Private Education Matters
EMPLOYEES
Grace Chan Partner | San Francisco
Contributors:
Hannah Dodge Associate | San Francisco
Madison Tanner Associate | San Diego
wage&Hour
New Minimum Wage Increases Start on January 1.
Beginning on January 1, 2025, the statewide minimum wage will increase to $16.50 per hour for all employers, regardless of size. The state minimum wage rate is used to determine the salary threshold for administrative, executive, and professional exemptions. Because the threshold is set at two times the state minimum wage, schools will need to ensure that all exempt employees earn at least $68,640 annually in 2025.
In addition, beginning on January 1, 2025, the following California jurisdictions’ minimum wage rates are also increasing: Belmont, Burlingame, Cupertino, Daly City, East Palo Alto, El Cerrito, Foster City, Half Moon Bay, Hayward, Los Altos, Menlo Park, Mountain View, Novato, Oakland, Palo Alto, Petaluma, Redwood City, Richmond, San Carlos, San Diego (city), San Jose, San Mateo (city), San Mateo County, Santa Clara, Santa Rosa, Sonoma (city), South San Francisco, Sunnyvale, and West Hollywood.
Schools in these locales should check their local ordinances to ensure they are complying with the increased wage and any notice, posting, and recordkeeping requirements.
Note:
For private school teachers in California, there is a separate lower salary threshold that is not based on the state minimum wage.
For more information on some of our upcoming events and trainings, click on the icons:
nlra
NLRB Makes It More Difficult for Employers to Make Unilateral Changes.
Endurance Environmental Solutions, LLC is a company involved in waste hauling and environmental services. Specifically, the company hauls trash and other materials to landfills. It employs workers such as drivers, mechanics, and loaders. These employees are responsible for the operation and maintenance of trucks and other equipment used in waste management and disposal activities.
Endurance decided in August 2020 to install the Lytx Driver Safety Suite, a surveillance system that records audio and video in its trucks, including those driven by unionized employees. The system retains footage from “triggering events,” such as hard braking or collisions, which could be reviewed and used for safety coaching or disciplinary purposes. The Union was not notified of the decision, nor was it given the opportunity to bargain over the implementation or its effects on employees' terms and conditions of employment. Endurance justified its actions by citing a management-rights clause in the collective-bargaining agreement (CBA) that allowed it to "implement changes in equipment … provided that this exercise of management’s rights will not violate or supersede any other provisions of this Agreement." This CBA was in effect from September 24, 2018 to September 26, 2021.
The Union first learned about the decision in January 2021 when employees were informed that Endurance had begun installing the cameras. The Union immediately demanded bargaining over the decision and its effects and requested relevant information. Endurance refused, asserting that it was not obligated to bargain because the management-rights clause authorized its actions. Subsequently, the Union filed an unfair labor practice charge under section 8(a)(5) and (1) of the National Labor Relations Act (NLRA).
The administrative law judge (ALJ) applied the "contract coverage" standard established in MV Transportation (2019), which allows unilateral changes if covered by the CBA's language. As the CBA had language that Endurance could “implement changes in equipment,” the ALJ dismissed the complaint, finding that the cameras were considered “equipment,” and the decision was within the scope of the CBA’s management-rights provision.
The National Labor Relations Board (NLRB or Board) used this case to revisit and overrule the "contract coverage" standard established in MV Transportation. It found that the standard undermined the NLRA’s fundamental goal of fostering collective bargaining. The Board restored the "clear and unmistakable waiver" standard, which requires explicit language in a collective-bargaining agreement to waive statutory bargaining rights. Applying this standard, the Board determined that the management-rights clause in the CBA did not include specific language authorizing the use of surveillance cameras to monitor employees or discipline them based on such surveillance. Because the CBA lacked clear and unmistakable language waiving the Union’s right to bargain, Endurance had an obligation to notify and bargain with the Union before implementing the camera system.
The Board also analyzed Endurance’s duty to bargain over the effects of the decision. Even if the decision to install the cameras were privileged under the management-rights clause, the Board found that Endurance would still be obligated to bargain over its effects, such as potential disciplinary actions and the privacy implications for employees. The NLRB cited a longstanding precedent requiring separate treatment of decision and effects bargaining. By failing to bargain over these issues despite the Union’s requests, Endurance violated section 8(a)(5) and (1) of the NLRA.
The NLRB ordered Endurance to cease and desist from unilaterally implementing changes affecting employees' terms and conditions of employment without
bargaining. It directed the company to notify and bargain with the Union before making future changes and to bargain over the decision to install cameras and its effects if requested. Additionally, Endurance was required to post notices at its Florence, Kentucky facility, informing employees of their rights under the NLRA.
Endurance Environmental Solutions, LLC (2024) 373 NLRB No. 141.
Note:
This decision is significant because it protects employees’ rights to negotiate over significant workplace changes. By reverting to the "clear and unmistakable waiver" standard, the NLRB emphasized the need for explicit contractual language to authorize unilateral employer actions.
ministerial exception
Court Rules That Ministerial Exception Is an Affirmative Defense and Not a Jurisdictional Bar to a Priest’s Claim.
Victor Ibhawa, a Black Nigerian Catholic priest, was hired by the Diocese of Buffalo in 2016 as Parish Administrator of Blessed Trinity Church in Buffalo. In 2020, his employment was terminated. Ibhawa filed a complaint with the New York State Division of Human Rights (DHR) alleging racial discrimination due to incidents where an employee used a racial slur, and a parishioner made xenophobic remarks.
Ibhawa claimed that Diocesan officials to whom he reported the incidents failed to investigate these incidents and made offensive remarks about "foreign priests." At a subsequent meeting, two Diocesan officials offered to buy Ibhawa a plane ticket to Nigeria and told him that the Bishop could remove his faculties (i.e., the authority to perform his priestly duties). Shortly afterwards, the Diocese informed Ibhawa that his employment had been terminated and his priestly faculties removed, which meant that that he could not apply for a position as a priest in the Diocese. Eventually, the Diocese hired a white priest to replace him.
Based on these assertions, Ibhawa alleged claims of hostile work environment and unlawful termination on the basis of race and national origin. He sought, among other remedies, compensatory and punitive damages.
The Diocese denied Ibhawa's allegations and raised three affirmative defenses, including the ministerial exception. The ministerial exception is based on the First Amendment and is recognized by the U.S. Supreme Court. It protects religious institutions' right to make employment decisions regarding certain key employees without state interference.
The Diocese argued that Ibhawa’s complaint should be dismissed because the determination as to who will lead a congregation and teach its faith clearly falls within the ministerial exception. It asserted in its second defense that as a clergy member, Ibhawa was not an “employee” entitled to bring a claim under the Human Rights Law.
DHR dismissed Ibhawa's complaint, citing a lack of jurisdiction due to the ministerial exception. Ibhawa then petitioned the New York trial court, which partially granted his request, ruling that while the unlawful
termination claim was properly dismissed under the ministerial exception, the hostile work environment claim required further review. The trial court remanded the complaint to DHR. Both DHR and the Diocese appealed.
The New York appellate division reversed the trial court’s decision, reinstating DHR's dismissal of the hostile work environment claim. They argued that DHR's determination was not arbitrary or affected by an error of law, given the lack of controlling precedent and divided opinions in federal courts on the application of the ministerial exception to such claims. Ibhawa appealed to New York’s highest court, called the New York Court of Appeals.
The New York Court of Appeals found that DHR's dismissal was affected by an error of law. The Court emphasized that the U.S. Supreme Court has explicitly stated that the ministerial exception is an affirmative defense, not a jurisdictional bar. By treating the exception as a jurisdictional issue, DHR made a legal error.
DHR and the Diocese argued that the Court of Appeals should overlook the error of law because DHR would have still dismissed the claims if it had properly understood the ministerial exception as an affirmative defense. The Court of Appeals disagreed, noting that the distinction matters, and reasoning that an affirmative defense goes to whether the plaintiff is entitled to relief, and a jurisdictional bar goes to whether the court has the power to hear the case.
The Court of Appeals reversed the trial court’s order and remanded the matter back to DHR for further proceedings. The Court stressed that it was not ruling on the merits of any of the Diocese's defenses, including the two statutory defenses raised alongside the ministerial exception.
Matter of Ibhawa v. New York State Div. of Human Rights, 2024 NY Slip Op 05872.
Note:
This case underscores that the ministerial exception serves as an affirmative defense rather than a jurisdictional bar in claims involving religious institutions. This decision clarifies how the ministerial exception is applied in the litigation process.
Premium Perks on Liebert Library!
discrimination
Flight Attendant Defeats
MSJ Based On Evidence That Airline Discriminated and Retaliated.
Alexa Wawrzenski, a flight attendant at United Airlines, was investigated and ultimately fired for failing to remove photos of herself in uniform and wearing a bikini on her social media account that had a link to a subscription-based account. She sued United, alleging that she endured years of gender discrimination and harassment and that United retaliated against her for her complaints. She claimed that she experienced harassing, derogatory, and objectifying comments about her body and the way she looked in her uniform from coworkers and supervisors. She said she heard these comments several times a month.
Wawrzenski produced evidence of United’s disparate treatment of male employees. She submitted evidence of three male employees with social media accounts that included pictures of themselves in uniform and in “suggestive” poses, but who were not disciplined or who received only a performance warning. She also had evidence of United’s failure to investigate her complaints. She alleged that United had a discriminatory atmosphere because a coworker told her she would experience “a lot of hate” because she was a “young, attractive female” and that she should “get used to it.”
The trial court granted United’s motion for summary judgment and Wawrzenski appealed. The California Court of Appeal held that the trial court was wrong to grant United’s motion as to her causes of action under the Fair Employment and Housing Act (FEHA).
The Court concluded that Wawrzenski had sufficient evidence to make a prima facie case of FEHA gender discrimination, because she showed: 1) membership in a protected class; 2) competent work performance; 3) an adverse employment action, namely termination; and 4) other
circumstances suggesting discriminatory motive. United conceded the first three elements of a prima facie case but contested the fourth.
The Court of Appeal determined that Wawrzenski had sufficient evidence to suggest a discriminatory motive because United treated at least three male employees with similar social media activities more favorably. That evidence created a factual dispute as to whether Wawrzenski’s termination was motivated by a discriminatory animus. The Court also found sufficient evidence to suggest she was subjected to a hostile work environment.
The Court also determined that there was a triable issue regarding whether United retaliated against Wawrzenski for her complaints. The Court found that the trial court was wrong to exclude evidence of comments made before the limitations period for the purpose of establishing animus. In addition, the timing of Wawrzenski’s termination, just days after she complained about harassment, supported an inference of a retaliatory motive, even though United also discovered that she had failed to remove all photos of her uniform from her social media after she complained.
Alexa Wawrzenski v. United Airlines, Inc., 2024 Cal.App. LEXIS 717.
Court Finds Administrator’s Harassment, Discrimination, And Retaliation Claims Against Her Supervisor Can Proceed.
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 TurciEscobar'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 TurciEscobar'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.
gender discrimination Students
Court Denies Injunction Against Mountain West Conference in Battle Over Transgender Participation in Women's Volleyball.
The Mountain West Conference (MWC) is a collegiate athletic conference comprised of 13 colleges and universities. Eleven of these institutions host women’s volleyball teams for the 2024-2025 academic year. A group of volleyball players from four of these universities filed suit against the MWC and San José State University (SJSU) related to the MCW’s Transgender Participation Policy (Policy).
MWC adopted the Policy in August 2022, which mandates that if a team refuses to compete against another team that includes an eligible transgender athlete, the refusing team forfeits the match. The Policy was unanimously ratified by the Athletic Directors of all member institutions.
The controversy began when SJSU allegedly recruited a transgender woman to its women’s volleyball team prior to the 2022 season. Although this athlete participated in matches during the 2022 season, her status as a transgender player did not become widely known or discussed until an article published in early 2024 brought it to public attention. This led to heightened scrutiny and objections from some teams within the conference.
During the 2024 season, several teams refused to compete against SJSU due to concerns about fairness and safety related to SJSU’s alleged transgender athlete. These forfeitures included: Boise State University,
University of Wyoming, Utah State University, and University of Nevada, Reno.
Each forfeiture was recorded as a loss for the refusing team and a win for SJSU under the Policy. Notably, none of these institutions formally protested the application of the Policy at the time or requested alternative treatment of their losses until this lawsuit was filed.
The plaintiffs’ current motion for a preliminary injunction argued that the Policy unfairly penalized teams that refused to play against SJSU and sought emergency relief from the Court. They requested that the Court rescind portions of the Policy, nullify SJSU’s wins resulting from forfeitures, and enjoin SJSU from rostering its alleged transgender athlete.
In examining the plaintiffs' claims, the Court considered alleged violations of Title IX, the Equal Protection Clause of the Fourteenth Amendment, and the First Amendment. The Court's analysis centered on the standards for granting a preliminary injunction, which requires the moving party to demonstrate a likelihood of success on the merits, irreparable harm in the absence of preliminary relief, a balance of equities in their favor, and that an injunction is in the public interest.
The Court paid particular attention to whether the plaintiffs showed that they would suffer irreparable harm in the absence of the injunction and a significant point in the Court's analysis was the timing of the lawsuit and the requested relief. The case was filed just two weeks before the MWC Women's Volleyball Tournament was scheduled to begin, which the Court said weakened the plaintiffs’ argument that the harm was irreparable. Furthermore, the Policy was approved and ratified by the MCW’s member institutions. Any
threatened harm resulting from MCW’s enforcement of the Policy was explicitly addressed in the Policy—when a team refuses to compete against another team that rosters a transgender teammate, the refusal is deemed a forfeit, the forfeiting team will be charged with the loss, and the opposing team will be credited with a win for the purposes of MCW records and standings.
Although the plaintiffs argued that MCW did not publish the Policy until September 2024 and that they were unaware of the policy until that time, the Court found that the eventual posting did not render the 2022 internal enactment and application any less valid. Furthermore, the forfeiting schools publicly acknowledged the application of the Policy when they forfeited their games throughout the season, yet only brought the emergency motion two weeks before the MCW Tournament.
Similarly, the Court reasoned that the plaintiffs and their institutions did not request to enjoin SJSU from rostering its alleged transgender teammate until they filed this emergency motion, yet were aware of the athlete’s status as early as spring 2024 when the article was published.
The Court considered that there was no threat of harm because most (if not all) of the alleged harm had already occurred—the alleged transgender teammate had played on the team since 2022.
The Court also concluded that the plaintiffs did not show that they would likely succeed on their Title IX, Equal Protection, and First Amendment claims. The Court considered the U.S. Supreme Court’s precedent interpreting Title VII and Title IX, and found that discrimination based on “sex” includes discrimination based on an individual’s transgender status or sexual orientation. Moreover, because Title IX prohibits discrimination against transgender individuals, the Court found that the plaintiffs were unlikely to succeed on the merits.
Similarly, for the First Amendment claim, the Court noted that the plaintiffs have a protected right to protest; however, the Policy was ratified and enacted by MWC institutions in 2022, and these teams and players did not protest their forfeits.
Finally, the Court found that the balance of harms weighed against the plaintiffs because of the timing of an eleventh-hour change to the MWC Tournament would risk confusion and upend months of planning by the need to reseed and reschedule the bracket.
Ultimately, the Court concluded that the legal arguments presented did not meet the high standards required for granting such extraordinary relief as a preliminary injunction.
Slusser v. Mt. W. Conf. (D.Colo. Nov. 25, 2024) 2024 U.S.Dist.LEXIS 214364.
Note:
The day after this decision was published, the 10th Circuit Court of Appeals upheld the trial court’s decision and denied the plaintiffs’ request for an appeal.
disability discrimination
Court Allows Disability Claims to Proceed in Case of Dismissed Pharmacy Student.
Tyler Finnegan began a six-year Doctor of Pharmacy program at Massachusetts College of Pharmacy and Health Sciences (MCPHS) in Fall 2016. MCPHS is a private university that receives federal funding. Upon acceptance, Finnegan received a copy of the MCPHS Student Handbook, which outlined policies and procedures, including course withdrawal, transfer credit, leave of absence, and academic dismissal.
In 2018, Finnegan learned that while he received transfer credit for prior elective courses, the grades were not calculated into his GPA. This led him to add additional electives and retake certain courses. In Spring 2019, Finnegan requested that his Organic Chemistry II grade from Salem State University (A-) replace the D grade he received at MCPHS. He claimed this was approved but not reflected in his grades.
Prior to Fall 2019, Finnegan was diagnosed with chronic migraines. He communicated this to MCPHS and submitted necessary paperwork. During the semester, due to his condition, he met with Dean Crosby, who advised him to take a leave of absence. Finnegan alleged that Dean Crosby said he would handle the logistics, but the leave was not properly reported, resulting in Fs (fails) instead of Ws (withdrawals) on his transcript.
Finnegan returned in Fall 2020, but again took a leave of absence midway through the semester due to his medical condition and personal issues. He provided medical documentation to Dean Crosby, who again allegedly said he would "take care" of the situation.
In Spring 2021, Finnegan returned, and his grades improved. However, his transcript still reflected Fs from
Spring 2020. He completed Fall 2021, but on December 16, 2021, MCPHS dismissed him based on poor academic performance. Finnegan believed this was in error due to the incorrect Fs on his transcript.
At the time of dismissal, Finnegan had completed four years of the six-year program and incurred over $199,000 in student debt, plus approximately $43,000 paid out of pocket.
Finnegan filed a number of claims, including under section 504 of the Rehabilitation Act and the American Disabilities Act (ADA) and breach of contract.
MCPHS moved to dismiss the claims.
Section 504 and ADA Claims
The Court analyzed these claims together due to their similar standards. For a section 504 claim, a plaintiff must plausibly allege four elements: (1) disability, (2) seeking services from a federally funded entity, (3) being otherwise qualified to receive those services, and (4) denial of services solely due to disability.
For an ADA claim, a plaintiff must show: (1) disability within the ADA’s meaning, (2) qualification for program participation, (3) request for reasonable accommodation, and (4) denial of the request.
MCPHS argued that Finnegan was not a qualified individual and was not dismissed solely based on his disability, citing that Finnegan was dismissed three times based on academic performance, and therefore the fourth dismissal was unrelated to his disability. Finnegan argued that his prior dismissals did not bear on the fourth dismissal because MCPHS failed to provide him reasonable accommodations to help him succeed academically. The Court agreed and found that Finnegan had plausibly alleged he was otherwise qualified, as he
had completed four years of the program, and his grades had improved after receiving treatment for his migraines.
MCPHS also contended that Finnegan never requested a reasonable accommodation because he did not follow the procedures, including making an official request. Finnegan argued that MCPHS was on notice of his disability because he informed MCPHS of his chronic migraines, submitted necessary paperwork, and provided medical documentation. The Court agreed that Finnegan had plausibly alleged that he would be granted additional time and that did not occur, and that Finnegan provided a medical letter stating the need for aid.
Based on these findings, the Court denied MCPHS's motion to dismiss, allowing Finnegan's Rehabilitation Act and ADA claims to proceed.
Breach of Contract
Finnegan also argued that MCPHS breached its contractual agreement based on the MCPHS Handbook. In particular, Finnegan argued, among other things, that MCPHS breached its contractual obligations when it failed to withdraw Finnegan from courses, resulting in Finnegan getting Fs instead of Ws; charged Finnegan for courses he withdrew from; failed to provide proper accommodations for exams; failed to refer Finnegan for further accommodations; and dismissed Finnegan due to a medical condition.
MCPHS argued that the Handbook is not a contract because the Handbook contained an express disclaimer that it is not intended and cannot be construed as a contract, and that the University could change, delete, or add to these guidelines unilaterally. The Court agreed, reasoning that courts have held that when there is an express disclaimer in a student handbook, and where a school retains unilateral rights to make changes without notice, any promises in the document are illusory.
Even assuming that the Handbook did form a contract, the Court concluded that there was no plausible basis for a breach of contract regarding Finnegan’s withdrawal, leave of absence, and transfer credit. In all instances, MCPHS followed its policies.
Finnegan v. Mass. Coll. of Pharm. (D.Mass. Nov. 13, 2024) 2024 U.S.Dist.LEXIS 205953.
Note:
This case shows the interplay between accommodations and academic performance. Here, the student had requested accommodations and shown that his grades improved upon receiving treatment for his migraines. The student was able to show that the School’s later decision to dismiss the student for his poor grades could have been related to his underlying disability.
Volleyball Players’ Claims Proceed Against University and Coach For Bullying And Disability Discrimination.
Emily Hodge and Genesis Kenney were freshmen at Spalding University during the 2022-2023 academic year and members of the women's volleyball team. Taryn Glass was hired as the head volleyball coach shortly before the two players began attending the University.
The two players alleged that they experienced bullying from teammates, including exclusion from teamorganized carpools to practices, exclusion of Hodge from activities during a team trip to Maine, and gossip about Hodge in the locker room and around campus. They also claimed that Glass fostered an environment that contributed to this bullying and occasionally participated in it herself. After complaining about the bullying following the trip to Maine, Hodge was allegedly benched by Glass in retaliation for her complaints.
Thereafter, Hodge joined the lacrosse team, but later suffered a hip injury, allegedly exacerbated by workouts at volleyball practice led by Glass.
Kenney also reportedly spoke up against Hodge's treatment, but this resulted in alleged harassment from the team and reduced playing time. Both players claimed that their grades suffered due to anxiety and depression triggered by the bullying. Kenney was eventually dismissed from the team for poor grades in February 2023 and later withdrew from the University.
In July 2023, Hodge was diagnosed with Attention Deficit Disorder (ADD) and as being on the autism spectrum. In August 2023, after informing Glass of this diagnosis, Hodge was allegedly benched for the entire season to focus on her mental health. A few weeks later, Hodge was kicked off the team, allegedly for
starting rumors about teammates and not being a good fit for the team.
The two players brought several claims against the University, Glass, and other University administrators, including negligence, negligent hiring and supervision, and disability discrimination under the Americans with Disabilities Act. The defendants filed a motion to dismiss all of the claims.
Negligence
To establish negligence under Kentucky law, the players must allege: (1) duty of care, (2) breach of duty, (3) injury, and (4) legal causation.
Regarding the duty of care, the Court found that the players sufficiently alleged facts establishing that Glass owed a duty to exercise reasonable care as the head volleyball coach. The Court cited the "universal duty of care" principle in Kentucky law, which requires every person to exercise ordinary care in their activities to prevent foreseeable injury. The Court also cited the doctrine of voluntarily assumed duty, which applies when an individual has undertaken a duty to render the services. Here, the Court found that Glass owed a duty to exercise reasonable care in her position as head volleyball coach. She took the job as head coach voluntarily, and therefore undertook the role to render services to the team.
On the issue of breach, the Court found that the players presented several facts throughout the complaint that could plausibly constitute a breach of Glass's duty to exercise ordinary care. These included allegations of Glass ignoring Hodge's request to keep her mental health issues confidential and her conduct relating to Hodge's hip injury.
The Court found that injury plausibly could have resulted from Glass’s actions, including emotional and psychological pain such as emotional distress, anxiety, embarrassment, humiliation, and mental anguish, and Hodge’s exacerbated hip injury. In particular, the players plausibly alleged that for Glass’s conduct, Hodge’s teammates would not have been informed of Hodge’s specific mental health issues which furthered their alleged bullying of her. Similarly, Hodge’s hip injury would not have been exacerbated if not for Glass’s mandated sprint regiments.
Negligent Hiring and Supervision
The players also alleged that Glass was negligently hired and supervised by the University administrators. For a negligent hiring and supervision claim, the plaintiffs must allege: (1) the employer knew or reasonably should have known that an employee was unfit for the job for which he was employed, and (2) the employee's placement or retention at that job created an unreasonable risk of harm to the plaintiff. The Court found that players failed to meet this burden. They did not plead sufficient facts to demonstrate Glass was unfit for the job or that defendants knew of or had notice of Glass's poor behavior. They asserted that Glass is a young coach without any collegiate head coaching experience and had no expertise, but they did not assert that Defendants knew or had notice of Glass’s poor or incompetent behavior.
For a negligent training and supervision claim, the plaintiffs must allege: (1) that the defendant knew or had reason to know of the employee's harmful propensities; (2) that the employee injured the plaintiff; and (3) that the hiring, supervision, or retention of such an employee proximately caused the plaintiff's injuries.
Here, the Court found that players failed to allege that the University administrators were aware of Glass's alleged wrongdoing during the time it was taking place. Rather, the timeline of events showed that these administrators became involved only after the alleged bullying had occurred and Hodge and Kenney were removed from the team.
Disability Discrimination Claims
Hodge also brought claims for disability discrimination under Title III of the ADA and retaliation under Title III of the ADA.
Regarding the disability discrimination claim, the Court first established that the ADA applies to Spalding as a postgraduate private school. The Court then considered whether Hodge possessed a recognized disability under the ADA. The Court found that Hodge had stated a plausible claim for ADA discrimination. Hodge's anxiety, which was known to Coach Glass, allegedly limited her ability to cope with teammates' bullying. The Court viewed Glass's decision to bench Hodge for the entire season due to her mental health issues as a plausible denial of Hodge's opportunity to participate in or benefit from Spalding's services based
on her diagnosed anxiety. As Glass acted in her official capacity as a Spalding employee, the Court denied the University’s motion to dismiss the ADA disability discrimination claim.
For the retaliation claim, the Court found that Hodge had presented sufficient facts to support an ADA retaliation claim. The Court rejected the University’s argument that Hodge had not engaged in protected activity, noting that Hodge's claim was not about being kicked off the team due to bullying, but rather due to her reactions to the bullying, including confiding in Glass about her mental diagnoses. The Court found the timeline of events presented by Hodge supported a plausible claim for retaliation, including being benched after disclosing her ADD and autism diagnoses, seeking reasonable accommodations, and subsequently being forced to run sprints despite a hip injury. Based on these factors, the Court denied the defendants' motion to dismiss the retaliation claim.
Hodge v. Spalding Univ., Inc. (W.D.Ky. Nov. 7, 2024, No. 3:24-CV-00156-GNS) 2024 U.S.Dist.LEXIS 202997.
Note:
This case is an important reminder that an employee’s conduct can influence students and create additional liability for schools. The Court in this case found that the two players had plausibly alleged that the coach’s conduct fostered a team environment that contributed to the teammates’ bullying of them, including due to the coach’s failure to take action to stop the bullying and participating in the bullying herself.
business&facilities
Accepting End of the Year Gifts and Donations: What Schools Need to Know.
As the end of the year approaches, schools often find themselves receiving last-minute gifts and donations. While these contributions can be invaluable, it is important for schools to pause and carefully consider the risks and implications before accepting them.
Assessing the Type of Gift
First, schools should consider the type of gift individuals are offering. Cash or checks are
straightforward and easy to process, but donations in-kind, such as property, equipment, or services, can be more complex. It is important to evaluate whether the gift aligns with the school’s needs and mission. For example, accepting outdated technology might be more of a burden than a benefit.
Donor Restrictions and Expectations
Last-minute donations can sometimes come with specific conditions. Donors may request that a school use the gift for a particular program, event, or purpose, which could place restrictions on how a school allocates the funds. Schools should be clear about their ability to honor these requests and consider how it aligns with their gift acceptance policy.
A donation that requires significant administrative work or special treatment might be more of a burden than a benefit in the end.
Legal and Tax Considerations
Schools must ensure that donations comply with both state and federal laws. For example, if receiving a non-cash gift valued over $500, the donor is responsible for determining the value of that gift, and additional IRS forms may be required for donations exceeding $5,000. Schools should provide receipts for donations, including cash and non-cash gifts, with the donor’s name, donation amount or description, and a statement of whether the donor received any goods or services in exchange. Schools must provide receipts for any gifts that exceeds $250 in value.
Donor Recognition
Be mindful of the donor’s expectations for recognition. Clear communication about when and how recognition will occur is essential to maintaining a positive relationship with donors. It is also important for a School to consider how it may walk back a permanent recognition in the event the recognition is no longer in the best interests of the school’s reputation.
By keeping these considerations in mind, schools can effectively manage last-minute end of year donations while minimizing risk and ensuring the gift benefits both the donor and the school. Schools should have effective gift acceptance policies to guide these situations. If your School has any last minute gifts that raise red flags, reach out to trusted legal counsel before accepting.
cases we are watching
Affirmative Action Edition
• The Supreme Court has declined to review a high school admissions process for three competitive public high schools in Boston. Instead of relying on standardized tests, these three schools reserve seats for students with the highest GPA in each Boston neighborhood. The number of seats depends on the neighborhood’s population of school-age children based on zip codes in Boston. A nonprofit organization of parents sued, arguing that the zip code quota was designed to reduce the number of Asian American and white students who were admitted. As proof of discrimination, the nonprofit pointed to committee members ridiculing Asian students’ names and leaking text messages where committee members expressed animus towards white residents of certain neighborhoods. The Court of Appeals previously ruled that the nonprofit failed to establish that the zip code system disproportionately harmed Asian American and white applicants because those groups still held more seats than their share of the applicant pool. The nonprofit appealed to the Supreme Court. Two Supreme Court justices dissented on the decision not to review the policy, stating that the policy was tantamount to racial balancing and was unconstitutional.
• A federal judge recently ruled that the U.S. Naval Academy may continue considering race as a factor in its admission process. At trial, the Academy argued that diversity strengthens the military, enhancing its effectiveness and reputation, and that the process was narrowly tailored to achieve the goal of creating an officer
corps reflective of the nation it serves. The Naval Academy also argued that race is only a minor factor in the admissions process and not a sole determinant for acceptance. The judge agreed and determined that the Naval Academy demonstrated a compelling national security interest in fostering a diverse officer corps, citing the unique needs of military readiness and national security.
• Students for Fair Admissions (SFFA), the same nonprofit that brought the lawsuits against Harvard, University of North Carolina at Chapel Hill, and the Naval Academy, recently sued the Air Force Academy for its continued use of race-conscious admissions. The filing came just four days after the judge ruled in the Naval Academy case (discussed above). In the Supreme Court’s ruling on affirmative action last summer, it ruled that military academies have distinct interests in using race-conscious admissions programs, including promoting mission readiness, national security, and effective leadership.
did you know...?
• The Supreme Court recently agreed to hear a case addressing the funding mechanism for the Federal Communications Commission’s (FCC) Universal Service Fund. E-rate, which provides federal funds to help schools and libraries afford broadband services, currently operates under the Universal Service Fund. The Supreme Court will review the 5th Circuit U.S. Court of Appeals decision, which held that the funding mechanism was unconstitutional.
• Congress recently approved the first-ever anti-hazing legislation. The Stop Campus Hazing Act is a bipartisan bill that will require higher education institutions to publish both their hazing prevention policies and the names of organizations that have violated those policies on their websites. The law will also require every college and university to develop a campus wide, research-based hazing education and prevention program. Having passed in Congress, the bill now moves to President Biden, and it is expected that he will sign the bill into law.
• The U.S. Department of Labor, Wage and Hour Division recently issued a Notice of Proposed Rulemaking that would phase out the practice of paying employees with disabilities lower wages via section 14(c) certificates, which authorize employees to pay productivity-based wages that are below minimum wage to workers with disabilities, when necessary, to prevent the curtailment of opportunities for employment. The Department has tentatively concluded that these wages are no longer necessary given the number of employment opportunities for individuals with disabilities.
• Occidental College recently settled with two nonprofit organizations over a U.S. Department of Education Office of Civil Rights Complaint that the campus was a hostile environment for Jewish and Israeli students following Hamas’ attack on Israel. The complaint alleged that Jewish and Israeli students were being called slurs and many students with on-campus jobs reported that the harassment and bias forced them to quit their jobs. The College agreed to make a number of changes, including updating their discrimination policy to outline examples of discrimination on the basis of shared ancestry; implementing new training for students, faculty, and staff; and creating new time, place, and manner policies for when and where protests may take place. The full terms of the settlement can be found here
lcw best timeline
NOVEMBER THROUGH JANUARY
Issue Performance Evaluations.
We recommend that performance evaluations be conducted on at least an annual basis, and that they be completed before the decision to continue employment for the following school year is made. Schools that do not conduct regular performance reviews have difficulty and often incur legal liability terminating problem employees - especially when there is a lack of notice regarding problems.
• Consider using Performance Improvement Plans but remember it is important to do the necessary follow up and follow through on any support the School has agreed to provide in the Performance Improvement Plan.
Compensation Committee Review of Compensation before issuing employee contracts.
The Board is obligated to ensure fair and reasonable compensation of the Head of School and others. The Board should appoint a compensation committee that will be tasked with providing for independent review and approval of compensation. The committee must be composed of individuals without a conflict of interest.
Review employee health and other benefit packages, and determine whether any changes in benefit plans are needed.
If lease ends at the end of the school year, review lease
terms in order to negotiate new terms or have adequate time to locate new space for upcoming school year.
Review tuition rates and fees relative to economic and demographic data for the School’s target market to determine whether to change the rates.
Review student financial aid policies.
Review, revise, and update enrollment/tuition agreements based on changes to the law and best practice recommendations.
File all tax forms in a timely manner:
Forms 990, 990EZ
• Form 990:
Tax-exempt organizations must file a Form 990 if the annual gross receipts are more than $200,000, or the total assets are more than $500,000.
• Form 990-EZ:
Tax-exempt organizations whose annual gross receipts are less than $200,000, and total assets are less than $500,000 can file either form 990 or 990EZ.
• A School below college level affiliated with a church or operated by a religious order is exempt from filing Form 990 series forms. (See IRS Regulations section 1.6033-2(g)(1)(vii)).
practices
Each month, LCW presents a monthly timeline of best practices for private and independent schools. The timeline runs from the fall semester through the end of summer break. LCW encourages schools to use the timeline as a guideline throughout the school year.
• The 990 series forms are due every year by the 15th day of the 5th month after the close of your tax year. For example, if your tax year ended on December 31, the e-Postcard is due May 15 of the following year. If the due date falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.
• The School should make its IRS form 990 available in the business office for inspection.
Other required Tax Forms common to businesses who have employees include Forms 940, 941, 1099, W-2, 5500.
Annual review of finances (if fiscal year ends January 1st).
The School’s financial results should be reviewed annually by person(s) independent of the School’s financial processes (including initiating and recording transactions and physical custody of School assets). For schools not required to have an audit, this can be accomplished by a trustee with the requisite financial skills to conduct such a review.
The School should have within its financial statements a letter from the School’s independent accountants outlining the audit work performed and a summary of results.
Schools should consider following the California Nonprofit Integrity Act when conducting audits, which include formation of an audit committee:
• Although the Act expressly exempts educational
institutions from the requirement of having an audit committee, inclusion of such a committee reflects a “best practice” that is consistent with the legal trend toward such compliance. The audit committee is responsible for recommending the retention and termination of an independent auditor and may negotiate the independent auditor’s compensation. If an organization chooses to utilize an audit committee, the committee, which must be appointed by the Board, should not include any members of the staff, including the president or chief executive officer and the treasurer or chief financial officer. If the corporation has a finance committee, it must be separate from the audit committee. Members of the finance committee may serve on the audit committee; however, the chairperson of the audit committee may not be a member of the finance committee and members of the finance committee shall constitute less than one-half of the membership of the audit committee. It is recommended that these restrictions on makeup of the Audit Committee be expressly written into the Bylaws.
JANUARY/FEBRUARY
Review and revise/update annual employment contracts.
Conduct audits of current and vacant positions to determine whether positions are correctly designated as exempt/non-exempt under federal and state laws.
On Demand Training At Your
At LCW, we have developed a comprehensive suite of on-demand training topics tailored for California’s educational institutions, allowing for freedom and flexibility in the learning process!
Our trainings seamlessly integrate with your organization’s Learning Management System. We offer the following SCORM packages: SCORM 1.2, SCORM 1.2 Success Factors, SCORM 2004 3rd Edition, SCORM 2004 4th Edition.
WHAT WE DO: WHY ON DEMAND?
OUR LIBRARY INCLUDES:
Mandated Reporting
Preventing Workplace Harassment
• Supervisory (2 hours)
• Non-Supervisory (1 hour)
Elimination of Bias
• Flexible Learning: Our program is designed for flexibility, allowing employees to learn at their own pace, ensuring maximum convenience and understanding.
• Discounted Rates: Take advantage of discounted rates for institutions purchasing multiple training sessions, making our offerings cost-effective and accessible.
• Certification: Participants can download a certificate of completion at the end of each course, recognizing and validating their achievements.
• Dedicated Support: LCW provides dedicated account support to enhance your training experience.
CONTACT US TODAY FOR MORE INFORMATION:
Email: on-demand@lcwlegal.com www.lcwlegal.com/events-and-training/ on-demand-training
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question:
A Director of Human Resources reached out to LCW with a question about baby bonding leave. The HR administrator explained that the School had an employee going on baby bonding leave, and the employee wanted to take off the week before winter break. The School said this was not preferable for them because usually this employee would proctor final exams. The School wanted to ask the employee to take a different week off instead and asked LCW if this was permissible.
Answer:
The LCW attorney responded that under the California Family Rights Act (CFRA), an employer cannot decline an employee’s request for baby bonding leave if the request is reasonable and the employee is eligible. CFRA regulation 2 CCR section 11088 states that a request for CFRA leave is considered reasonable if it complies with applicable notice requirements and is accompanied by any required certification. Employees may take baby bonding leave intermittently in increments of two weeks or more, and employees may take two or more increments of bonding leave that are shorter than two weeks without the employer's agreement. Therefore, the attorney advised that the School should not deny the employee’s request so long as the employee provided the necessary notice and certification.
Liebert Cassidy Whitmore