By Brandi O. Brown, J.D.
Although there was a nine-year time gap between his first lawsuit and his subsequent discharge, there was evidence the university was “disincentivized from taking earlier adverse action.”
In a retaliation and discrimination lawsuit brought by a 69-year-old former professor at Youngstown State University, the Sixth Circuit has reversed in its entirety a summary judgment decision in favor of the employer. The professor had alleged that after he settled a previous lawsuit with the university, a settlement that restricted its ability to terminate his employment for several years, the university was simply biding its time waiting to fire him. After it did, it also refused to hire him for several open positions. The appeals court ruled that the court below erred and that the professor’s claims should be resolved by a jury. Judge Rogers concurred in part and dissented in part (George v. Youngstown State University, July 17, 2020, Clay, E.).
Previous lawsuit. In 2008, nearly 10 years after he had started working for Youngstown University, the professor and university settled a race, sex, and age discrimination lawsuit he had filed after his tenure application was denied. He was reinstated under a term contract, with certain protections against termination until the end of the 2011-2012 academic year. Thereafter, if he was fired, the university was obligated under the settlement agreement to provide him with group medical insurance until he became eligible for Medicare.
Not renewed after Medicare-eligible. In Spring 2012, the end of his mandatory reinstatement period rolled around. The university renewed his term contract. It continued to do so until Spring 2015, which was when he became eligible for Medicare. In the intervening years, the dean of his college, who had administered the settlement agreement on behalf of the university, was promoted to provost. After that promotion, he discussed the professor’s reinstatement with the new dean, telling him that “whatever years of [George’s] reinstatement there were, were finished.”
He and the dean also discussed budget cuts and the loss of term positions and the professor was mentioned specifically, although other term employees were not. Two weeks after the professor became eligible for Medicare, he was told his contract was not being renewed and that it was a decision made by the provost.
Job applications denied. Thereafter, the professor applied unsuccessfully for several jobs with the university. He applied to be the Director of Dual Enrollment and Student Support Services with the math department, but the position was instead given to a woman in her forties. In November 2016, 10 months after he filed administrative charges of discrimination and retaliation, he applied to become an Assistant Director of Research Services. He was interviewed, but did not get the job. The provost’s approval was required for that decision. A 34-year-old female was hired instead. One year later, he applied for a lecturer position, which would have had him teaching the courses he had taught before his termination. The provost decided to terminate the search without filling the post.
Prior to the third non-hire, the professor filed another lawsuit against the university and individual defendants. The district court granted the defendants’ motion for summary judgment in its entirety and the professor appealed.
Financial disincentive. With regard to his retaliatory firing claim, the district court granted the university’s motion because of the lapse of time between the professor’s first lawsuit and his termination, which precluded any inference of causation. However, observed the appeals court majority, the professor was not relying on evidence of temporal proximity, alone, to make a prima facie showing of causation. Specifically, the settlement agreement itself provided a valid explanation for why he was not fired earlier.
It guaranteed his reinstatement through the end of the 2011-2012 academic year and medical coverage through April 2015. The “economic reality of the situation” was that the university would be responsible for paying part of his benefits regardless of whether or not he was working. Thus there was a financial disincentive for firing him sooner. Moreover, he presented evidence that the provost specifically referred to the completion of “whatever years of reinstatement there were” under the contract in a conversation with the dean and specifically brought up the professor and no other term appointees in discussions regarding the need to eliminate a term position.
As to pretext, there was evidence that called into question the reason given for the professor’s termination (the return of another professor from unpaid leave). The term appointee who was covering that professor’s classes during the absence was retained. There were also credibility questions as well as other evidence undercutting the university’s other justifications.
Hiring claims. With regard to the failure-to-hire claims, the professor likewise presented evidence sufficient to take the claims to a jury. As to the director position, the university claimed it was looking for someone with a master’s degree in mathematics, but there was evidence indicating that either that was not necessarily true (the selectee did not yet have her Masters in hand) or, if so, that it was wiling to consider candidates with equivalent degrees (they considered someone with an MBA). There was also evidence indicating that the selectee had actually been selected for the job before the announcement even went out. For the assistant director position, there was evidence of irregularities in the search process. And regarding the lecturer position, the district court had erroneously applied the exhaustion requirement, even though the defendants had explicitly waived that defense, and there was a fact dispute regarding whether the job remained open for applications.
Judge Rogers’ partial dissent. Judge Rogers dissented in part with regard to the retaliatory discharge claim only, arguing that the nine-year gap was “far too long to infer a causal connection between the two events.” Judge Rogers noted that the provost had given the employee “glowing performance evaluations” in the three years leading up to the non-renewal and had not taken the opportunity to retaliate during that time. Judge Rogers referred to the benefit of terminating the professor after the expiration of his health benefits as only “to a limited degree advantageous” and cautioned against insulating employees from adverse action in any case where “some limited benefit inures to the employer from delaying the adverse action.”
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