The Volokh Conspiracy
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From a decision Tuesday in Faure v. Ohio State Univ. by Judge Edmund Sargus (S.D. Ohio):
Mary Faure worked for OSU for 30 years, and ultimately became Director of Engineering Technical Communications for the Engineering Education Department at the OSU College of Engineering. "In this role, she led a team of lecturers and worked with the EED Career Services Department to help students apply for jobs."
David Williams, Dean of the OSU College of Engineering, selected Dr. Monica Cox as the Chair of the EED soon after the EED's formation. On January 25, 2016, Dr. Cox and Ms. Faure met to discuss Ms. Faure's Technical Communications program and the team of lecturers Ms. Faure supervised. During the meeting, Ms. Faure alleges that Dr. Cox said, "I despise white people" multiple times and discussed "barriers and disadvantages that white people had put up against her in her previous life."
According to Ms. Faure, Dr. Cox "pointed her finger at [Ms. Faure] and said, 'I have been at a disadvantage my whole career because of you people.'" Dr. Cox recounted an experience where a colleague at Purdue University made an insulting remark, but the chair of her department "did not deal with these old white men for their insult." Ms. Faure avers that she told Dr. Cox the comments were "racist and unprofessional" and that the discussion was not related to the Ms. Faure's program. Ms. Faure further alleges that Dr. Cox said, "Mary, Mary and then she went like this at me (pointed her finger) and I pushed back in my chair and she said, 'if you repeat that I'll deny it.' I thought she was going to strike me." Dr. Cox admits that she discussed her background at Purdue with Ms. Faure during this meeting but denies making statements referring to "you people" or "old white men."
Ms. Faure and other EED employees allege that, throughout 2016 and 2017, Dr. Cox made racist statements about white people such as: there were "so many old white men in the EED;" "white men in the EED held too much power;" "white people are too sensitive;" referring to white individuals in the EED as "big lips" and "Colonel Sanders;" calling a white male professor "a bully" and said, "he talks too much in meetings." An administrative assistant who worked for Dr. Cox for 16 months stated that Dr. Cox made race-based comments at least once a month and would warn her, "if you say I said this, I'll deny it." …
Faure claims she "complained to HR and EED leadership about Dr. Cox several times between February and December 2016," and was then fired. She sued, claiming the real reason for the firing was race discrimination, retaliation for her discrimination complaints in violation of Title VII, and retaliation in violation of the First Amendment; and the court allowed the claims to go to a jury:
[R]eading [the] conflicting accounts in a light most favorable to Plaintiff and drawing all inferences in her favor [which is the standard for a motion for summary judgment -EV], a reasonable jury could find that Dr. Cox was the primary decision-maker in Ms. Faure's termination so that "a racial minority took an adverse action against a [non-minority plaintiff]" or was the cause of the discriminatory information flow relied upon by the primary decision maker, she thus satisfying the prima facie first element's background-circumstances requirement….
[And w]hile [Dr. Cox's statements about race quoted above] may not suffice as direct evidence of discrimination, they are sufficient for a jury to infer discrimination. The Plaintiff therefore has shown a prima facie case of reverse race discrimination.
The court likewise concluded that there was enough evidence to go to the jury on whether OSU's stated "legitimate, non-retaliatory reason for terminating Plaintiff's employment—namely, her failure to adapt to the new departmental transition and inability to communicate professionally with her superiors and subordinates"—was a pretext. OSU argued that,
Ms. Faure's spread misinformation multiple times which caused lecturers to fear that they would lose their jobs and complained to EED staff about issues that should have been addressed to Dr. Cox. Ultimately, HR concluded that Plaintiff's "actions and behavior have created an environment of low morale, uncertainty, fear of job security, concerns for the future of the ETC, uncertainty of goals and priorities, and distractions to departmental leadership and employees."
But the court concluded that "Plaintiff has established a genuine issue of material fact as to whether she was fired because of her race," largely because,
[T]here is sufficient evidence that OSU considerably deviated from its protocol and there was harm to Ms. Faure. Ms. Faure was not placed on a Performance Improvement Plan or formally warned that she could be terminated even though there is evidence that OSU employees have a clear expectation that they will receive a warning before termination. Her contention is supported by another OSU staff member's testimony that he had been part of the termination process for "at least a couple dozen" employees and every one of them was warned that failure to correct behavior might result in termination.
The court also concluded that, for similar reasons, Faure had provided enough evidence to go to the jury on the question whether OSU had retaliated against her "because she 'opposed' a practice that violates Title VII"; such retaliation is itself forbidden by Title VII. And the court likewise allowed Ms. Faure's claim of retaliation for First-Amendment-protected speech to go forward:
The First Amendment prohibits retaliation by a public employer against an employee based on the employee's protected speech…. To establish that she engaged in constitutionally protected speech, Plaintiff must show that 1) her speech "relates to a matter of public concern," and that 2) her "free speech interests outweigh the efficiency interests of the government as employer." …
Speech "relates to a matter of public concern" if it relates to any matter of political, social, or other concern to the community…. The Court finds that Plaintiff's complaints that Dr. Cox made racially discriminatory comments and policies qualify as protected speech because "it is well settled that statements concerning … allegedly racially discriminatory policies involve[s] a matter of public concern." Boxill v. O'Grady (6th Cir. 2019). Ms. Faure's complaints about the workplace and Dr. Cox's leadership, however, are not matters of public concern. See, e.g., Burgess v. Paducah Area Transit Auth (6th Cir. 2010) (finding plaintiff's concerns relating to "the atmosphere of the office … poor business practices, management … " were not matters of public concern).
The Court now determines whether Plaintiff's free speech interest outweighs OSU's interest "in promoting the efficiency of the public services it performs through its employees." In balancing the parties' interests, courts consider "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Relevant factors include "the manner, time, and place of the employee's expression," as well as "the context in which the dispute arose."
Plaintiff contends that her statements were not disruptive. Defendants, in response, point to Ms. Faure's conversations with lecturers in which she allegedly told them not to trust Dr. Cox and Dr. Abrams, they should be worried for their jobs, and they were not valued members of the Department. According to Dr. Cox, at least four lecturers were allegedly concerned about their future with the EED because of Ms. Faure. Dr. Abrams eventually reported the conversations to HR, saying that Ms. Faure was "venting to her faculty and other EED faculty/staff about [Dr. Cox] and me. It's unprofessional and it's causing climate issues."
The evidence that Defendants point to as disruptive is Ms. Faure's speech about lecturers potentially losing their jobs and the EED's management style, not her speech about Dr. Cox's alleged statements concerning race. The relevant speech for this analysis is Ms. Faure's race-based comments because that is the speech that relates to a public concern. There is no evidence that this speech caused a disruption or interference in OSU's operations or harmony in the workplace. The Court therefore finds that Ms. Faure's interest in complaining to HR about Dr. Cox's allegedly racist comments outweighs Defendants' interests in efficiency and harmony in the workplace. Ms. Faure engaged in constitutionally protected speech when she made complained about Dr. Cox's allegedly racist statements….
Defendants argue that Plaintiff cannot establish that her November 2016 email to Dean Williams was a motivating factor for her termination because she was terminated seven months later, erasing any inference of causation provided by temporal proximity. Defendants also argue that they would have terminated Plaintiff regardless of her protected conduct.
Plaintiff argues that her termination was at least in part motivated by her many complaints starting in January 2016 and going to December 2016 about Dr. Cox's allegedly racist statements. Plaintiff alleges that Dr. Cox's behavior towards her changed in the summer of 2016 after she complained about Dr. Cox's allegedly racist statements. She further alleges that Dr. Abrams told her that Dr. Cox did not want her going to HR anymore with complaints about racist statements. There is also evidence that OSU's HR did not act to address Plaintiff's complaints about Dr. Cox's statements and that she would not have been fired if Dr. Cox wanted her to stay.
Overall, Defendant's reason for termination was that Ms. Faure was disruptive and unprofessional. Viewing this evidence in a light most favorable to Plaintiff, the Court finds there is a genuine issue of material fact as to whether that Ms. Faure's repeated complaints about Dr. Cox's alleged racism was a motivating factor in their decision to terminate her….