Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On June 1, 2010, the United States Court of Appeals for the District of Columbia affirmed a district court order dismissing a Howard University employee’s retaliation claims on the basis of judicial estoppel, based upon the employee’s representations in separate bankruptcy proceedings.

During his employment at Howard University in 1999, plaintiff Vijayakumar Moses filed suit against Howard University alleging discrimination on the basis of race, national origin, and age. In the midst of that first lawsuit, Moses filed a second lawsuit, alleging that Howard had terminated his employment in retaliation for filing the first lawsuit.

With that second lawsuit for retaliation pending, Moses also initiated two separate bankruptcy proceedings. In both bankruptcy matters, Moses was required to file a sworn statement identifying all pending litigation. While Moses listed certain other litigation in that statement, he omitted any mention of his discrimination and retaliation lawsuits against Howard University.

Upon learning of Moses’ omission of the Howard litigation in those sworn statements in the bankruptcy proceedings, Howard University filed a motion for summary judgment, arguing that Moses should be barred from proceeding against Howard on the basis of “judicial estoppel.” The doctrine of judicial estoppel “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.”

After the federal district court granted summary judgment in favor of Howard University, Moses appealed. The United States Court of Appeals for the District of Columbia affirmed summary judgment in favor of Howard and admonished Moses for his inconsistent filings. As the court explained, Moses’ filings suggest that Moses intended to pursue his claims against Howard without disclosing those claims to his creditors in bankruptcy. Moses attempted to cheat his creditors out of any damage award he would have received against Howard.
 

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The U.S. Supreme Court is set to hear oral arguments on April 19 in a case arising out of the Ninth Circuit, Christian Legal Society v. Martinez. In Martinez, the Ninth Circuit held that that the University of California Hastings College of the Law in San Francisco had the right to deny recognition to the Christian Legal Society because CLS requires that its officers and voting members abide by the CLS Statement of Faith. The Supreme Court accepted certiorari to resolve the split between the Ninth Circuit’s decision and that of the Seventh Circuit, which held to the contrary in a similar case involving Southern Illinois University's school of law.

The University of California Hastings’ nondiscrimination policy includes provisions on religion and sexual orientation. CLS, contending that the nondiscrimination policy would require it to permit election of officers who do not abide by principles in the Statement of Faith such as a prohibition on extramarital sex, sought exemption from the policy. After the University denied the request and removed the group’s official recognition and funding, CLS filed suit against the school officials.

The Supreme Court briefs and related materials are compiled here. Inside Higher Ed provides a good overview and discussion of the legal and practical issues involved here.

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On March 2, 2010, the Ninth Circuit Court of Appeals affirmed a Hawaiian district court decision denying the request of applicants to the Kamehameha Schools to proceed anonymously in a lawsuit challenging the school’s admissions policy, and further affirmed the district court’s dismissal of their claims for failure to identify themselves.   

The plaintiffs were prospective students, applicants to the Kamehameha Schools, the largest independent school system in the United States, comprised of nearly 7,000 students.  Princess Bernice Pauahi, the last descendant of the Hawaiian monarchy, established the school system in 1884, and since that time the school has stood as a bastion of Hawaiian culture.  The Kamehameha Schools’ admissions policy explicitly provides that all qualified applicants with Hawaiian blood must be admitted to the school before any non-native Hawaiian applicants.

When plaintiffs filed suit against Kamehameha Schools claiming the admissions policy constitutes unlawful discrimination, they requested permission to proceed anonymously.  Plaintiffs based their request for anonymity on threats made against them on the internet, past threats of violence against others in similar lawsuits, and specific incidences of native Hawaiians committing violent crimes with racial overtones against non-natives. The district court denied plaintiffs’ request for anonymity, and then dismissed the case after plaintiffs failed to disclose their identities.

The Ninth Circuit affirmed, holding that that district court did not abuse its discretion in denying the request for anonymity and dismissing the case.  In reaching its conclusion, the appellate court considered the five factors that the district court balanced in determining whether to allow plaintiffs to proceed anonymously over Kamehameha’s objection: (1) the severity of the threatened harm; (2) the reasonableness of plaintiffs’ fears; (3) plaintiffs’ vulnerability to such retaliation; (4) prejudice to Kamehameha; and (5) the public interest. 

According to the Ninth Circuit, the district court did not abuse its discretion in finding plaintiffs’ fear of harm was unreasonable, in part because “many times people say things anonymously on the internet that they would never say in another context and have no intention of carrying out.”  In light of the strong general presumption that parties should conduct litigation in their own names, based in part on the public’s right to open courts, the district court did not abuse its discretion in finding that the public interest outweighed plaintiffs’ interest in proceeding anonymously.

However, it should be noted that the Ninth Circuit indicated that had the district court reached the opposite result, the Ninth Circuit would likely have affirmed that opposite result as well, finding no abuse of discretion: “As an appellate court, we are constrained by the applicable standard of review.  Had the district court found that anonymity was appropriate, we likely would have concluded that the district court did not abuse its discretion.”

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On February 19, 2010, the Fourth Circuit Court of Appeals affirmed the dismissal of discrimination and retaliation claims filed by a Morgan State University professor.

By way of background, before filing suit in federal court on a claim of discrimination under Title VII of the Civil Rights Act of 1964, a claimant generally must “exhaust her administrative remedies.” To do so, she must file a complaint with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged discriminatory act. In the alternative, that individual may file a complaint with certain state or local administrative agencies within 300 days of the alleged discriminatory act.

Rose Ure Mezu, an African American woman of Nigerian origin and Igbo ethnicity, served as a an associate professor at Morgan State University. In 2004 and 2005, Mezu applied for promotion to full professor, but she was denied. Morgan State’s denial of Mezu’s application came in an April 6, 2006 letter from Morgan State University President, Dr. Earl Richardson.

In the same letter, Dr. Richardson reminded Mezu of her right to an internal appeal. Mezu appealed, and was again denied in September 2006. Under Morgan State policy, Mezu had the opportunity for further internal appeal, but apparently did not further pursue the matter internally.

Mezu filed a charge with a local administrative agency, alleging that Morgan State had denied her tenure based on race and national origin in violation of Title VII of the Civil Rights Act of 1964. She filed her administrative charge on March 25, 2007—critically, more than 300 days after Dr. Richardson’s April 6, 2006 correspondence denying Mezu’s application for tenure.

After the EEOC issued Mezu a right to sue letter, Mezu filed suit in federal court. On Morgan State’s motion, the court dismissed Mezu’s Title VII claim as time barred, based on Mezu’s failure to file a complaint with the applicable local agency within 300 days of the alleged discriminatory act—Dr. Richardson’s April 6, 2006 letter of denial.

On appeal, the Fourth Circuit Court of Appeals affirmed because the discrete act forming the basis for Mezu’s claim fell outside the 300-day window preceding her March 25, 2007 complaint. The Fourth Circuit rejected arguments that the continuing internal appeals process at Morgan State affected the limitations period: “The time the initial employment decision was made and communicated triggered the commencement of the limitations period despite the pendency of the internal appeal and the possibility of a reversal of the initial decision.” The court also rejected Mezu’s retaliation claim, raised for the first time in federal court, because Mezu could not “attach her retaliation claim” to any claims properly before the court.
 

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On February 10, 2010, a federal jury in Oregon awarded former assistant professor Paula Rogers $162,335 in her discrimination and retaliation lawsuit against the University of Oregon (“University”) and several University employees.

Rogers worked as an assistant professor in the University’s East Asian Languages and Literatures Department from 2001 to 2006. According to the Eugene Register Guard, Rogers, who is half-American and half-Japanese, filed grievances with the Oregon Department of Administrative Services and Dean of the University’s College of Arts and Sciences, Joe Stone, in February 2005, alleging she endured discrimination because she was only half-Japanese.

According to Rogers, three of her superiors–Noriko Fujii, Maram Epstein, and Marjorie Woollacott–learned of the grievances shortly after they were filed. Allegedly in retaliation for her complaint of discrimination, Fujii and Epstein voted not to extend Rogers’ employment contract for three additional years. The University awarded Rogers only a one-year contract, while a similarly situated co-worker, who was pure Japanese and had not filed any grievances, received a three-year contract despite an allegedly weaker resume.

Rogers filed suit alleging hostile work environment, disparate treatment, and retaliation against the University and Fujii, as well retaliation claims against Epstein, Woollacott, Stone, and Wendy Larson, who was also Rogers’ superior.

The jury found for Rogers on her hostile work environment claim against the University and awarded her $117,333 in economic damages and $15,000 in non-economic damages. The jury awarded an additional $30,002 to Rogers for her claims of disparate treatment, hostile work environment, and retaliation against Fujii. However, the jury rendered a defense verdict on all other claims against the University, as well as on all claims against Epstein, Larson, Stone and Woollacott.

According to a February 16, 2010 article from The Register Guard, Rogers said that she felt “vindicated by the federal jury’s verdict but is still paying a high price for the unfair treatment.” Rogers now teaches linguistics in Taiwan, while her husband, William Ayres, remains a professor at the University.