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:

Court: Mere “Awareness” of an Employee’s Disability Does Not Ordinarily Satisfy the ADA Request Requirement

The U.S. Court of Appeals for the D.C. Circuit recently affirmed the dismissal of an Americans with Disabilities Act (ADA) lawsuit filed by a medical school resident against George Washington University. The plaintiff failed out of the university’s medical residency program allegedly due to her kidney cancer disability and sued the university, claiming that it did not provide her with an appropriate accommodation. The court ruled that a worker must generally ask for assistance to activate the ADA job accommodation process (Waggel v. George Washington University (D.C. Cir., No. 18-07181, 5/8/20)).

The court held that “mere awareness of a worker’s disabling condition does not ordinarily satisfy the ADA’s request requirement.” Instead, more is needed for an employer to have “implied or constructive notice” that an employee may need an accommodation. The court concluded that the connection between the plaintiff’s disability and her performance difficulties was not obvious.

The plaintiff claimed that the stress involved with her kidney cancer treatment contributed to her failing grades and performance problems, but the court held that she never requested an accommodation and the university, under these facts, could not be held to have “implied or constructive notice” of the plaintiff’s need for an accommodation.

Former Professor Who Had Relationship With Student in Violation of University Policy Loses Title IX and Title VII Claims Around His Suspension and Tenure Denial

A former assistant physics professor failed to show that Cornell University discriminated against him on the basis of gender under Title IX and race under Title VII as a result of his suspension and tenure denial because of his sexual relationship with a graduate student in violation of applicable university rules. Cornell concluded that the plaintiff had violated the school’s rules prohibiting romantic and sexual relationships between students and staff and suspended him without pay for two weeks. His academic appointment ended a year later, and he was not granted tenure.

The court dismissed all of his claims, holding that Title IX does not create a private right of action for discrimination and that he failed to demonstrate that the university discriminated against him because of race (Indian decent) in enforcing the university rule prohibiting such relationships (Vengalatore v. Cornell University (N.D. N.Y. , No. 18-cv-1124, 5/1/20)).

The court also held that he had no standing to allege that the federal government violated his constitutional rights by forcing Cornell to adopt sexual harassment guidelines which he claimed denied his due process during his disciplinary proceedings. The court rejected the plaintiff’s allegations that Cornell’s findings were erroneous.

College Coach Wins Right to Jury Trial Over Retaliatory Discharge Whistleblower Claims

The U.S. Court of Appeals for the Tenth Circuit (covering Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma) recently reinstated a retaliatory discharge whistleblower claim brought by the former coach of the Barton Community College (Kansas) women’s softball team. The court held that a jury could find that the reasons stated by the college supporting the discharge were pretextual. The short timeframe between the alleged whistleblower activity and the discharge gives a reasonable jury the possible evidence to find favor in the plaintiff (Benjamin v. Trustees Barton Community College (10th Cir., no. 19-03048, 4/24/20)).

The plaintiff was hired in 2013 and alleged that he was fired only after he began complaining that student athletes were being paid to travel to or from home or college. The allegations resulted in an investigation by the Kansas Jayhawk Community College Conference, which bars such payments under its rules. The plaintiff alleged that he had never received discipline in the past for the purported reasons for his discharge. He alleged that the temporal connection between whistleblower complaints and the firing, plus other circumstantial evidence, supported his case of retaliatory discharge. The divided court ruled he should be allowed to receive a jury trial over the matter.

Court of Appeals Vacates $13 Million Jury Verdict Awarded to Professor in Sexual Harassment Case, Cites Procedural Errors Resulting in Unfair Trial for the University

University of California Los Angeles recently won a reversal of an adverse $13 million jury verdict in favor of a former medical professor who claimed she was retaliated against after raising a sexual harassment complaint. The plaintiff claimed the retaliation included the removal of her research privileges, obstruction of her clinical trials, and being replaced as the head of her department by the man who had allegedly harassed her. The California State Court of Appeals reversed the jury verdict, concluding that the trial judge may have inappropriately preconditioned the jurors against the university defendant. (Pinter-Brown v. Regents of the University of California (2020 BL 151433, Cal. App., 2nd Dist. No. 8290086, 4/23/20)).

The trial judge played a presentation to prospective jurors before jury selection highlighting civil rights leaders and calling jurors to action. The presentation informed the jurors that it was their duty to follow in the steps of Martin Luther King, Jr. The court ruled that such action may have predisposed the jurors against the university.

The court also ruled that the trial judge erred during the trial by allowing evidence from other unrelated cases of sexual harassment. The court concluded that this type of “Me Too” evidence is never admissible to prove the university’s propensity to harass.

Another University Settles Class Action ERISA Suit

Since 2016, 20 colleges and universities have been sued in class action ERISA cases alleging fiduciary duty violations, including bad or too many investment options, multiple plan administrative recordkeepers and failing to negotiate lower administrative fees. Princeton University became the seventh university to settle after filing an unsuccessful motion to dismiss. The parties reported to the judge that they had successfully reached an agreement in principle to settle the matter.

Princeton joined the ranks of six other institutions to reach settlement — MIT, Johns Hopkins University, Vanderbilt University, Duke University, University of Chicago and Brown University. The remaining institutions are in various stages of litigation. At least one trial judge dismissed the class action, but the dismissal was appealed.

For the latest labor and employment law developments, check out the Workplace Initiatives and Strategies for Employers (WISE) blog, managed by Saul Ewing Arnstein and Lehr, and sign up for free alerts.