Starting Tuesday, the decision will be made Faure v. Ohio State Univ.By Judge Edmund Sargus, S.D. Ohio):
Mary Faure was an OSU employee for over 30 years. She eventually became the Director of Engineering Technical Communications at OSU College of Engineering. In this position, she managed a team consisting of lecturers. She also worked closely with EED Career Services Department in order to aid students applying for job opportunities.
David Williams, the OSU College of Engineering Dean, chose Dr. Monica Cox to be the EED Chair shortly after its formation. Dr. Cox, Ms. Faure, and Mr. Williams met January 25th to discuss Ms. Faure’s Technical Communications program as well as the lecturers that she managed. Ms. Faure asserts that Dr. Cox told her, “I dislike white people,” several times. She also talked about “barriers or disadvantages white people have put up with her in the past.”
Ms. Faure claims that Dr. Cox pointed her finger at them. [Ms. Faure]And she said that she was at disadvantage throughout her career due to you people. Dr. Cox recalled an incident in which a Purdue University colleague made an offensive remark. However, the chair of her Department “didn’t deal with these white men for their insult.” Ms. Faure claims that Dr. Cox told her that Ms. Faure made the remarks. Ms. Faure also alleges Dr. Cox told her, “Mary and Mary, and then she turned like this at me” (pointing out her finger). I responded by pushing back and she replied, “If you repeat that, I’ll negate it.” She was going to hit me, I thought. Although Dr. Cox admitted that she had discussed her Purdue background with Ms. Faure, she denied making any statements about “you people” and “old white men.”
Ms. Faure along with EED workers allege that Dr. Cox used racist language about whites throughout 2016. and 2017. He said things like: There were too many white men working in EED, too few white men, too much power, too many white people, too sensitive, referring white EED people as Colonel Sanders and Big Lips, and calling an EED professor “a bully”, and “he speaks too often in meetings.” A 16-month-old administrative assistant for Dr. Cox stated that Dr. Cox would make racial comments about her at least once per month. She warned her: “If you claim I made this, it’s not true.” …
Faure claimed she made complaints to HR and EED leaders about Dr. Cox “multiple times” between February 2016 and December 2016. She was fired. Faure sued, alleging that she was fired because of race discrimination and in retaliation to her complaints of discrimination under Title VII and in violation the First Amendment. The court granted the claim to be heard by a jury.
[R]You can also visit our website at eading [the]Plaintiff sees conflicting accounts the most favorably and draws all inferences in her favour [which is the standard for a motion for summary judgment -EV]A reasonable jury would find Dr. Cox to be the main decision-maker for Ms. Faure’s termination, so that “a minority of racial origin took adverse action against her.” [non-minority plaintiff]The primary decision-maker relied on the information flow to discriminate, and she therefore satisfied the prima facie first element’s background-circumstances requirement….
[And w]Hile [Dr. Cox’s statements about race quoted above]Although they do not constitute direct evidence of discrimination but are enough for a jury, the Plaintiff has shown sufficient evidence to support discrimination. Therefore, the Plaintiff has proved that a prima facieReverse race discrimination case
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 maintained that
Professors were concerned that Ms. Faure would spread false information multiple times, leading to lecturers fearing they might lose their jobs. EED staff also received complaints from them about matters that should have been dealt with by Dr. Cox. HR ultimately concluded that Plaintiff had “created an atmosphere of low morale and uncertainty. She frightened lecturers about job security and raised concerns regarding the ETC’s future. They also worried about the goals of their department and were distracting employees and the leadership.
However, the court found that Plaintiff had established a real issue of material facts as to whether she was fired due to her race. This is largely because
[T]There is enough evidence to show that OSU significantly departed from protocol, causing harm for Ms. Faure. Ms. Faure wasn’t placed on OSU’s Performance Improvement Plan nor warned she might be fired. However, there are clear signs that OSU employees expect to receive warnings before being terminated. A second OSU staffer testified that Ms. Faure was part of the process that terminated “at most a dozen” employees. Each one was told that their actions might lead to termination.
Faure was also found to have provided sufficient evidence to allow the jury to decide whether OSU had retaliated towards her. “She ‘opposed’ Title VII-violating practices; Title VII forbids any retaliation. 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…. Plaintiff must prove that her constitutionally protected speech was engaged in. She must also show that her speech is “related to a public matter” and that her free speech interests are greater than the efficiency of her 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]Public concern. Boxill v. O’Grady (6th Cir. 2019). However, Ms. Faure’s concerns about Dr. Cox’s leadership and the workplace aren’t of concern to the public. 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).
Now, the Court will decide whether Plaintiff’s right to free speech outweighs OSU’s “in promoting efficiency in the public services it provides through its employees.” Courts balance the interests of both parties by determining “if the statement impairs discipline or harmony among coworkers, has an adverse effect on close working relations for which personal loyalty or confidence are required, or hinders the performance or interferes in the normal operation of the enterprise.” Relevant factors are “the way, place, and time that the employee spoke,” along with “the context within which it occurred.”
Plaintiff claims that the statements she made were non-disruptive. Respondents point out that Ms. Faure allegedly spoke with lecturers and told them to not trust Dr. Cox or Dr. Abrams. She also said they needed to be concerned about their jobs and she didn’t value them as a Department member. Dr. Cox stated that Ms. Faure had allegedly made at least four EED lecturers worry about their future because she was a professor. Dr. Abrams reported these conversations to HR and stated that Ms. Faure “vent to her faculty” and the other EED staff about. [Dr. Cox]And me. It isn’t professional and causes climate problems.”
According to Defendants, the evidence that is disruptive is Ms. Faure’s speech concerning lecturers possibly losing their jobs and EED’s management style. It’s not her speech on Dr. Cox’s alleged comments regarding race. This analysis will focus on Ms. Faure’s comments about race, which are the ones that relate to public concerns. It is not clear that the speech disrupted OSU’s work environment or caused any interference to its operations. Accordingly, the Court finds that Ms. Faure is motivated to complain about Dr. Cox’s racist remarks and outweighs the Defendants’ interest in efficiency and harmony at work. Ms. Faure engaged in constitutionally protected speech when she made complained about Dr. Cox’s allegedly racist statements….
Plaintiff has argued that Dean Williams’ November 2016 email was not a factor in her termination. She was fired seven months later. This erases any temporal proximity-based inference of causality. Plaintiff was protected by the defendants, so they could have ended her employment.
Plaintiff claims her termination was motivated at least partially by her complaints about Dr. Cox’s racist comments, which she made starting in January 2016 and ending in December 2016. Plaintiff claims that Dr. Cox changed her behavior toward her in summer 2016 when she made complaints about the allegedly racist remarks of Dr. Cox. Further, she claims that Dr. Abrams informed her that Dr. Cox didn’t want her to go back to HR with racist complaints. Evidence also shows that OSU HR didn’t address Plaintiffs’ complaints regarding Dr. Cox’s remarks and she wouldn’t have been fired if Dr. Cox desired her to stay.
Overall, Defendant claimed that Ms. Faure had been 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….