A federal district court in Oklahoma recently denied a university’s motion for summary judgment on the Title VII race discrimination and retaliation claims of a professor who was denied tenure after complaining about racist Facebook comments made by three other professors, two of whom were allowed to vote on his tenure application. The employee’s Sec. 1981 claims against several individuals also proceeded based on evidence that a clearly established constitutional right was violated. However, his state law claims failed. See Hannah v. Northeastern State University (February 5, 2015).
The employee, who is Native American, was hired as an associate professor of English at Northeastern State University to begin in January 2010. Soon thereafter, he was appointed chair of the language and literature department. A colleague, who previously served as assistant chair but was prevented from serving as chair under a nepotism policy because his wife was also a professor, commented on the appointment on Facebook. His comments included that he “salutes” the university’s direction; “Good luck with that, then!” and, in response to another comment, “There will be an ‘election’ the first week of February. They’re making a f*cking indian chair.” In July 2010, the same colleague, his wife, and a third professor posted several disparaging Facebook comments on the employee’s choice of outdoor venue for a department meeting. At one point, the wife stated that “our chair will bring all the handbaskets we need. He’s probably woven them himself.” And in response to a post about who attended, she wrote “Maybe they were all eaten by wolves.” Also, in response to a comment about not looking forward to the new academic year, the third professor wrote: “Wonder if they sell body armor for use under regalia.” The employee reported the posts to the university. It found them “interpretable as racial references” but also found that it appeared they “were not intended to be racist or threatening at the level of a hate crime but were instead a poor attempt at showing dissatisfaction and mistrust” of university administrators and the selection process. All three professors were reprimanded; the wife entered an agreement under which she resigned. In January 2011, the employee emailed HR that: “I think the time has come for me to leave NSU. This seems to be an unsafe place for American Indians.” He did not resign, though he did resign as department chair. The following summer he emailed HR regarding more Facebook posts by the former assistant chair and his wife, though he did not provide proof of the posts.
In the fall of 2012, the employee submitted his application for tenure. The department chair sent it to the tenure committee, which consisted of seven people, including the two remaining professors who had made the racist Facebook posts. Both voted to deny tenure; the final vote was a 3/3 split. The department chair forwarded the vote to the dean, along with a letter summarizing what he thought were the employee’s strengths and weaknesses. The chair did not write in favor or against the application. The dean denied the application, explaining in an affidavit that the employee had “polarized the Department and displayed hostility toward other faculty and staff.” He claimed he was aware of conflicts but was “unaware of the specifics regarding the Facebook postings.” He also stated that he was aware of a “false accusation” by the employee in an email stating the employee had “reason to believe” the department chair had not forwarded his tenure application. The university provost and the president reviewed and concurred in the denial of tenure. The employee appealed to HR but not to the grievance committee. Thereafter the university’s threat assessment team put him on paid administrative leave for the remainder of his contract.
Denying summary judgment on the discrimination and retaliation claims against the university, the court found the denial of his tenure and termination were adverse actions. It also found a causal connection considering professors who made racist Facebook remarks about him participated in the tenure vote. Moreover, the dean showed possible animus when he copied the department chair in a reply to the employee’s private message about the chair. And notwithstanding the lapse in time, it was “more than plausible and rather likely that after two years [the two professors] still held some animosity against [the employee] for his reporting their Facebook posts, which resulted in their reprimands and possibly the resignation of [one professor’s] wife.” The court also denied summary judgment on the race-based HWE claim. The Facebook posts were evidence of hostility that remained prevalent in the department. Then two of the professors who made posts voted against the employee’s tenure application. While the university’s initial action of reprimanding the two professors was reasonable, it did not take appropriate steps to end any remaining hostility and allowed the two professors to participate in the vote. Whether the remaining hostility was racially or otherwise motivated was a jury question.
The employee also asserted Sec. 1981 race discrimination claims against the two professors who made the Facebook comments and later participated in his tenure vote, and against the department chair, dean, provost, and president. The defendants argued that they were entitled to qualified immunity but the court disagreed. He submitted ample evidence raising questions of fact on whether his clearly established constitutional rights were violated. The court also pointed out that, having done so, he had only to satisfy the same formula and elements applied in to Title VII discrimination claims and he did so for the same reasons discussed with respect to his discrimination claim against the university. Summary judgment was therefore denied on his Sec. 1981 claims as well. The court granted the motion with respect to the employee’s claim that the university violated Article 2, section 2 of the Oklahoma Constitution, which grants the right to “the enjoyment of the gains of [his] own industry.” Although he was denied tenure at the university, he was not prevented from following his chosen occupation elsewhere. His negligence and breach of contract claims against the university also failed as a matter of law because he did not first present his claim to the state and thus did not satisfy the procedural requirements of Oklahoma’s Governmental Tort Claims Act.