The Higher Ed Workplace Blog

HR and the Courts

Each month, CUPA-HR General Counsel Ira Shepard provides an overview of some labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira:

Federal Court Rules Professor’s Claims That Title IX Investigation Was Flawed and Gender-Biased Should Proceed to Discovery and Possible Trial, and His Defamation Claims Can Move Forward

A federal district court judge recently sided with a professor on his claims that a Title IX investigation into allegations of inappropriate conduct and sexual harassment filed by two female peers — which led to his discharge — was flawed procedurally and resulted from gender bias of the investigator, leading to an erroneous outcome (Fogel v. The University of the Arts (2019 BL 106367, E.D. PA., No. 18-cv-5137, 3/27/19)).

The judge ruled that the professor (the plaintiff) raised enough plausible allegations that the investigation process was flawed and that the report, which was not shared with him, may have resulted in an erroneous conclusion to justify moving forward with the case. The judge denied the university’s motion to dismiss.

The university’s Title IX coordinator received a written complaint from a professor at another college who claimed that the plaintiff kissed her without consent upon greeting her in a hotel lobby at a conference in Las Vegas. Two days later, the Title IX coordinator received a complaint from a professor at their university claiming that the plaintiff gave her his hotel room key card instead of his business card after he reviewed some of her photography work at the same conference.

The plaintiff alleged that the Title IX investigator refused to investigate rumors that the latter accuser mentioned that she believed the professor was joking with her when he handed her his hotel key card instead of his business card. In response to the initial complaint of non-consensual kissing, the professor claims that the investigator did not look into his own claims that he was hugged and kissed by a female supervisor without his permission. Further, the professor alleged that the investigator refused to answer his question about whether the same standard should apply to both men and women.

Additionally, the plaintiff alleged that he was not given a copy of the Title IX investigative report that led to his discharge and was not given an opportunity to respond to the report. He also alleged that no live hearings were conducted. He stated that the entire investigation consisted of his interview and the investigator talking with his accusers either in person or by phone. He alleged that the investigation was incomplete and resulted in a flawed recommendation, which he was not allowed to respond to.

The professor also sued the female professor/accuser from the other institution who was attending the conference for defamation. The judge dismissed the defamation complaint to the extent that it involved the female professor’s statements to the Title IX Investigator, which the court ruled are absolutely privileged. However, the judge let the defamation allegations proceed to the extent that the female professor spoke derogatorily of the plaintiff to other participants at the conference.

Title IX Claim Brought by a Medical Student Involving an Alleged Sexual Assault by the Boyfriend of the University’s Gender Violence Intervention Coordinator Dismissed

A medical student at Duke University recently filed a federal Title IX lawsuit against the institution involving allegations that she was sexually assaulted by the boyfriend of the university’s gender violence intervention coordinator. The boyfriend was neither an employee nor a student at Duke and had no relationship with the university.

The plaintiff claimed to have requested counseling and other services from the university as a result of the attack. She alleged that the gender violence coordinator refused her requests because she sided with her boyfriend, who denied the allegations. The plaintiff alleged that this refusal violated Title IX, and she claimed that the gender violence coordinator and her boyfriend embarked on a campaign to discredit her at the university and in the medical community. She also sued the gender violence coordinator and her boyfriend individually. A federal district court judge dismissed the case against Duke, but let it proceed against the alleged perpetrator of the sexual assault and the employee of the university in her individual capacity (McClean v. Duke University (2019 BL 102813, M.D.N.C., No. 17-cv-603, 3/25/19)).

The case against Duke was dismissed because the alleged perpetrator had no relationship with the university and the university had no control over him, and because there was no sexual discrimination involved in the allegations. The court concluded that at most the allegations involved a reaction by the university employee against the plaintiff based on “revenge” by the employee against the plaintiff for making the accusations against her boyfriend.

Finally, the court ruled that there was no evidence that the employee’s actions were based on the plaintiff’s sex or that she treated males any better than females, and therefore the case must be dismissed under Title IX.

Court of Appeals Affirms Dismissal of Female Professor’s Gender-Bias Pay Claims

The U.S. Court of Appeals for the Fourth Circuit ( covering Virginia, Maryland, West Virginia,  North Carolina and South Carolina) recently affirmed a federal trial court decision dismissing a female professor’s claims under both Title VII and the Equal Pay Act that she was paid less than male professors, holding that she did not present evidence under either statute of pay differential with male professors who were appropriate comparators (Spencer v. Virginia State University (4th Cir., No. 17-02453, 3/16/19)).

The plaintiff is a sociology professor at Virginia State University and was paid approximately $70,000 per year, which was the median salary of all male professors at the university. She filed suit, claiming violations of both Tile VII and the Equal Pay Act, citing two male professors who worked in another department (and were also former administrators at the university) who were paid salaries of $100,000 a year and benefited from the university’s “9/12ths policy,” under which all administrators who become professors are paid at least 9/12ths of their former administrator’s salary, whether male or female.

The court held that the Equal Pay Act relieves plaintiffs of proving discriminatory intent but requires the jobs to be “virtually identical” in terms of skill and responsibility. Under Title VII, the statute requires that the jobs be “substantially similar and that the disparity be the result of discriminatory intent.” The court held that the plaintiff’s allegations failed under both the “virtually identical” and the “substantially similar” tests. The court ruled that the two male professors worked in other departments and had significantly different responsibilities, and pointed out that to compare all professors as the same ignored the “inherent features of academia” (for example, the university systematically pays humanities professors less than engineering professors, regardless of sex).

Moreover, in the plaintiff’s case, she compared herself to male professors in another department who taught more graduate courses than she did. One of the two male professors also supervised doctoral dissertations, which she did not do. Both also qualified for the 9/12ths policy, which she did not. Finally, the plaintiff did not have any evidence that the 9/12ths policy was discriminatory on the basis of sex.

University President Is Found to Be Immune From Disability Discrimination Lawsuit and Alleged Failure to Provide a Due Process Hearing to Terminated University Employee

The Court of Appeals for the 2nd Circuit (covering New York, Connecticut, Vermont and New Hampshire) recently ruled that that the former president of the State University of New York at Potsdam is immune from liability for disability discrimination and denial of due process claims brought by a former employee who was terminated during the former president’s tenure (Tooly v. Schwaller (2nd Cir., No. 17-03564, 3/20/19)).

The plaintiff was a driver at the university when his coworkers noticed erratic behavior. He was seen driving a truck which swerved toward, but did not hit, employees. He was placed on paid administrative leave and told to submit to a medical evaluation before he could return to work. He was also told he would be disciplined if he did not submit to the evaluation. The plaintiff did not comply, refused to show up for the evaluation, and skipped the disciplinary hearing which he was told to attend as a result of his not submitting to an examination. The university fired him for this conduct.

The plaintiff sued the president for violation of the New York disability law and violation of his First Amendment due process right for a hearing before being required to submit to a medical evaluation and a hearing before being discharged. The Supreme Court has ruled that public employees are entitled to a due process hearing before termination because of their First Amendment property interest in their job.

The appeals court ruled that the former president was entitled to summary judgement on the basis of qualified immunity from violation of the New York disability law. The court also ruled that the plaintiff was not entitled to a due process hearing before having to submit to a medical exam, as there is no First Amendment property right invoked because he was on paid leave.

While the former employee was entitled to a hearing before discharge, the case law is unsettled whether that right is violated when he is granted a hearing, skips the hearing, and is fired for not attending the hearing. In light of the unsettled case law, the court found that the president is entitled to qualified immunity and dismissed the suit.

Employer’s “Honest Belief” Defense to FMLA Violation and Retaliation Cases Gaining Traction

Terminating Family and Medical Leave Act (FMLA) leave based on an employer’s “honest belief” that the employee is not qualified for FMLA or is committing FMLA abuse is gaining traction as a powerful defense to employee lawsuits alleging FMLA violations or retaliation, especially where the employer provides the employee with fair due process to resolve whether or not FMLA leave should be granted or continued.

According to Bloomberg, most of these cases involving this defense are occurring in the industrialized 6th Circuit U.S. Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee), where the jobs involved are somewhat physical. Bloomberg reports that employers have won more than half of the FMLA cases filed when using this defense.