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Diverse Docket: Weatherford College Prevails in Discrimination Suit

Diverse DocketA federal appeals court has upheld a Texas community college’s defense against discrimination and retaliation charges by the former chair of its Kinesiology Department.

The court’s decision outlined a series of conflicts that “began as soon as Weatherford College hired” Dr. Karen Lopez Austen as a professor and department chair in 2007 and continued until her contract wasn’t renewed in 2010.

As examples:

· The assistant men’s basketball coach complained that Austen “made improper comments regarding his physique, initiated confrontations with him and often secretly took photographs of him as he was working out.”

· A department secretary told police that Austen behaved inappropriately by inviting the secretary’s daughter to her office, showing inappropriate photos and asking to measure the daughter with a measuring tape.

· An internal complaint by the same secretary accused Austen of belittling, threatening and stalking her and creating “an unrelenting hostile work environment on a daily basis.”

Later, the college’s athletic director “reported concerns regarding Austen’s aggressive and confrontational treatment” of a different secretary, and Austen’s dean reprimanded her for not following the college’s purchasing policy, the Fifth Circuit U.S. Court of Appeals said.

In its decision, the court said Austen received reprimands for unprofessional behavior after storming out of the senior vice president’s office, for contacting a student she allegedly asked to make a false report and for unwillingness to participate in administrative meetings.

The college demoted her from department chair.

Meanwhile, Austen filed her own complaints alleging sex discrimination and sexual harassment by the athletic director, the assistant men’s basketball coach, a secretary and Weatherford’s administration. Afterwards, she complained to the EEOC of retaliation.

Under a 2009 settlement, Weatherford agreed to release all claims if the college dropped its current investigations and removed adverse performance notices and disciplinary warnings from her personnel file. The college did not admit liability.

“The following year, however, the complaints against Austen continued to roll in from old and new fronts,” the appeals court said.

Among them: A coach complained that she made false accusations about him. An adjunct reported that Austen “yelled at her, shut a door in her face, made inappropriate comments and made her feel harassed.” And students complained about an inappropriate sexual comment and about a threat to fail them if they didn’t stay after class.

The decision detailed other situations, such as an incident at the campus bookstore where she told an African–American student, “You’ll have to go to another register because the cashier doesn’t wait on Black people.” She also told a Hispanic student that the bookstore “charges Hispanics 20 percent more” and told an overweight student “where the lo-cal snacks are,” the court said.

The college refused to renew her contract based on unprofessional conduct.

She sued Weatherford for violations of Title VII and Texas sex and race discrimination laws and for retaliation in violation of the First Amendment. A U.S. District Court judge dismissed the case.

In a unanimous decision, the three-judge appeals panel ruled that Austen failed to “rebut the legitimate reasons for termination offered by the college.”

It said, “In light of the overwhelming number of documented, legitimate reasons for termination, Austen failed to show either a causal connection or pretext.”

She also offered no proof that the college had replaced her with someone outside her protected class, it said.

Nor was there a basis for the First Amendment claims. Even if her allegations of sexual harassment and discrimination are considered speech about a matter of public concern, there was no evidence to “rebut the legitimate reasons for nonrenewal.”

Last, the court rejected her claim that the college violated the settlement agreement.

Suit moves forward

A college in Allentown, Penn., must continue to defend a disability discrimination suit by an alumnus whose graduation date was delayed, a federal judge has ruled.

U.S. District Judge Lawrence Stengel denied a bud by Muhlenberg College to dismiss Seth Hershman’s Americans with Disabilities Act claims but did toss out allegations of emotional distress.

In November 2010, according to the decision, Hershman began to suffer from depression and sought treatment. College administrators told Hershman and his parents that he could graduate as scheduled in May 2011 if he attended classes and finished his coursework.

However, he failed to meet attendance requirement for one course whose professor refused to make any accommodation, the suit asserts. In addition, the department chair allegedly refused to let him substitute credit from another class to meet the prerequisite.

Muhlenberg let Hershman walk at the commencement ceremony, but the program included an asterisk next to his name indicating a later graduation date.

He received his diploma in October 2011 after meeting the graduation requirements, the decision said.

Stengel said it’s premature to decide whether the college’s refusal to let Hershman substitute credits was reasonable without more facts to show whether the requested substitution “would fundamentally alter the college’s services. Furthermore, Muhlenberg completely ignores that the professor refused to make an accommodation which would allow Hershman to pass the class,” he said.

Stengel also said he was “unpersuaded that failure to accommodate Hershman’s disability is an academic decision entitled to deference.”

As for emotional distress, Stengel said the relationship between students and their college “does not obviously hold the potential of deep emotional harm” and what Hershman allegedly suffered “is not the type of visceral or agonizing pain” that might justify a damage award.

“Certainly, publication of one’s failure to complete his graduation requirements is embarrassing, but this is the kind of harm that reasonable people are expected to bear,” the decision said.

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