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Diverse Docket: Appeals Court Sides With Santa Clara University

According to the court, the university terminated Conchita Franco Serri in 2007 “because she failed to produce affirmative action plans for three consecutive years, even though her job required that she produce an affirmative action plan annually.”According to the court, the university terminated Conchita Franco Serri in 2007 “because she failed to produce affirmative action plans for three consecutive years, even though her job required that she produce an affirmative action plan annually.”

The former director of affirmative action at Santa Clara University has failed to convince the California Court of Appeal to reinstate her discrimination and harassment suit.

According to the court, the university terminated Conchita Franco Serri in 2007 “because she failed to produce affirmative action plans for three consecutive years, even though her job required that she produce an affirmative action plan annually” and “because she made misrepresentations about the plans that she had failed to prepare.”

Serri, who is Puerto Rican, had held the position since 1992.

She sued the university, its president and other top administrators, alleging wrongful discharge based on race and ethnic origin, as well as defamation, emotional distress, breach of contract and other claims. She asserted that while affirmative action director, she never received data necessary to complete the plans and that requests to her superiors for that information went unfulfilled.

A superior court judge dismissed the case without trial, and the appellate panel unanimously upheld that decision in an opinion by Justice Miguel Márquez.

On appeal, Serri cited expert testimony several years after the termination that her failure to complete the reports did not adversely affect the university. But the court said that testimony was irrelevant to the discrimination claim and whether the university’s explanation for the termination was a pretext for discrimination.

“Before she was terminated, Serri told the university her failure to prepare an affirmative action plan could have adverse consequences, including the loss of federal grants,” the court said, and the fact that the university “ultimately suffered no adverse consequences” did not justify a trial.

“We conclude that the University met its burden of establishing that it acted in good faith and had reasonable grounds for believing Serri engaged in gross misconduct when it decided to terminate her and that its decision was based on ‘fair and honest reasons,’” it said. “It cannot be reasonably asserted that termination for misrepresenting the status of an important report that impacted the work of other university departments was “trivial, arbitrary or capricious” or unrelated to the university’s business needs or goals.”


Disability suit rejected

A judge in Wisconsin has rejected federal disability discrimination and retaliation claims by a former student at Madison Area Technical College’s physical therapy assistant program.

U.S. District Judge Barbara Crabb left open the possibility that Kirsten McKee can pursue state law claims in state court.

According to the decision, Kirsten McKee has a condition called essential tremor that involves involuntary shaking of her head. The tremors can affect handwriting, voice, balance and ability to eat and swallow, particularly under stress.

McKee attended the college in Madison from 2010 to 2012 but didn’t identify herself as disabled and didn’t request any accommodations, Crabb said.

She left the program after twice failing a practical exam.

McKee’s suit accused the school of discriminatory and retaliatory actions. It accused instructors of mistreating her based on her disability, including one who allegedly mistreated her when the tremor caused her to lose her balance during a skills assessment. That instructor, the suit said, put her on an improvement plan, changed one test score and caused her to flunk two other exams.

In the decision, Crabb said the instructor may have been “unduly harsh during the skills assessment, but that is not enough to prevail on a claim under the Americans with Disabilities Act or the Rehabilitation Act.

“The undisputed facts show that McKee failed her exams because she made mistakes that implicated patient safety and that school policy required her to be dismissed after she failed the same test twice,” Crabb said.

The decision cited the program’s policy that a student who fails the same test twice will be dismissed and said McKee failed to produce evidence that the college had granted an exception to any student.

Gender bias suit denied

A unanimous appeals court has refused to reinstate a gender discrimination suit by a female Oklahoma City University part-time faculty member who was passed over in favor of a man for a tenure-stream position.

Dr. Anna Hamilton failed to demonstrate that the university acted illegally when it chose a male ABD applicant rather than her after an open search, the 10th Circuit U.S. Court of Appeals said.

OCU advertised for an assistant professor of rhetoric and director of forensics with what the court described as a “paramount interest in hiring a skilled, legacy-building debate coach.” The posting stated that a doctorate was required at the time of appointment.

Hamilton, whose teaching duties included coaching the campus debate team for two and a half years, was one of three finalists. The other two — a man with extensive debating experience who was hired and another woman who was not hired — both were ABD.

Hamilton’s suit claimed the successful candidate was not qualified because he lacked the required Ph.D. and asserted that the university ignored its own requirements and hiring policies in a rush to hire him.

A District Court judge threw out the suit.

In upholding that ruling, the appeals court said, “Stated concisely, both individuals and institutions can and will make mistakes in their hiring choices. But evidence of a mistaken or poorly informed employment decision is not, standing alone, suggestive of a discriminatory motive on the part of an employer. To support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong.

The fact that the Philosophy Department had no tenured female professors wasn’t enough to infer that the university’s hiring decision involved discrimination, the court said in an opinion written by Judge Carlos Lucero.

He said Hamilton presented no “statistically relevant information” for the court to use to determine “whether OCU’s hiring practices — in its philosophy department or elsewhere — have evinced even the slightest pattern of disparate treatment between comparable individuals.”

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