletics officials, and a deputy Title IX Coordinator, alleging that officials required female – but not male – cheerleaders to attend various fundraising events in their cheerleading uniforms where they knew the students would experience sexual harassment and assaults. The court permitted her forced labor and trafficking claims to proceed, finding that officials knew or should have known of the likely harassment and inappropriate touching when they planned events that (1) female cheerleaders would be required to attend in uniform, (2) the University benefitted financially, and (3) the prospect that the student might have to repay her scholarship and expenses related to cheerleading events if she left the team functioned sufficiently as a threat of harm. It also held that the allegation that plaintiff was “intentionally and repeatedly put … in situations where she would be sexually assaulted” was sufficient for her to proceed on her IIED claim. It dismissed her contract claims based on the University’s sexual misconduct policy, finding that its aspirational statements and reservation to the University of discretion in responding to allegations fell short of an unambiguous promise.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Student Athlete Issues | Students
Date:
9/29/2023
Thomas v. E. Carolina Univ. (E.D. N.C. Sep. 21, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former head coach of the women’s volleyball team at East Carolina University (ECU), brought discrimination and retaliation claims against ECU after she was terminated for creating a “toxic” culture within her program. Plaintiff alleged that her termination was the result of complaints she raised about Title IX compliance in ECU’s athletics programs. In permitting her discriminatory discharge claim to proceed, the court found that plaintiff had sufficiently alleged that she was a high-performing, experienced female coach who was replaced by a male coach with only one year of coaching experience at the collegiate level. It permitted her retaliation claim to proceed, finding that she plausibly alleged that (1) ECU departed from its usual practice and denied her team post-season play two weeks after she complained of gender bias against the volleyball program, and (2) an athletics official had solicited complaints about plaintiff from her players and promised an assistant coach would be promoted if plaintiff was fired.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
9/22/2023
Mesbah v. Univ. of Louisville (W.D. Ky. Sep. 15, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former Ph.D. student and then postdoctoral researcher at the University of Louisville, brought harassment and retaliation claims under Title VII and Title IX against the University, alleging that a research supervisor made unwanted advances and then retaliated against her when she refused and complained to the program director. The court permitted her Title VII harassment and retaliation claims to proceed, finding that the incidents she alleged were sufficiently severe and pervasive to constitute a hostile work environment and that continuation of the advances, along with other hostile behavior, after she complained to the program director was sufficient to allege retaliation. In dismissing her Title IX deliberate indifference claim, the court noted that the University investigated her complaint and that allegations that the supervisor had harassed at least one other employee emerged only after the investigation. Her Title IX retaliation claim failed because she had not alleged she engaged in any protected activity while she was a Ph.D. student when the events underlying her claim allegedly occurred.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination

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