Legal Watch - June 1, 2016
June 1, 2016

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

Female Track Coach’s Race and Sex Discrimination Claims Headed to Jury – Male Coaches Allegedly Treated More Favorably After Consensual, Intimate Relationships With Students

A Hall of Fame women’s track coach who is the winningest black coach in NCAA history and the first black head coach at her university survived summary judgement recently in her claim of race and sex discrimination resulting from her resignation following the university’s alleged threat to discharge her as a result of having an intimate relationship with a student more than 10 years prior. The plaintiff won six national championships as coach of the University of Texas at Austin women’s track team from 1993-2013. A Texas state court recently denied the university’s motion for summary judgement, holding that the plaintiff’s alleged comparator evidence of more favorable treatment of male, white coaches could prove her disparate treatment discrimination claim (University of Texas at Austin v. Kearney (2016 BL 139694, Tex. App., 3rd Dist., No. 03-14-00500-CV, 5/3/16)).

The court dismissed the plaintiff’s retaliation claim but rejected the university’s arguments that the underlying race and sex discrimination claims should be dismissed because the alleged comparable male coaches may have been employed at different times, in different departments and with different supervisors. The plaintiff alleged that a former white male coach had a sexual encounter with a university student and another white male coach married an athlete. The plaintiff alleged that neither white male coach was subjected to termination or even meaningful disciplinary actions. The plaintiff argued that she was essentially terminated because she is a black woman, and stated that other white males were treated more favorably following similar misconduct. 

Back Pay Award Denied to Female Professor Who Proved Sex Discrimination But Did Not Apply for a Follow-Up Position – Court Holds There Was No Evidence She Would Have Obtained a Comparable Position

A federal court of appeals recently reduced a trial court judgment of $513,368 in damages resulting from a sex discrimination claim to $300,000, holding that the $213,368 in alleged lost pay was not recoverable because the plaintiff did not prove with “reasonable certainty” that she would have obtained another position because there was no evidence that she had even applied for a new position following the termination of her employment. The appeals court let stand a $300,000 judgment in her favor for alleged emotional suffering and other harm (Szeinbach v. The Ohio State University (2016 BL 125074, 6th Cir., No. 15-3016, 4/20/16)).

The plaintiff argued that she considered pursuing other jobs following her termination and that the $213,368 was the amount she would have made in comparable positions at other universities. She argued that she did not apply elsewhere because the university had harmed her reputation. The court of appeals rejected her argument, stating that at most her actions were preliminary recruitment efforts, as she never had any interviews nor received any offers of employment. Therefore, her testimony about what she might have earned was too speculative to support a back pay calculation.  

EEOC Successfully Subpoenas Staffing Firm’s Client Lists Following Allegations That Firm Committed Age Discrimination

A U.S. court of appeals recently affirmed the EEOC’s broad investigatory powers in approving an EEOC subpoena of a staffing firm’s client list following charges that the staffing firm was committing age discrimination in its recruitment efforts. A federal trial court had already approved the subpoena and the appeals court affirmed following the staffing firm’s appeal, holding that the subpoena was clearly relevant to the EEOC’s investigation of age discrimination charges brought against the firm (EEOC v. Aerotek Inc. (2016 BL 66248, 7th Cir., no. 15-1690, 3/4/16)).

The staffing firm in question had a national scope and typically supplies temporary workers to clients on a contract basis. The EEOC was investigating allegations that some clients requested candidates in their “40s and 50s.” The EEOC requested client names at 62 of the staffing company’s locations and also the names and contact information of the workers assigned to those clients. The staffing company argued that the EEOC was on a fishing expedition and the vast majority of its 22,000 clients were not related to the allegedly discriminatory requests. The court of appeals rejected the staffing firm’s arguments and sided with the EEOC in enforcing the subpoena.  

Hospital Is Subject to Jury Trial Over Patient’s Race-Based Discriminatory Request

A federal district court trial court recently denied a hospital’s motion of summary judgement on a race discrimination case brought by a hospital employee who alleged she was discriminated against in violation of Title VII as a result of a patient’s request that he not be treated by black employees. The court ruled that the plaintiff was entitled to a jury trial over her allegations of federal and state anti-discrimination law violations (McCrary v. Oakwood Healthcare Inc. (2016 BL 80827, ED Mich., 4:14-cv-14053, 3/16/16)).

The patient involved told the hospital upon entrance that he did not want to be treated by black employees and a note to that effect was entered on the patient’s chart. When the plaintiff entered the patient’s room, the patient asked her to leave, and she was informed by another hospital employee of the note on the patient’s chart. The court ruled that the hospital should have trained its intake personnel to advise patients that such requests are unlawfully discriminatory and that the hospital cannot and will not honor them. The court ruled that the plaintiff is entitled to a jury trial over her claims, which appear to have violated the applicable anti-discrimination statutory provisions.