U.S. District Court Finds Title IX Provides Private Right Of Action In University Employee’s FMLA Retaliation Claim Related To Paternity Leave And Tenure

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jun 26, 2023

In 2011, Northern State University (University) hired Dr. Thomas Orr as a tenure-track professor for the Health Physical Education Department within the University’s School of Education. Dr. Orr served as the Department’s “coordinator,” a position with a heightened level of responsibility.  In 2015, the University hired Dr. Kelly Duncan as the Dean of the School of Education, despite Dr. Orr’s disagreement. During Dean Duncan’s first semester, she began to have issues with Dr. Orr and confrontations between her and Dr. Orr worsened over time.

In 2017, Dean Duncan hired a chair position that replaced Dr. Orr’s coordinator role. After this decision, Dr. Orr complained about the reduction of his role and suggested reinstatement. He also raised allegations of racist discrimination towards a former professor and mismanagement by Dean Duncan.

Soon after, Dr. Orr applied for promotion and tenure. Dean Duncan was on the tenure committee and did not recuse herself. A majority of members voted against Dr. Orr’s tenure application, one of whom was Dean Duncan, and the committee forwarded its recommendation to the President. The University evaluates its tenure decision based on teaching, service, and research. The University’s President denied Dr. Orr tenure status due to a lack of progress in his scholarship.

Around the same time Dr. Orr applied for tenure, Dr. Orr requested information about paternity leave from the head of Human Resources. She told him about the University’s policy allowing him to use six weeks of paid leave for his paternity leave. Dr. Orr filled out a Family Leave form stating that he intended to take zero to thirty days of leave.

Dr. Orr filed suit against the University, making several claims. The first claim alleged that the University violated the Family Medical Leave Act (FMLA) by interfering and retaliating against his use of paternity leave. He also alleged that this interference with his paternity leave was a violation of Title IX due to discrimination on the basis of sex. He also claimed that the University retaliated against him for opposing racial discrimination, violating 42 U.S.C. Section 1981 and the First and Fourteenth Amendments of the United States Constitution.

The United States District Court ruled that the University did not deny Dr. Orr FMLA benefits to which he was entitled, and therefore he had no legitimate claim of interference. Dr. Orr claims he only took six weeks of FMLA leave because the University’s policy only allowed him to use thirty days of paid sick leave (which translated to six work weeks), but he should have been able to use other available sick time. The Court concluded that Dr. Orr could not show that the University ever denied him an additional six weeks of FMLA leave because he never requested it.

However, the Court found that Dr. Orr could establish a prima facie claim of retaliation because the University made an adverse employment decision of denying his tenure after Dr. Orr had taken his paternity leave. Even though the President had a legitimate, nondiscriminatory reason to deny tenure, Dr. Orr was able to show that the alleged basis for denial could be a pretext, because the University first indicated that the reason for denial of tenure was Dr. Orr’s lack of collegiality then later stated that its reasons for denying him tenure were due to his substandard research record.

As for Dr. Orr’s Title IX claim that the University discriminated against him based on his sex because of his use of paternity leave, the Court ruled in favor of the University due to its legitimate nondiscriminatory reason to deny tenure. The University President stated that the reason he denied Dr. Orr’s tenure application was that he was deficient in the research category, and Dr. Orr admitted to this.

Finally, as to Dr. Orr’s claim that he made protected statements regarding Dean Duncan’s discriminatory treatment of another professor, the Court found that Dean Duncan was not entitled to qualified immunity. The Court concluded Dr. Orr could bring a First Amendment claim of retaliation against Dean Duncan and the University because they did not argue that Dr. Orr’s speech had an adverse effect on the efficiency of its operations, nor that its governmental interest outweighed Dr. Orr’s interest in his speech.

The court refused to reinstate Dr. Orr to his former position or decide on the matter of his tenure.

Orr v. S. Dakota Bd. of Regents, (D. S.D. 2023) No. 1:19-CV-01023-CBK, 2023 WL 3484207.

Note: The U.S. District Court of South Dakota decided this case, and therefore it is not binding in California. However, this case provides insight on how a court ruled on a University’s handling of an employee’s request for tenure and paternity leave around the same time. This case shows the importance of articulating legitimate, nondiscriminatory reasons for denying a faculty member’s tenure application.  

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