by CUPA-HR | December 10, 2024
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Terminated Professor May Pursue Title IX, Anti-Male Bias Claim as John Doe
A former Boston University professor may anonymously pursue his Title IX claim that the university’s sexual harassment investigation leading to his termination was itself biased against males. The court noted that the use of pseudonyms is strongly disfavored in civil litigation. The judge nonetheless allowed it in this case for the following reasons: the plaintiff’s strong and realistic fear of reputational damage, the chilling effect that name disclosure could have on future litigants, the public interest in disclosing Doe’s identity does not appear significant, and the use of a pseudonym will not prejudice the university’s defense. The case will move forward without disclosure of the professor’s name (Doe v. Trustees of Boston University (2024 Bl 399572 D. Mass. No. 1:24-cv-10619, 11/6/24)).
Division I Tennis Player Narrows Lawsuit Against NCAA Following Dismissal of Initial Complaint
A Division I tennis player at the University of North Carolina at Chapel Hill has narrowed her class action complaint against the NCAA a month after her request for an injunction was denied. The federal judge did not view her claim as being ultimately successful because of its breadth. The plaintiff made it to the third round of the U.S. Open tennis tournament in 2021 and was entitled to $48,913 in prize money. NCAA rules allowed her to accept only $10,000 in prize money from all competitions that year. Accepting more would have jeopardized her ability to play on the women’s tennis team at UNC. She was also forced to forfeit other prize money she won in 2021.
Her initial complaint sought to represent a class of all Division I student-athletes in all individual sports, including swimming and golf. Her amended complaint limits the class to Division I tennis players (Brantmeier v. NCAA (M.D. N.C. No. 1:24-cv-00238, 11/8/24)).
Federal Court Dismisses Professor’s Claim That DEI Statement on University Application Screening Process Would Render His Application Futile
A plaintiff’s claims that a university’s required DEI statement on its initial applicant screening process made his application futile or put him a disadvantage to other parties have been dismissed. A California federal trial court dismissed the claims for lack of standing, as the plaintiff professor never actually applied for the position in question. The court concluded that the professor, who had amended his complaint three times, did not include an actual allegation that he applied for the position.
In dismissing the case against the University of California, Santa Cruz, the court concluded that the professor’s “futility” claim failed because he may well have passed the initial screening stage notwithstanding the DEI statement (Haltigan v. Drake (N.D. Cal. No. 5:23-cv-02437, 11/15/24)).
House Committee on Education and the Workforce Investigating “Information Sharing Agreement” Between DOL and a Plaintiff’s Law Firm
Republicans on the House Committee on Education and the Workforce have called upon the Department of Labor’s inspector general to investigate the DOL’s Employee Benefits Security Administration (EBSA) after it shared confidential material with a law firm suing a company that had been the target of a prior agency audit. The material was provided to the plaintiff’s law firm Cohen Milstein Sellars & Toll PLLC under a DOL “information sharing agreement” between the department’s division and the law firm.
Common interest agreements are standard in litigation when two parties in active litigation share plaintiff or defense interest on the same side of the litigation. In this case, however, the DOL was not a party to the litigation nor had it filed a lawsuit against the defendant involved in this private litigation. The request to the DOL’s inspector general also asks how many other common interest agreements the EBSA has with other plaintiff law firms.
Coach Denied Injunction Reinstating Him Following Alleged Use of Slur Involving Transgender Athletes
A high school coach who filed a First Amendment lawsuit against his school district is denied a court-ordered injunction reinstating him while he litigates the propriety of his alleged statements. The coach claims his First Amendment rights were violated when he was terminated following his email critical of the school district’s position on transgender athletes. The school district defended, stating that he would have been terminated regardless of the email because another coach reported that he used a slur in referring to transgender athletes.
In denying the coach’s request for an injunction, the court concluded that the plaintiff did not show irreparable harm that could not be compensated by monetary damages. The court ruled that the school district’s responsibility to ensure that all students feel safe and are not harassed outweighs the coach’s personal interests in this matter (Parks v. Lake Oswego School District (D. Or., No.3:24-cv-0119, 11/25/24)).
