By Lorene D. Park, J.D. A female school director who, after disclosing an extramarital affair with a teacher, was told by a male VP that she should put family first, was subjected to intrusive questions on her intimate relationships, and was fired under an anti-nepotism policy that she claimed was not applied to males, plausibly alleged a gender discrimination claim under Title VII, as well as a violation of her Fourteenth Amendment right to intimate association, ruled a federal district court in Colorado. She could also proceed on her claim under the Colorado Lawful Off-Duty Activities Statute, but her claim under the Colorado Open Meetings Law was dismissed without prejudice (Douglas v. Mountain Song Community School, April 15, 2016, Mix, K.). Affair disclosed. The employee served as the director of a charter school. During the 2013-2014 school year, she began an intimate relationship with a new sixth grade teacher, and the two discussed leaving their respective spouses and marrying each other. Although they did not engage in activities related to their relationship during work hours, they decided to disclose their relationship to the pedagogical director on January 5, 2014. On January 6, the employee also informed the vice president of the school board. Allegedly biased investigation. Thereafter, the VP conducted what the employee claimed was a biased and unauthorized investigation that violated school policies. On February 6, he went to the employee’s house and told her that she should put her family responsibilities first. He also allegedly expressed his view that women should be homemakers and housewives; not professionals. The VP then called two closed Board meetings to discuss the employee’s relationships with her husband and with the teacher. In the meetings, she was asked intrusive questions about her sexual relationships and the VP made inappropriate, joking comments. Termination under anti-nepotism policy. The board held another meeting on February 9 and decided to terminate the employee, allegedly for violating the school’s anti-nepotism policy. After she was fired, the employee was allegedly told by the board president that the investigation was motivated in part by the board’s belief that the employee could not lead the school at the same time she was involved with the teacher. (The teacher resigned on February 8 or 9.) Gender discrimination claim. Refusing to dismiss the employee’s Title VII disparate treatment claim, the court rejected the school’s argument that the employee did not sufficiently allege circumstances giving rise to an inference of discrimination. In the court’s view, it was enough that she claimed that there was no violation of the anti-nepotism policy and that the school had never before enforced that policy, despite knowledge of intimate relationships between employees and between board members and employees, including a male board member who influenced personnel decisions for his intimate partner. Right to intimate association. The court also denied the motion as to the employee’s claim under the Fourteenth Amendment, which protects a liberty interest in the right to marry and in the right to familial association. Though at the time of the termination, her relationship with the teacher was non-marital and just three months old, the school did not challenge whether this was a type of relationship protected by the Fourteenth Amendment. Instead it focused on whether its anti-nepotism policy “passes muster under rational basis review.” Here, the employee plausibly alleged that the policy was not the real reason for her termination and that the board’s justification was a desire to retaliate against her for separating from her husband and entering a close emotional relationship that did not comport with the board’s gender stereotypes. If the termination was merely a cover-up, the school’s argument about its policy was inapplicable. Colorado Open Meetings Law. The school had more success in arguing that the employee lacked standing to pursue her claim under Colo. Rev. Stat. Sec. 24–6–401, which states that “the formation of public policy is public business and may not be conducted in secret.” Although the employee argued that the school failed to provide adequate notice to the public of the three board meetings held on February 6, 8, and 9, she did not allege any injury in connection with the lack of adequate notice. Instead, explained the court, the allegations undisputedly showed that she had knowledge of and attended the meetings on February 6 and 8 and her actual notice was fatal to her claim absent any other injury in fact. As to the February 9 meeting in which the board decided to terminate her, the employee did not allege whether the board’s actions in failing to give her notice foreclosed her opportunity to meaningfully participate in the meeting. Said differently, her allegations did not support an inference that, had there been public notice, she or others could have participated in such a way that she would not have been fired. Lawful off-duty activities claim. The court refused to dismiss the employee’s claim under Colorado’s Lawful Off-Duty Activities Statute (LODAS). Under LODAS, an employer may not fire an employee due to her “engaging in any lawful activity off the premises of the employer during nonworking hours” unless: (1) the activity relates to a bona fide occupational requirement or (2) the termination is necessary to avoid a conflict of interest with any responsibilities to the employer. The school argued that the application of its anti-nepotism policy to the employee was permissible under both exceptions, but the court had already found that she plausibly alleged that the school’s reliance on the policy was a façade. Thus, the issue was whether the board could legally fire her under LODAS in absence of the policy, and the parties had not briefed that issue.
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