Third Circuit: University can be held liable for harassment by non-student guest under Title IX

The Third Circuit issued an interesting opinion analyzing a university's potential liability under Title IX for sex discrimination and harassment against a student by a non-student guest. The case is Hall v. Millersville University, et al. The underlying facts are horrific. A student was murdered in her dorm room by her non-student boyfriend. The precedent here, however, applies to Title IX, which covers sex discrimination and harassment more broadly (and ordinarily far short of murder).  

Several of the elements of a Title IX claim warrant little attention: the university received federal funds, sexual harassment occurred, and the harassment deprived the victim of her access to educational opportunities. The remaining elements required some in-depth analysis, which I will only briefly touch on:

Not official use.

The university can be held liable for the non-student's conduct if it "exercised substantial control over the harasser and the context in which the harassment occurred." In concluding that the university exercised such control, the Court noted the university's guest policies, ability to remove people from the premises, and ability to issue "No Trespass Orders."

The university must also have had knowledge of the harassment. Here, it is undisputed that a resident assistant (RA) had reported prior violence in the dorm that had left the student with a black and blue eye. The non-student harasser (i.e. murderer) had been removed from the dorm on multiple occasions. The roommate's mother had also reported concerns to the police. 

Finally, the university must have showed "deliberate indifference" to the harassment. Here, the university got the harasser out of the dorm when it received notice of an incident, which it argued was sufficient to meet its burden. The Court saw it differently:

The record shows that after receiving [the] report, neither Millersville’s Deputy Title IX Coordinator nor its Area Coordinator ensured the report was received by Millersville’s Title IX Coordinator, as they were required to do under Millersville’s own Title IX policy. Moreover, the record reveals Millersville did not reach out to [the victim] after the October 4th incident, and that it did not take any action in response to [the victim's roommate's mother's] calls other than to tell her nothing could be done without a complaining witness. 

Ultimately, the Court concluded that summary judgment was inappropriate here and remanded the case back to the district court where it will presumably be on track for a trial. 

This case will likely cause universities to re-examine how they respond to sexual harassment against  students by non-students. 

New orders from Gov. Wolf / Dr. Levine

Sorry for the brief hiatus, folks. I think I was suffering from a little election fatigue. I expect to be back in the flow after Thanksgiving. For now, "enjoy" these two new orders from Governor Wolf and Dr. Levine that may impact your workplace:

Traveler Testing

Just in time for Thanksgiving! People coming into Pennsylvania from another state (whether traveling to, or returning to, Pennsylvania) are required to either (a) get a negative COVID-19 test within 72 hours prior to entering PA; or (b) quarantining for 72 hours 14 Days (updated on 11/18/2020) (sidenote: perhaps some FFCRA implications here?). Full order. 

Strengthened Masking

• Masks are required to be worn indoors and outdoors if you are away from your home. 

• When outdoors, a mask must be worn if you are not able to remain physically distant (at least 6 feet away) from someone not in your household the entire time you are outdoors. 

• When indoors, masks will now be required even if you are physically distant from members not in your household. This means that even if you are able to be 6 feet apart, you will need to wear a mask while inside if with people other than members of your household. 

• This order applies to every indoor facility, including homes, retail establishments, gyms, doctors’ offices, public transportation, and anywhere food is prepared, packaged or served.

Of course, there are exceptions:

• If wearing a face covering while working would create an unsafe condition in which to operate equipment or execute a task as determined by local, state, or federal regulators or workplace safety guidelines. 

• If wearing a face covering would either cause a medical condition, or exacerbate an existing one, including respiratory issues that impede breathing, a mental health condition or a disability. 


• When necessary to confirm the individual’s identity. 

• While obtaining a service that requires the temporary removal of the face covering, such as dental services. 

• When working alone and isolated from interaction with other people with little or no expectation of in-person interaction. 

• If an individual is communicating or seeking to communicate with someone who is hearing-impaired or has another disability, where the ability to see the mouth is essential for communication.

Full order.

Other Guidance

We also got two industry-specific memos:

• Acute Care Hospitals; and

• Colleges and Universities. 

3d Cir: "Fairness" in university discipline policy requires cross-examination and live, adversarial hearing

The Obama administration's Title IX "Dear Colleague" letter generated a flood of litigation. Mostly male university students challenged the single investigator model and lack of various procedural safeguards in sexual misconduct disciplinary processes. For the most part, federal courts have been sympathetic to their plight. The Dear Colleague letter has now been replaced by the Trump administration's Title IX regs, but the litigation continues.

On May 29, 2020, the Third Circuit issued a precedential opinion in Doe v. Univ. of the Sciences. The university expelled a male student following allegations of sexual assault from two female students. He claimed that the school discriminated against him because of his sex in violation of Title IX; and, the university breached its contractual obligation to provide him a "fair" process under the student handbook and university policies. 

The Court noted assorted Title IX doctrines that have sprouted up in the past few years, most notably, erroneous outcome and selective enforcement. The Court expressly rejected the need to "superimpose doctrinal tests" and instead just focused on whether "a federally-funded college or university discriminated against a person on the basis of sex."

Here, the student alleged outside pressure to target male students from the Dear Colleague letter. He

also pointed to the university's failure to pursue discipline against the female students, who he claims violated the confidentiality provisions of the policy (by recruiting new accusers), violated the alcohol policy by drinking, and failed to consider that the accusers may have violated the policy because *he* was intoxicated when they had sex. The Court concluded that these allegations were sufficient to state a Title IX claim. 

The next part of the opinion analyzed the process afforded to John Doe. Most procedural challenges in this context are based on the 14th Amendment's Due Process Clause. But, here, the student attended a private school, which is not subject to constitutional constraints. The Court held, however, that the school could have contractually bound itself to its student handbook and discipline policies, which promised "fairness" 

 

The policies did not define "fairness" . . . so, the Court did:

In short, notions of fairness in Pennsylvania law include providing the accused with a chance to test witness credibility through some form of cross-examination and a live, adversarial hearing during which he or she can put on a defense and challenge evidence against him or her.

The student alleged that he received neither a live hearing nor an opportunity to cross-examine, and therefore he had stated a claim for breach of contract. 

Interestingly, the Court distinguished this case from a line of Pennsylvania court decisions showing a fair amount of deference to university interpretations of their own policies:

That is especially appropriate for matters uniquely within the institution’s province, such as academic integrity or faculty development and discipline . . . . This is not such a case. The investigation and fair adjudication of alleged criminal activity like sexual assault is not uniquely within the province of colleges and universities.

This raises some questions for future application. The University is not adjudicating a crime, and there is no criminal conviction - it's adjudicating a violation of its own policies. Now, there is obviously an overlap in that criminal activity (such as sexual assault) will often also violate a school policy. But, one of the cases the Court purports to differentiate is Murphy v. Duquesne Univ. of the Holy Ghost. 

In Murphy, the university terminated a faculty member for violation of its sexual harassment policy. Obviously, harassment could encompass criminal activity, including assault. So, why is Doe's situation different? Is there a substantive distinction between faculty sexual harassment and student sexual harassment? Student discipline is just as much in a university's wheelhouse as faculty discipline, no? Or is the distinction assault versus harassment that does not include assault? It feels like the Court drew some fine lines here, and it's not entirely clear (to me at least) exactly where they were drawn. 

New Title IX regs are here!

The Obama administration's Title IX "Dear Colleague" letter was the source of a lot of controversy (and, frankly, a lot of litigation). The Trump administration quickly tore up the Dear Colleague letter.  As an aside - this is one of many reasons why you don't govern by posting what was essentially a blog entry on the Department of Education website . . . as quickly as you put it up, the next administration can take it down. But, I digress.

Betsy DeVos announced new Title IX regulations yesterday. You can read the Final rule here. Suffice it to say that I have not yet had an opportunity to digest the 2033 (!) pages yet. Per the Department of Education press release, these are the "Key Provisions":

• Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex 
• Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely 
• Requires schools to offer clear, accessible options for any person to report sexual harassment 
• Empowers survivors to make decisions about how a school responds to incidents of sexual harassment 
• Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders 
• Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment 
• Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities 
• Restores fairness on college and university campuses by upholding all students' right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing 
• Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused 
• Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty 
• Provides "rape shield" protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records 
• Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding 
• Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely 
• Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment

These will likely be controversial as well. I'm sure we're in store for plenty of developments on this front.

NLRB proposes new rule regarding university students

Some federal agency issues just seem to swing back and forth like a pendulum - like, whether college students are employees who can unionize under the NLRA. A brief history:

Not official use.

• NLRB’s 2000 NYU decision: Certain graduate students are “employees”; 

• NLRB’s 2004 Brown University decision: college and university students are “primarily students” and not employees; 

• NLRB’s 2016 Columbia University decision: Graduate student teaching assistants and research assistants are “statutory employees."

Well, guess what? The Trump NLRB is swinging the pendulum back the other way. Per the announcement, "[T]he proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies." Such services specifically include teaching and research. You can read the Notice of Proposed Rulemaking (NPRM) here.

Comments are due by November 22nd. 

Third Circuit re-affirms that comparator evidence is not necessary to establish a prima facie case of discrimination

Last week, the Third Circuit issued a nonprecedential opinion in Feng v. Univ. of Delaware. The Court reversed a trial court's decision to grant summary judgment on Feng's Title VI national origin discrimination claim. Feng alleged that he was doing well at school, until the University forced him to enroll in a heavier courseload to maintain his immigration status.

The trial court granted summary judgment because Feng failed to proffer any similarly situated comparators to support his discrimination claim. Such evidence is not necessarily required though - plaintiffs may also establish a prima facie case of disparate treatment discrimination by otherwise showing an inference of discrimination, or providing direct evidence of discrimination.

Not official use.

“Although comparative evidence is often highly probative of discrimination, it is not an essential element of a plaintiff’s case.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268–69 (3d Cir. 2010) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999)).

The Court noted a factual issue regarding the source of the requirement that Feng take a heavier courseload. It was not clear whether federal law actually required it, or rather left the definition of the required "full course of study" to the discretion of the university. "Rather than attempting to disentangle the facts," the Third Circuit remanded to the district court.

Accommodation claim survives close shave at the Third Circuit

"Close shave" - It's a case about a guy with a skin condition, pseudofolliculitis barbae (PFB), who sought an accommodation to not have to shave his face or neck - get it? Full not precedential opinion here: Lewis v. Univ. of Penn.

The Plaintiff/Appellant succeeded in reversing summary judgment on three interesting issues (the Court hit even more issues, but these are just the highlights):

Constructive Discharge

Not official use. 

Constructive discharge is a resignation that is treated like an involuntary firing under the law. Courts look for an abusive and intolerable environment in which a reasonable person would feel compelled to resign. In Lewis, the Court held that evidence of the following was sufficient for a constructive discharge claim to survive summary judgment:

Lewis’s superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened Lewis with discharge.

Interactive Process

I try to emphasize this point with employers - yes, there are a bunch of technical requirements about what counts as a disability, what is a reasonable accommodation, when an accommodation constitutes an undue hardship . . . but the ADA requires that employers participate in an interactive process. So, make an effort to engage with the employee to see what you can do to help. As the Court described it, the employer must "engage in a good faith interactive process to identify accommodations."

The trial court dismissed the ADA claim because Lewis never expressly requested his desired accommodation (exemption from a medical certificate requirement). The Third Circuit reversed because Lewis had requested a related accommodation and the employer knew about his disability. This triggered their obligation to engage in the interactive process to identify a reasonable accommodation. Lewis claims he just got a flat denial with no effort to communicate about his needs.

Medical certificate counts as "disability-related inquiry"

Subject to some exceptions, the ADA generally prohibits disability-related medical examinations  and inquiries. Interestingly, the Court relied on EEOC Enforcement Guidance for the definition. "Disability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability." Here, the employer required some kind of medical certificate, so the trial court on remand will have to address whether it was for a legitimate purpose.

University Liability Under Title IX for Anonymous Internet Harassment?

In a remarkable ruling, the Fourth Circuit held that a university may be liable for anonymous posts on a third party app - Feminist Majority Fdn. v. Univ. of Mary Washington.

Students generally alleged that they were harassed and threatened on Yik Yak because of their involvement in a feminist organization. Not familiar with Yik Yak? The now defunct app allowed anonymous posts from anyone within a certain geographic radius. It quickly devolved into something like Mos Eisley from Star Wars - "You will never find a more wretched hive of scum and villainy."

Title IX imposes liability on educational institutions that fail to adequately respond to sex-based harassment. Supreme Court precedent requires, however, that the university "exercises substantial control over both the harasser and the context in which the known harassment occurs." Davis v. Monroe County Board ofEducation.

Mary Washington was decided on a 12(b)(6) motion (i.e. under a very deferential standard at the initial pleadings stage). There are several truly remarkable components of the decision:

Not official use.

• A university may have an obligation under Title IX to police a third party app that has no real connection to education (we're not talking about a forum used in courses or for any other university purpose);

• The harassers might not even be students - the app was open to literally anyone who was within the geographic zone;

• The geographic zone included nearby Fredericksburg, and was not limited to just the university campus.

Put more bluntly, and quoting from a blistering dissent: 

The majority . . . would hold a public university and its officers liable for an allegedly inadequate response to anonymous messages posted by unknown persons on a third-party social media app unrelated to the university.

The majority opinion stretches the boundaries of Title IX liability. It also creates significant First Amendment concerns as some of the proposed solutions included censoring or blocking access to certain online forums. Another quote from the dissent:

Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.

The majority opinion maintained that the university had other reasonable steps that it could have taken to address the harassment without infringing on anyone's First Amendment rights. The dissent concluded by expressly advising the university to "seek further review."

Transgender Prof wins $1.1 Million Jury Verdict

Just cranking out one last pre-Thanksgiving blog post here. Transgender university professor, Rachel Tudor, won a $1.1 million jury verdict in her employment discrimination case on Monday.

We're still in this awkward place where Title VII does not list "gender identity" (or "sexual orientation"), but some courts are interpreting the prohibition on "sex" discrimination to cover those classes. DOJ says they're not covered (after previously saying they were covered and initially being a plaintiff in the Tudor case). Meanwhile, the EEOC (at least for now) says they are covered. Meanwhile, some states expressly cover them, while some states do not but local ordinances do. Of course, transgender and homosexual employees at public universities may be protected under the Equal Protection Clause of the United States Constitution.

Confused yet? I anticipate federal legislation or a Supreme Court decision to decide this issue with regard to Title VII in the next few years.

Lawffice Links - Title IX Developments

I mostly focus on employment law on this blog, but my practice includes a lot of college and university law too. The law is constantly changing with regard to Title IX obligations to respond to allegations of sexual misconduct. Here are a few Lawffice Links on recent developments:

• Public university students accused of sex assault must get some chance to confront accusers (at least in ‘he said/she said’ cases) (WaPo) by Eugene Volokh;
• Statement from the U.S. Department of Education withdrawing the 2011 Dear Colleague Letter (and subsequent 2014 Q and A);
• The Department issued a new Q and A for interim guidance;
• We're also going back to the Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties from 2001 for now; and
• If you're a NACUA* member, they're doing a great job of holding tele-briefings and maintaining a Title IX resources page. 

Stay tuned because, per the Department's statement, "In the coming months, the Department intends to engage in rulemaking on Title IX responsibilities arising from complaints of sexual misconduct. The Department will solicit comments from stakeholders and the public during the rulemaking process, a legal procedure the prior administration ignored." (ouch, not saying the prior administration doesn't deserve the criticism, but that was a little harsh). 

* NACUA is the National Association of College and University Attorneys. 

7th Circuit: NCAA Student Athletes are Not Employees

Yesterday, the Seventh Circuit held that NCAA student athletes are not employees under the Fair Labor Standards Act (FLSA), and therefore they are not entitled to minimum wage. You can read the opinion in Berger v. NCAA here (.pdf).

The Court's opinion really came down to three main points:

Not official use.

• The Court decided not to apply the standard multifactor tests for analyzing whether an employment relationship existed because the multifactor test "fail[s] to capture the true nature of the relationship";

• The Court then noted the "long-standing . . . tradition of amateurism" in college sports; and

• The Department of Labor "Field Operations Handbook" specifically excludes "extracurricular activities" from its definition of employment, with a cross reference to a mention of "interscholastic athletics."

And that's pretty much it. I don't think I'm oversimplifying the Court's opinion here. 

I do think the Court oversimplified the analysis, and some review of the traditional multifactor test would have been informative. That's not to say that I think they reached the wrong result - to the contrary, I suspect this is the correct outcome - it just felt a little underwhelming. In fairness, the Court was deciding this case at the pleadings stage and therefore had virtually no record on which to base such analysis. 

Endnote: In a concurring opinion, Judge Hamilton notes that the plaintiffs were non-scholarship athletes in a non-revenue-generating sport (UPenn Track and Field). The "economic realities" may result in a different outcome for scholarship athletes in revenue-generating sports. 

BREAKING: NLRB "Student Assistants Covered by the NLRA"

Not official use.

You could see this coming a mile away; the only question was "when?" Today is the day. The NLRB issued its decision in Columbia University, holding that graduate students at private colleges and universities are employees who may form unions under the NLRA.

The NLRB concluded that graduate students, including teaching assistants and student research assistants, were "statutory employees: individuals with a common-law employment relationship with Columbia University." This decision overrules Brown University, which generally held that graduate students were primarily students and therefore not employees.

This decision does not directly impact public universities as they are generally governed by state bargaining laws (for example, in Pennsylvania we have the Public Employe Relations Act, which falls under the PLRB's jurisdiction). You can read the NLRB's announcement here.

NLRB Punts on Northwestern Football Union

Yesterday, the NLRB issued its long-awaited decision in the Northwestern University football team's union bid. So, are college football players employees, or not? The NLRB drops back... annnnnd... it's a punt!

You can read the decision and a press release. In short, the NLRB declined to exercise jurisdiction because it "would not promote labor stability." Why? Because:

By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution.

The point being that most college football teams exist at schools that are governed by some kind of state labor act (like a "PERA" - Public Employee Relations Act). So, you would have different state labor relations boards ruling on the issue, and inevitably different teams would be governed by different interpretations.

I did not see this coming. Frankly, I'm not even sure I realized it was a possibility. In any event, it was a unanimous decision that managed to preserve the status quo in NCAA football while ducking a controversial issue.

What is a "hostile educational environment"?

The University of Oklahoma SAE issue has led to a lot of First Amendment commentary. To recap, a bunch of fraternity brothers sang a song that included some horribly racist lyrics (such as the N-word and references to tree-hangings) on a charter bus. The university expelled the students.

Can they do that under the First Amendment? Eugene Volokh says no. The LA Times solicited views from a number of experts who unanimously concluded no (with one anonymous attorney calling it a "gray area"). And then there is Noah Feldman, who concluded that the university may expel the students because they face potential liability for allowing a "hostile educational environment." And, indeed, this appears to be the theory on which the university's president is relying.

I think everyone agrees that:

1. A public university may not expel students for speech protected by the First Amendment; and
2. Even horribly offensive, racist speech is protected by the First Amendment generally (sometimes the First Amendment yields uncomfortable results - the Westboro Baptist church has a right to picket funerals with signs like "Fags Doom Nations").

Strangely (especially for a Harvard law professor), Feldman never tells us what a "hostile educational environment" really is. He notes that the principle applies in Title IX (sex discrimination) . . . and it does. The Supreme Court defined the phrase as follows:

[A] plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities.

Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651, 119 S. Ct. 1661, 1675 (1999). I won't take that next step of analyzing whether frat bros singing on a private charter bus among themselves rises to this level, but I did want to fill this noticeable gap in Feldman's analysis.

If you are interested in this topic, the Third Circuit's opinion in Saxe v. State College Area School District addresses the "the very real tension between anti-harassment laws and the Constitution's guarantee of freedom of speech." The Court struck down a high school harassment policy as overly broad, holding that there is no "categorical 'harassment exception' from First Amendment protection." Two fun facts from that case: 1. I graduated from State College Area High School (attended grades 1-12 in that school district); 2. the opinion was written by now-Justice Alito.

Northwestern Football Players . . . to Unionize?

I rarely blog mid-day, but this seems worthy. The National College Players Association (NCPA) has petitioned the NLRB to form a union comprised of college athletes. They filed the petition on behalf of Northwestern's football team, including an undisclosed number of signed union cards.

As Professor Paul Secunda tweeted:

Biggest problem: not covered employees under NLRA. RT @PhilipMiles: Northwestern players seek to join labor union http://t.co/1uyXi8ojpF
— Paul M. Secunda (@psecundaWrkProf) January 28, 2014

That does appear to be a problem. And one echoed by the NCAA's response:

This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize. Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes. Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

The NCPA president claims an "overwhelming majority" of Northwestern's players support unionizing. It will certainly be interesting to see where this goes.

Guest Post: Rutgers, Whistleblowers, and Extortion

By Stephanie Sautter
Ms. Sautter is a 2L at Catholic University and Lead Articles Editor of the Catholic University Law Review

Just about everyone has seen the video of recently fired Rutgers University basketball coach Mike Rice abusing his players, both physically and verbally. The video, which ESPN aired last week, showed clips of Rice throwing basketballs at his players, kicking them, and shoving them. Less than 24 hours after it aired, Rice had been fired. Eric Murdock, the former Director of Player Development, compiled the video footage. Murdock gained public sympathy when he said that he tried to take steps to end the abuse, but was fired for doing so on July 2, under the false pretense that his contract was not being renewed.

The Whistleblowing Claim

Given the allegations, it was not too surprising when Murdock filed a wrongful termination suit in state court on April 5 (complaint can be seen here). He names several defendants, including Rutgers University, the current and former presidents of the university, Mike Rice, and former Athletic Director Timothy Penetti.

Murdock is alleging that his employment with Rutgers was terminated in direct response to his complaints about Rice’s offensive behavior. Essentially, he is saying that the employment decision was a result of illegal retaliation. Murdock is suing under New Jersey’s Conscientious Employee Protection Act, which created a cause of action for retaliatory discharge. Terminating an employee in response to the filing of an internal complaint is actionable retaliatory discharge under the Act. Therefore, Murdock’s complaints about Rice are protected, and Rutgers may be held liable if its actions were taken in response to the complaints. The issue may come down to whether Murdock can establish that he filed a complaint before the decision about his contract was made. He says this is the case, but has not yet provided evidence (failing to provide evidence seems to be a consistent problem for Murdock – Rutgers says he also made allegations about NCAA violations, including paying players, but did not provide any supporting evidence).

Rutgers has stated that Murdock’s contract was simply not renewed, which Murdock claims is not true. Rather, Murdock claims that his contract was actually renewed (although there is no evidence of this) and Rutgers’ contract renewal explanation is merely pretext. So far, Rutgers has not offered much justification for their decision other than a dispute Murdock had with Rice regarding missing 35 minutes of basketball camp – but that reason seems pretty flimsy. Odds are, Rutgers has compiled a laundry list of Murdock’s misconduct that they will say influenced their employment decision, but the court may determine that it was actually retaliation.

Extortion Investigation

Soon after filing his suit, however, information surfaced that was far less sympathetic to Murdock: he may have tried to extort Rutgers out of almost one million dollars. This week, the media obtained a 2-page letter, dated December 27, 2012, from Murdock’s attorney, Barry A. Kozyra to Rutgers University’s attorney, John K. Bennett (entire letter can be seen here). The letter requested a $950,000 “settlement” of Murdock’s (not yet filed) wrongful termination claim. Murdock’s salary with Rutgers was $70,000 - less than a 1/10 of the “settlement offer.” I’m admittedly not well versed in the art of extortion, but I’m guessing “don’t send a signed and dated extortion letter” is pretty high on the list of things not to do if you want to get away with it. Unfortunately for Murdock, though, his “settlement offer” was signed and dated, which might explain why F.B.I. Special Agent James Tareco visited the Rutgers campus. Murdock’s lawyer called the extortion claim “nonsense,” and said that the letter was a standard request to settle before filing suit.

What’s more, Murdock compiled the 30-minute video by painstakingly editing hundreds of hours of video footage, which he obtained pursuant to New Jersey’s freedom of information statute. Obviously this video is horrible no matter what, but the way in which Murdock went about creating it, along with his leaking it to ESPN rather than just filing his wrongful termination suit, does make it look a bit like extortion.

The Impact of an Extortion Attempt on his Whistleblowing Claim

Although settlement offers are not usually admissible in trial, evidence of an FBI investigation may be. An extortion attempt does not necessarily change the legality of Rutgers’ employment decision, but may still be helpful to Rutgers in determining damages or a settlement amount. If Murdock was taking steps in preparation of an extortion attempt while he was still employed, Rutgers could use evidence of the misconduct to severely limit the relief available to Murdock. The “after-acquired evidence” doctrine allows relief to be limited to back-pay based on evidence obtained after the retaliatory action, if the evidence would have been a legitimate basis for terminating the employee had the employer known about it at the time.

This means that Rutgers could benefit by obtaining evidence that Murdock was taping practices or discussions with or of Rutgers officials that he then used to extort Rutgers. Murdock certainly would have been fired for any known preparation of an attempt to extort Rutgers.

Note from Phil Miles: First, I'd like to thank Ms. Sautter for contributing this post. I would like to offer a few counterpoints in defense of Mr. Murdock. It is not unusual for an ex-employee to make a settlement demand prior to filing suit and as someone who does a lot of defense work, ridiculously high settlement demands are likewise not that unusual. The media "leak" does cause a little concern though. I also wanted to note that he has only filed a complaint so the lack of evidence at this stage is not a problem - although it may be down the road. I'd love to get some feedback on the line between settlement demands and extortion - so drop a comment!

Image: Rutgers logo used in commentary on matter of public interest. Not official use.

University HR's Speech on Homosexuality Not Protected - COTW #123

Public employees have free speech rights that protect them from workplace retaliation. However, their rights are very limited as demonstrated by this Case of the Week: Dixon v. University of Toledo (6th Cir.).

The employee was the Associate Vice President of Human Resources at the University of Toledo. She had significant authority and discretion in the area of policy-making and benefits administration.

One day, the editor-in-chief of a Toledo newspaper authored an op-ed comparing the struggle for homosexuals to obtain equal benefits for their same-sex partners at the university to the civil rights struggles of African-Americans and individuals with disabilities. The HR VP authored a response that was published in the paper, including:

As a Black woman who happens to be an alumnus of the University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are “civil rights victims.” Here’s why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few. . . .

Well, this is a Case of the Week, so you probably know what happened next . . . she was terminated.

On its face, this seems like a decent First Amendment claim. Was she speaking as a private citizen? She didn't identify her position, and writing the op-ed was not part of her official duties. Was it a matter of public concern? Obviously - I mean the paper published her op-ed, and it was in response to previous newspaper coverage of the issue.

So, what's wrong? Well, courts balance the individual's free speech interests against the government's interest as an employer. The Sixth Circuit applies a presumption that the government interest outweighs the individual's interest where the employee "was a policymaker who engaged in speech on a policy issue related to her position." In this case, the employee was a "policymaker" and her speech related to the HR issues she oversaw. Summary judgment for the employer.

HT: Heather Bussing via email.

REMINDER: Last day to vote for Lawffice Space in the Blawg 100!

University Employee's Right to Bring a Gun - COTW #89

The employee in Mitchell v. University of Kentucky (opinion here), kept his gun in his car . . . even when he went to work at UK. Unfortunately for him, the school has a policy prohibiting possession of a deadly weapon on campus (or while conducting University business). The university finds out, and the employee gets fired.

Not so fast! The employee strikes back with a wrongful termination claim. Generally, to bring a wrongful termination claim, the employee must show that he or she was terminated in violation of an established public policy (like a statute or constitutional provision).

By Kentucky statute:

No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle.

KRS § 527.020(4). He did have a license. Sounds promising... just one problem... the statute requires "compliance with" § 237.115. Hmmm, ok, and what does that say? It generally protects:

[T]he right of a college [or] university . . . to control the possession of deadly weapons on any property owned or controlled by them.

Suddenly the tables have turned, and the university looks like they're sitting pretty, right? Just one more twist . . . the university has the right to control the possession of deadly weapons, "[e]xcept as provided in KRS 527.020."

So, if you've been paying close attention:

• The employee has the right to keep his gun in his car, so long as he complies with the statute that protects the university's right to control possession of deadly weapons on campus.
• But, the statute that protects a university's right to control deadly weapons contains an express exception for the statute that protects the employee's right to keep his gun in his car.

Sounds like a big circle to me! The Court ultimately resolves the issue (can I call it a conundrum?) in favor of the employee, who is allowed to proceed with his wrongful termination claim. Although the case depends on Kentucky law, it's an interesting fact pattern, an unusual wrongful termination claim, and a good example of complex statutory interpretation.

HT: Euguene Volokh and his conspiracy.

STFU "We Want Boobies" (It's the Employer's Response that Counts) - COTW #36

The latest Case of the Week helps illustrate that an employer's strong response can overcome potentially harassing conduct. Fair warning: the facts of this case may be offensive to some (although apparently some combination of not objectively offensive enough and not severe and pervasive enough to constitute a hostile work environment!).

The plaintiff was a student football team manager at Hofstra who was trapped travelling on the team bus when the following scenario played out (per her deposition testimony):

[A movie was shown in which] there were numerous sex scenes that continued to be more graphic in nature. And players making lewd comments and howling and talking about how they wanted to get laid and oh, nice tits. And then there was a particular scene that was shown where a white woman was masturbating to a black man who was in the shower. And this player, Eric Taylor, turned around in his seat and said to me, this is what you white women want, our black dicks. That shit will make you go crazy. And then everyone started laughing. And I just burst into tears and crying. And I was humiliated and embarrassed and upset.

She complained to an assistant coach while the players chanted "we want boobies" and Eric Taylor told her to "sit down and like shut the fuck up."

Sound like a tough situation? Believe it or not, there were even more bullying and harassing incidents. But, as I mentioned, the Court was not even convinced that the acts could constitute a hostile work environment (which I find rather remarkable). More importantly, even if there was a hostile work environment, the response of the coaches saved the school from liability.

The assistant coach to whom the plaintiff complained immediately shut off the movie and told the players to quiet down. "Within 48 hours of her complaint, [the head coach] performed an investigation and removed Taylor from the team." Title VII requires remedial action, and that's what the coaches did. Accordingly the Court held that "no reasonable jury could impute that liability to Hofstra."

Of course, managers want to prevent harassing conduct before it happens. That's not always possible. When employees misbehave, the managers' reactions may still save the employer from liability. Employers should plan in advance to respond to misconduct in the future.

Shameless (but related to this post) plug: I'll be hosting the HR Hero audio conference Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying on April 28, 2011. Sign up today!

Interesting university law side-issue: The Plaintiff was a grad student with a $700 stipend, which was sufficient to establish that she was an employee capable of bringing a Title VII suit.

Citation: Summa v. Hofstra Univ., CV 08-0361 WDW, 2011 WL 1343058 (E.D.N.Y. Apr. 7, 2011)(copy here).

HT: Andrew Slobodien (@LaborLawLawyer) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Graduate Students and the NLRB

On Monday, the National Labor Relations Board (NLRB) issued an order (available here) signalling a shift in how it will handle Graduate Students under the National Labor Relations Act (NLRA). The issue is whether grad students qualify as "employees" under the NLRA, 29 U.S.C. § 152(3) (aka “Section 2(3)”), which would make them eligible for collective bargaining rights.  This latest salvo in the back-and-forth between the NLRB and... well, the NLRB shifts back toward counting the grad students as employees.

In this latest case, NYU and GSOC/UAW, petitioner sought to represent a unit of grad students at NYU.  The Regional Director dismissed the petition without conducting a hearing because grad students are not "employees" under the NLRB's 2004 decision in Brown University, 342 NLRB 483. The NLRB reviewed the dismissal and remanded for a new hearing with the subtle hint that they "believe there are compelling reasons for reconsideration of the decision in Brown University."

In Brown, the NLRB "declare[d] the federal law to be that graduate student assistants are not employees within the meaning of Section 2(3) of the Act." This
was itself a shift, overruling the NLRB's 2000 decision in another NYU matter, New York University, 332 NLRB 1205. In Brown, however, the NLRB noted "25 years of untroubled experience under pre-NYU standards" with graduate students being treated as students and not employees.

Are you getting a feel for the back and forth yet? The NLRB's order from Monday does not expressly reverse Brown, but it's tough to see it as anything other than the writing on the wall.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.