Malia LiVolsi began working as an Academic Advisor for the University of Texas at Austin’s (UT) Butler School of Music in March 2020. She alleged that from late Fall 2021, she experienced sex discrimination and harassment from John Turci-Escobar, the Assistant Dean for Undergraduate Studies-College of Fine Arts and one of her supervisors.
In particular, during a Zoom meeting with LiVolsi and other women, Turci-Escobar said, “Oh all three women are here. I’m scared!” He discussed how his wife caused difficulties regarding female staff. In front of prospective students and parents, he commented on LiVolsi’s appearance, calling her “goth” while looking her up and down, and mentioned her “fancy Lexus.” He suggested LiVolsi needed a master’s degree to advance her career. When LiVolsi was off work and asked him to contact another employee, he responded that he preferred talking to her. Turci-Escobar also allegedly approached LiVolsi while she was alone, inquired about her recent surgery and reproductive organs, and made suggestive comments about her using his pull-up bar. LiVolsi alleged that these comments were often made in close physical proximity.
LiVolsi reported her concerns to the Director of Human Resources, who directed her to the Title IX Office. However, the Title IX office informed her they only assist with student concerns.
LiVolsi’s distress led her to seek psychiatric treatment, and she was allowed to work from home. When she later contacted the Title IX office again, she closed her case out of fear of retaliation. LiVolsi alleged that Turci-Escobar’s behavior continued, including assigning her additional work and being cold and demanding.
After taking FMLA leave from February to May 2023, LiVolsi returned to work, but Turci-Escobar’s behavior allegedly persisted. Ultimately, LiVolsi resigned from her position.
LiVolsi filed claims under Title VII of the Civil Rights Act for discrimination, sexual harassment, and retaliation.
UT filed a motion to dismiss on multiple grounds. UT argued: (1) LiVolsi’s Title VII claims were time-barred for failure to exhaust her administrative remedies; (2) LiVolsi failed to plead facts that demonstrate a hostile work environment due to sexual harassment; (3) LiVolsi failed to allege a plausible discrimination claim under Title VII; and (4) LiVolsi failed to allege a plausible retaliation claim under Title VII.
Exhaustion of Administrative Remedies
Exhaustion under Title VII occurs when an individual files a timely charge of discrimination with the EEOC, the charge is dismissed by the EEOC, and the EEOC informs the individual of the right to sue. Timely filing an EEOC charge is a precondition to filing a suit in federal district court.
The period for filing an EEOC charge where the complainant has also instituted proceedings with a state or local agency period is 300 days. However, when a claim is based on a continuing pattern of harassment, rather than a discrete instance, the “continuing violation” doctrine may apply to extend the statute of limitations. To take advantage of the continuing violation doctrine, a plaintiff must show (1) separate but related acts that (2) create a continuing violation.
LiVolsi filed a charge with the EEOC on May 17, 2023. UT argued that any claims arising from actions before July 21, 2022 should be dismissed due to the 300-day filing deadline. However, the Court rejected this argument, applying the continuing violation doctrine. The Court ruled that since some of Turci-Escobar’s alleged actions occurred within 300 days of LiVolsi’s EEOC complaint, the entire period of the alleged hostile work environment could be considered. Additionally, LiVolsi’s retaliation claims included specific acts occurring from December 2022 through May 2023, which were well within the 300-day window. As a result, the Court determined that LiVolsi’s claims were not barred for lack of exhaustion of administrative remedies.
Hostile Work Environment
To establish a prima facie case for a hostile work environment due to sexual harassment by a supervisor, a plaintiff must show: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; and (4) the harassment affected a term, condition, or privilege of employment.
To determine if the environment was “hostile” or “abusive,” the Court considered all circumstances, including: the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating; and whether it unreasonably interfered with work performance.
The Court found that LiVolsi plausibly alleged at least eight instances of unwelcome comments, making it plausible that Turci-Escobar’s behavior was frequent enough to rise to the required level of severity. The Court noted that LiVolsi alleged the comments were often made in a physically intimidating manner, adding to their severity. The Court considered that some of Turci-Escobar’s behavior directly affected LiVolsi’s work performance, such as ignoring her communications regarding work tasks.
Regarding whether the conduct was based on sex, the Court stated that a fact finder could reasonably conclude the conduct was based on animus for the plaintiff’s protected class, especially when considering incidents in the context of others more closely connected to the protected characteristic.
The Court found that LiVolsi had sufficiently pleaded facts that plausibly rise to the level of objectively offensive and hostile conduct, allowing her claim to survive the motion to dismiss.
Discrimination
The Court next addressed UT’s argument that LiVolsi failed to allege a plausible discrimination claim under Title VII. For a discrimination claim, a plaintiff must allege sufficient facts to show (1) an adverse employment action that was (2) taken against a plaintiff because of her protected status.
LiVolsi argued that the harassment she experienced amounted to a constructive discharge, which is an adverse employment action. To establish constructive discharge, a plaintiff must show working conditions were so intolerable that a reasonable person would feel compelled to resign.
The Court found that LiVolsi’s allegations were sufficient to state a plausible claim for constructive discharge. LiVolsi alleged ongoing harassment, humiliation, and badgering by her supervisor, which ultimately led to her resignation. The Court noted that the severity and pervasiveness of the alleged conduct could plausibly create an intolerable work environment for a reasonable person. Furthermore, LiVolsi alleged that the actions were directed only toward her and not her male peers.
Retaliation
To establish a retaliation claim, a plaintiff must allege: (1) she participated in an activity protected by Title VII; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse employment action.
UT argued that the incidents LiVolsi complained about did not constitute adverse employment actions. However, the Court already had found that LiVolsi sufficiently plead constructive discharge, which constituted an adverse employment action. Therefore, the Court found that the retaliation claim should not be dismissed.
The Court denied UT’s motion to dismiss as to all of LiVolsi’s claims.
LiVolsi v. Univ. of Tex. at Austin (W.D.Tex. Nov. 15, 2024) 2024 U.S.Dist.LEXIS 209019.
Note: This case illustrates the multiple causes of action an employee can bring under Title VII.