?Takeaway: This opinion articulates three different theories by which an employee might establish that an employer’s stated reasons for the employee’s termination are pretexts for unlawful discrimination. Although the employee’s arguments in this case were rejected, employers are well-advised to review pending disciplinary actions in light of these theories: Is the stated reason for the action the real reason? Were others disciplined similarly for similar actions? Was the investigation conducted properly?
?A private college in Little Rock, Ark., fired a nontenured female faculty member after she allegedly called a student “retarded” for using a cellphone during class. The plaintiff sued for sex discrimination, retaliation and breach of contract.
One day during class, the professor spotted a student using a phone and took the student’s quiz away. After the student left the classroom, the professor allegedly used a profanity and said that “it was insane and retarded for anyone to think it was OK” to use their phone during a test.
The student’s girlfriend then left the class and told him that the professor had called him the ableist slur. The student returned to the classroom, dared her to call him that to his face, and allegedly insulted her in vulgar, sexist language. Later, the professor’s nephew confronted the student, asking what he’d said about her. A physical fight ensued.
The college opened an investigation, during which the professor failed to disclose that one of the student’s attackers lived with her and that she had been with each of them shortly before the attack. Moreover, she asked students to support her version of the classroom events in their statements. Concluding that the professor “lack[ed] the appropriate judgment” to teach, the college terminated her employment for coaching students on their statements, using an ableist slur in class, and failing to disclose material information about her relationship to the individuals who attacked their fellow student.
The professor sued under Title VII of the Civil Rights Act of 1964 and the Arkansas Civil Rights Act for sex discrimination and retaliation. The trial court granted the college’s motions for summary judgment on both claims, and the appeals court upheld those motions.
Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lacking direct evidence of discrimination, the professor needed to prove her claim circumstantially. Assuming she established a prima-facie case of discrimination, the college offered legitimate, nondiscriminatory reasons for its decision, the court said. The court rejected the professor’s three theories that the college’s reasons were pretextual.
The professor claimed the school’s anti-harassment policy could not have played a role in her firing because she never violated it. The student himself did not have a disability, and she merely used the ableist slur in an “instructional manner.” By its terms, however, the policy covered insulting or stigmatizing language directed at “identifiable group[s],” and it was irrelevant whether the student involved had a disability because the professor’s words stigmatized or insulted the entire group.
The plaintiff also argued that colleagues were treated better. To prevail on this theory, the professor had to identify a man who engaged in the same conduct under similar circumstances and was treated better than she was. The two examples offered involved men who had used coarse language but did not, during class, single out a vulnerable group of students in a negative and demeaning way.
The professor also claimed the investigation was botched. A flawed investigation of an incident involving an employee in a protected group can support a claim of discriminatory intent. “But cutting corners hardly supports a finding of pretext when there was not much to investigate,” the court said. The professor made her derogatory comments in front of a classroom full of students. Moreover, the procedures she claims the college failed to follow applied to her own complaint against the student, not its handling of her termination, so any inference of discriminatory intent was especially weak.
The professor also argued that the college created a hostile work environment. Prevailing on such a claim requires evidence of severe and pervasive harassment sufficient to alter conditions of employment—that is, that the workplace was permeated with discriminatory intimidation, ridicule and insult. The professor offered only a few scattered incidents: the precipitating incident involving the student’s cellphone use, his allegedly threatening looks at her when their paths crossed later and the college’s attorney snatching her phone away during a meeting. Separately and together, these instances were nowhere close to severe or pervasive enough to meet the legal standard, the court said. Moreover, the professor’s role in provoking these incidents undermined her claim against the college.
Walker-Swinton v. Philander Smith College, 8th Cir., No. 22-1547 (March 13, 2023), petition for panel rehearing and en banc rehearing denied (April 18, 2023).
Margaret M. Clark, J.D., SHRM-SCP is a freelance writer in Arlington, Va.
