The Volokh Conspiracy
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Professor's Lawsuit, "Focused on Discrimination Related to Positionality Across Multiple Marginalized and Vulnerable Communities," Fizzles
I wrote about the case in July (the quote in the title of this post, as of the previous one, is from one of plaintiff's motions):
The plaintiff in Schoene v. Rice Univ. filed the complaint (alleging sexual orientation discrimination, disability discrimination, breach of contract, and constructive discharge) under his own name, but then moved to retroactively pseudonymize it five days later. The problem is that longstanding Fifth Circuit precedent is quite clear that employment discrimination plaintiffs generally must sue under their own names, notwithstanding the argument that this can cause them professional harm. And while plaintiff claims that he's facing not just "professional harm" and "stigmatization," but also unspecified "privacy, safety, and serious health consequences as case implicated medical diagnosis, as well as personal issues of both sexuality and disability," that too is generally not enough for pseudonymity.
Plus retroactive pseudonymity is generally even harder to get. And even when courts are potentially open to pseudonymity claims, for instance when there's real evidence of risk of physical or mental harm, or unusually strong privacy claims, they generally require some pretty specific, concrete evidence: General claims of "discrimination related to positionality across multiple marginalized and vulnerable communities" usually don't cut it.
The court unsurprisingly denied the motion to proceed under a pseudonym, though without a detailed opinion. Note that plaintiff, a humanities professor, is pro se; but his faculty web site says he studied law at a leading Canadian university, he was the editor-in-chief of his law school's journal, his teaching and scholarly interests include some law-related subjects (such as "Queer Ecojustice" and "Law and Literature").
I've since followed the case, and can report that the complaint was dismissed, but on the most banal of grounds—timeliness. From Judge Kenneth Hoyt's order Friday:
The plaintiff entered into an employment agreement with Rice University. On or about July 13, 2023, he tendered a letter of resignation to the Dean and Department Chair of the University. Apparently, the plaintiff had second thoughts and sought to be rehired on or about July 31, 2023. On or about August 1, 2023, the University notified the plaintiff that he would not be rehired.
The plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in 2024. However, the EEOC determined that the time for filing a charge commenced on or about August 1, 2023, and ended, 300 days later on May 27, 2024. The record shows that the plaintiff filed his charge with the EEOC on August 17, 2024. The EEOC, therefore, dismissed the plaintiff's charge as untimely and issued a formal notice. These facts are undisputed….
In his response to the University's motion to dismiss, the plaintiff asserts that the period for filing his charge should be "tolled" in light of the fact that he made timely contact with the EEOC, although, admittedly he did not file his charge within the 300-day window. The plaintiff also argues that because he sought to informally resolve this matter with the University, the time for filing his charge should be tolled during that period. In addition, he argues, the matter is not time barred because the University's conduct constituted a "continuing violation" under that doctrine.
Next, the plaintiff asserts that he did not actually or formally resign because the University policy requires that resignation letters to be served on the University Provost, which he did not do. Lastly, the plaintiff asserts claims that the University breached its contract with him by failing to acknowledge his potential illness, and because its failure to hire his partner as had been done with other candidates….
The plaintiff's claims, that he was discriminated against, that the University breached its contact to hire his partner, that the time to file his EEOC charge should be equitably tolled and that he "might" have been disabled or was on the threshold of a disability do not toll his obligation to file his EEOC charge within 300 days of the offending events. The case law is clear, an aggrieved party must file his charge within 300 days of the offending event in order to avoid the Statute of Limitations….
Jeffrey William Barnes and Robinson Vu represent Rice.
