Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
5/26/2023
Orr v. S. Dakota Bd. of Regents (D. S.D. May 11, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track instructor of health and physical education at Northern State University, brought multiple discrimination and retaliation claims against the University and multiple officials after he was denied tenure due to insufficient scholarship. Leading up to this decision, plaintiff took 6 weeks of paid parental leave early in 2018, returning approximately a month before he was informed of his tenure denial. Plaintiff claimed that the University unlawfully interfered with his rights under the FMLA by declining to extend 12 weeks of paid leave. The court disagreed. Although FMLA permits eligible employees to take 12 weeks of leave, the leave need not be paid. Further, plaintiff never requested an additional 6 weeks, thus extinguishing any rights he may have otherwise had under the Act. However, the court permitted plaintiff to proceed on his FMLA retaliation claim based on disputed facts about whether plaintiff was denied tenure for insufficient scholarship, as the Tenure Committee represented, or whether shifting explanations about plaintiff’s collegiality coupled with animosity and controversy related to plaintiff’s parental leave “more likely motivated” the tenure decision. The court dismissed plaintiff’s Title IX claim for lack of an adequate comparator but permitted him to proceed in his First Amendment retaliation claim against the Dean.
Topics:
Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
5/26/2023
Frierson v. The Shaw Univ. (E.D. N.C. May 19, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Director of Student Retention at Shaw University, brought a Title IX claim against the University after he was terminated for sexually harassing a student. In response to an OCR investigation that found the University had not given him specific notice of the allegations against him, reasonable opportunity to respond, or an opportunity to confront or question his accuser, the University reopened the investigation with an impartial investigator. Plaintiff declined to participate, and the University upheld its decision to terminate him. In granting summary judgment in favor of the University, the court held that no rational jury could find he complied with the University’s policies or that the decision to terminate him was based on his sex.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Sex Discrimination in Employment
Date:
5/19/2023
Countryman-Roswurm v. Muma (10th Cir. May 15, 2023)
Order and Judgment reversing denial of Defendant’s Motion to Dismiss and remanding. Plaintiff, a tenured professor of social work at Wichita State University and Executive Director of the University’s Center for Combating Human Trafficking, faced harassment from a colleague who allegedly spread rumors that she had secured her dual appointment through sexual favors. Among other claims, she alleged Equal Protection violations under §1983 against the University’s Provost, asserting that after responding inadequately to her initial complaint, he terminated her contract with the Center when she reported continued harassment. The district court denied the Provost’s Motion to Dismiss, finding that precedent forbids a supervisor’s acquiescence in sexual harassment. The Tenth Circuit reversed, holding that because the University had already launched an investigation, its precedents did not clearly establish that the Provost’s response amounted to acquiescence.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | Sex Discrimination | Sex Discrimination in Employment
Date:
5/12/2023
Loecker v. Bd. of Trustees for Colo. Mesa Univ. (D. Colo. May 1, 2023)
Order granting Defendant’s Motion to Strike and Exclude. Plaintiff, the former head coach of women’s lacrosse at Colorado Mesa University, brought sex discrimination claims against the University after she was terminated following complaints from players and parents that she “created a negative culture.” Plaintiff disclosed as an expert witness a professor of sports management whose report discussed gender bias, stereotypes, and leadership expectations in sports, and how these may affect evaluations of female coaches. The court first held that the testimony is admissible under Rule 702 on expert testimony, even though the expert’s report addressed only general principles, rather than the facts of the instant case. However, the court granted the University’s Motion to Strike and Exclude under Rule 403 on relevance, finding that this was a topic within a layperson’s common knowledge and that “its minimal probative value is substantially outweighed by its prejudicial effect.”
Topics:
Athletics & Sports | Athletics Operations | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment | Tax Implication of Campus Political Activity | Taxes & Finances
Date:
4/21/2023
Anderson v. Fort Hays State Univ. (10th Cir. Apr. 14, 2023)
Order and Judgment affirming summary judgment in favor of the University. Plaintiff, a former adjunct instructor at Fort Hays State University, brought a discrimination claim against the University after she was not selected for a tenure-track position. She alleged that she had greater teaching experience and a Ph.D., whereas the successful candidate had limited teaching experience and had not yet completed a doctorate. In affirming summary judgment in favor of the University, the Tenth Circuit held that plaintiff was unable to demonstrate that the University’s reasoning was pretextual, noting that while she scored higher on teaching experience and credentials, her total score was lower when scores in all seven areas of the preferred qualifications were calculated. The court also held that the reactions of two colleagues who felt plaintiff was more qualified were insufficient to raise a question about pretext, finding that the opinions were conjectural and lacked foundation because neither colleague was involved in or otherwise had knowledge of the selection process.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
4/21/2023
Lashley v. Spartanburg Methodist Coll. (4th Cir. Apr. 18, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former instructor and Director of the Criminal Justice Program at Spartanburg Methodist College, brought discrimination and retaliation claims against the College and multiple officials after she was told that her contract would not be renewed and that her employment would be terminated early. In affirming summary judgment in favor of the College, the Fourth Circuit first held that her retaliation claims failed because the President, who was the ultimate decision maker, was unaware of her advocacy for female students or her complaints about mold in her office building. It also held that she was unable to show that the College’s concerns about her unprofessional behavior and threatening statements about “‘evil people’ who would ‘get theirs’” were pretextual. Her disability discrimination claims likewise failed because (1) plaintiff disengaged from the interactive process and (2) her testimony that her department chair had used an “angry tone” in saying “tell me about your health issues,” without more, was insufficient to support a claim based on an unlawful health inquiry.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
4/14/2023
Trahanas v. Nw. Univ. (7th Cir. Apr. 7, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former research technologist at the Northwestern University School of Medicine who had been diagnosed with ADHD, depression, and anxiety, brought hostile work environment and FMLA retaliation claims against the University and her former supervisor after she was terminated for failing to return from FMLA leave. Shortly after her leave began, her supervisor discovered that she had begun experiments without keeping appropriate records, which prompted him to rescind his letter of recommendation supporting her medical school applications. In affirming summary judgment in favor of the University, the Seventh Circuit held that plaintiff’s hostile work environment claims failed because she never reported alleged hostile statements by her supervisor to University officials, and she never informed her supervisor or other officials of alleged harassment by her coworkers. It held that her retaliation claim against the University failed because she never attempted to extend her leave when she failed to return to work. It held that her retaliation claim against her supervisor failed because she was unable to show injury. Specifically, by the time he rescinded his letter, nine schools had already rejected her applications, and the remaining six requested additional application materials, which she never supplied.
Topics:
Discrimination, Accommodation, & Diversity | Family and Medical Leave Act (FMLA) | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
4/14/2023
Spears v. La. Coll. (5th Cir. Apr. 6, 2023)
Opinion affirming-in-part and reversing-in-part summary judgment in favor of the College. Plaintiff, a former Professor of Health and Physical Education at Louisiana College who continued to teach as an adjunct “Senior Professor” after her retirement, brought discrimination, retaliation, contract, and defamation claims against the College after her contract was not renewed following her medical leave for cancer treatment. The Fifth Circuit reversed summary judgment in favor of the College on plaintiff’s discrimination and retaliation claims, finding that there was a genuine issue of fact as to whether she had told the College she would not be returning for the new academic year, which the College had asserted as its legitimate basis for her nonrenewal. It affirmed summary judgment in favor of the College on her contract claim, finding that her adjunct contract expressly disclaimed any expectation of continued employment. It also affirmed summary judgment in favor of the College on her defamation claim, finding that she failed to provide evidence that a response by the College President to a posting by plaintiff’s sister in the College’s Alumni Facebook Group was made in bad faith.
Topics:
Age Discrimination | Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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