Eugene Volokh, Reason, December 16, 2021
From a decision Tuesday in Faure v. Ohio State Univ. by Judge Edmund Sargus (S.D. Ohio):
Mary Faure worked for OSU for 30 years, and ultimately became Director of Engineering Technical Communications for the Engineering Education Department at the OSU College of Engineering. “In this role, she led a team of lecturers and worked with the EED Career Services Department to help students apply for jobs.”
David Williams, Dean of the OSU College of Engineering, selected Dr. Monica Cox as the Chair of the EED soon after the EED’s formation. On January 25, 2016, Dr. Cox and Ms. Faure met to discuss Ms. Faure’s Technical Communications program and the team of lecturers Ms. Faure supervised. During the meeting, Ms. Faure alleges that Dr. Cox said, “I despise white people” multiple times and discussed “barriers and disadvantages that white people had put up against her in her previous life.”
According to Ms. Faure, Dr. Cox “pointed her finger at [Ms. Faure] and said, ‘I have been at a disadvantage my whole career because of you people.'” Dr. Cox recounted an experience where a colleague at Purdue University made an insulting remark, but the chair of her department “did not deal with these old white men for their insult.” Ms. Faure avers that she told Dr. Cox the comments were “racist and unprofessional” and that the discussion was not related to the Ms. Faure’s program. Ms. Faure further alleges that Dr. Cox said, “Mary, Mary and then she went like this at me (pointed her finger) and I pushed back in my chair and she said, ‘if you repeat that I’ll deny it.’ I thought she was going to strike me.” Dr. Cox admits that she discussed her background at Purdue with Ms. Faure during this meeting but denies making statements referring to “you people” or “old white men.”
Ms. Faure and other EED employees allege that, throughout 2016 and 2017, Dr. Cox made racist statements about white people such as: there were “so many old white men in the EED;” “white men in the EED held too much power;” “white people are too sensitive;” referring to white individuals in the EED as “big lips” and “Colonel Sanders;” calling a white male professor “a bully” and said, “he talks too much in meetings.” An administrative assistant who worked for Dr. Cox for 16 months stated that Dr. Cox made race-based comments at least once a month and would warn her, “if you say I said this, I’ll deny it.” …
Faure claims she “complained to HR and EED leadership about Dr. Cox several times between February and December 2016,” and was then fired. She sued, claiming the real reason for the firing was race discrimination, retaliation for her discrimination complaints in violation of Title VII, and retaliation in violation of the First Amendment; and the court allowed the claims to go to a jury:
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 argued that,
Ms. Faure’s spread misinformation multiple times which caused lecturers to fear that they would lose their jobs and complained to EED staff about issues that should have been addressed to Dr. Cox. Ultimately, HR concluded that Plaintiff’s “actions and behavior have created an environment of low morale, uncertainty, fear of job security, concerns for the future of the ETC, uncertainty of goals and priorities, and distractions to departmental leadership and employees.”
But the court concluded that “Plaintiff has established a genuine issue of material fact as to whether she was fired because of her race,” largely because,
[T]here is sufficient evidence that OSU considerably deviated from its protocol and there was harm to Ms. Faure. Ms. Faure was not placed on a Performance Improvement Plan or formally warned that she could be terminated even though there is evidence that OSU employees have a clear expectation that they will receive a warning before termination. Her contention is supported by another OSU staff member’s testimony that he had been part of the termination process for “at least a couple dozen” employees and every one of them was warned that failure to correct behavior might result in termination.
The court also concluded that, for similar reasons, Faure had provided enough evidence to go to the jury on the question whether OSU had retaliated against her “because she ‘opposed’ a practice that violates Title VII”; such retaliation is itself forbidden by Title VII.