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Eighth Circuit Rejects College Instructor's Claims of Sex Discrimination and Hostile Work Environment

ABSTRACT: Affirming the District Court’s grant of summary judgment, the Eighth Circuit rejected claims of sex discrimination and a hostile work environment made by a college instructor, who referred to a student’s actions as “retarded” and engaged in other inappropriate conduct. See Walker-Swinton v. Philander Smith College, et al., Case No. 22-1547 (March 13, 2023).

The Underlying Incident with Her Student (“John Doe”)

After the college instructor observed a student using his cell phone during a quiz, she confiscated his quiz, and he left the classroom in frustration. She then told her class that it was “retarded” for anyone to think that using a cell phone during a quiz was acceptable. The student’s girlfriend was in the class and told him about her comments. The student returned and confronted the teacher, using profanity. Later that day, the student was physically attacked by the instructor’s nephew and others, one of whom resided with the instructor.

Termination of the College Instructor’s Employment

After an investigation, the College terminated the instructor’s employment, finding she violated the school’s anti-harassment policy in connection with her use of the word “retarded,” a disability-related slur. Additionally, she was found to have attempted to coach several witnesses who provided statements during the investigation; and to have failed to disclose material and pertinent facts, such as that one of the attackers lived with her and that she had been with the attackers shortly before the physical altercation involving the student.

Instructor Files Lawsuit Alleging Discrimination and Other Claims and District Court Grants Summary Judgment in Favor of College

The instructor filed a lawsuit challenging her termination, alleging violations of Title VII (sex discrimination, unequal pay, and hostile work environment) and the Arkansas Civil Rights Act.  She also sued for breach of contract. The District Court granted summary judgment in favor of the College on the discrimination-based claims, choosing not to exercise supplemental jurisdiction over the state law breach of contract claim. The instructor appealed to the Eighth Circuit. 

Eighth Circuit Appeal

Sex Discrimination Claims

The instructor argued the College’s stated reasons for her termination were pretextual and that she was really fired due to her gender. First, the instructor relied on the “false-explanation theory”. As the name of the theory suggests, it applies where a non-discriminatory explanation is false and may be used to establish pretext.

Here, the instructor argued she did not violate the school’s anti-harassment policy because the student was not disabled and she merely used the offensive word in an instructional manner to teach her class how not to act. For these reasons, she claimed the anti-harassment policy could not have played a role in her firing.

The Eighth Circuit rejected this argument, finding it did not matter whether the student had a disability because her words insulted an entire protected group. It held the instructor’s violation of the anti-harassment policy provided a legitimate non-discriminatory reason to fire her, regardless of who was at fault for the classroom incident.

Next, to salvage her discrimination claims, the instructor attempted to rely on “others-were-treated-better” evidence. To prevail on this argument, the Eighth Circuit held she had to identify a man who engaged in the same conduct without any mitigating or distinguishing circumstances. The instructor presented evidence of two statements made by male members of the College’s leadership, where those members used profanity, specifically the term “asses”. The Eight Circuit rejected this argument finding that, unlike the statements  made by the male leadership, the instructor’s offensive comments were made to her entire class and singled out a vulnerable group of students in a negative and demeaning way.

Finally, the instructor raised a botched-investigation theory in support of her appeal, which provides an employer’s flawed investigation of an employee in a protected group can support a claim of discriminatory intent. The Eighth Circuit pointed out that there was not much to investigate here.  The instructor made the comments in front of her entire class and there was no doubt as to what she said. The Court found, based on the exercise of its business judgment, it was reasonable for the College to conclude that no further investigation was necessary.

Finding the instructor did not put forward sufficient evidence of pretext, the Eighth Circuit affirmed the District Court’s grant of summary judgment on her sex-discrimination claims.

Hostile Environment Claim

The instructor also appealed the District Court’s grant of summary judgment on her hostile work environment claim. The instructor was required to show the workplace was permeated with discriminatory intimidation, ridicule, and insult. To meet this requirement, she relied on three incidents: the issues involving the student that are described above; threatening looks allegedly made by the student after the incidents; and an occasion where the College’s attorney “snatched” her phone away from her.

The Court held these allegations, both individually and collectively, were “nowhere close” to severe or pervasive enough to alter a term, condition, or privilege of the instructor’s employment. Interestingly, the Court noted the instructor’s actions were relevant to its analysis too, noting the student only lashed out after the instructor used derogatory language to describe his conduct. In rejecting her hostile work environment claim, the Court determined the instructor’s own role in provoking the incidents with the student undermined the claim that the College created a workplace full of discriminatory intimidation, ridicule and insult.

Unequal Pay Claims

The instructor attempted to raise unequal pay claims that predated the claims covered by her Charge of Discrimination, as well as unequal pay claims that would otherwise be timely.  Regarding those claims that occurred more than 180 days before she filed her Charge of Discrimination, the Court found those claims were untimely and that the instructor failed to exhaust her administrative remedies. Regarding those unequal pay claims that would otherwise be timely, the Court held those claims were not addressed in her opening appellate brief and, as a result, were waived.

Dismissal of Remaining State Law Claim

Once the instructor’s discrimination claims were decided against her, the Eighth Circuit affirmed the District Court’s decision to dismiss the remaining state law contract claim without prejudice. The Court held the District Court had no obligation to exercise supplemental jurisdiction over that claim.

Key Takeaway

This seemed like a classic case for summary judgment in favor of the employer and the Eighth Circuit got it right. Summary judgment motions remain an effective and efficient tool to dispose of discrimination claims filed in federal courts that fail to raise a genuine issue of material fact under the applicable laws.