Unfortunately, the UI law school is learning this maxim the hard way.  After securing a defense verdict last February in an age discrimination lawsuit an aspiring law professor filed, the same person has sued again. This time, Donald Dobkin alleges the UI refused to hire him because of his age and because of his prior lawsuit. Adding insult to injury, the second suit is based upon information the UI disclosed in discovery during the first lawsuit.  

Dobkin filed his first lawsuit in 2009.   Despite his pending claim, he again applied to the UI during the 2010 hiring cycle, and documents concerning the hiring decisions in 2010 were part of the discovery in the 2009 case. According to Dobkin’s attorney, the faculty committee interviewed a candidate in 2010 that scored 40 points below Dobkin on the law school’s preliminary screening tool that it uses to rank candidates.  In the 2009 case, however, the UI claimed that Dobkin was not interviewed because the law school school interviews only the best candidates as shown by the preliminary screening.   Whoops. 

There was also evidence that a member of the hiring committee considered in deciding not to interview Dobkin that he had a pending discrimination case against the law school. Whoops again.

Takeaways: 

While a lawsuit contains only allegations, it should present a teachable moment to the professors on the faculty hiring committee.

First, it is important to remember that the stated reason you give for an adverse employment decision must be the real reason, and not appear to be a reason made up after the fact to justify the decision.

Second, when relying upon screening tools, it is important to apply them consistently.   If there is a deviation from a standard practice in the case of a particular candidate, there should be a stated and documented rationale for the deviation.

Lastly, employers must remember that a pending discrimination claim creates an genuine risk of a subsequent retaliation complaint if the pending claims plays a role in an adverse hiring decision.    Decision makers must remember that everything they write or put in a e-mail that refers to the pending claim, even if innocent or innocuous, is potential evidence in the next case.   Even if you win the first case, it does not mean you are forever out of the woods.

Very seldom is there overt evidence an employer discriminated on the basis of race, sex, disability, etc.   Most of the time plaintiff employees have to prove their claim by showing they were treated less favorably than similarly situated employees who were not in the protected class.   For example, if there is evidence the employer imposed lesser discipline on white employees than a black employee for similar conduct, it may be sufficient to create an inference the black employee was treated differently because of race. A hotly contested issue in most discrimination cases— in discovery, at the summary judgment stage, and during trial—involves determining whether the circumstances of these “other” comparator employees are similar enough to the plaintiff’s circumstances to justify using them as evidence of unlawful discrimination.

In a recent Eighth Circuit decision (Davis v. Jefferson Hosp. Assoc.), the Court reaffirmed the long-standing rule that comparing the plaintiff to any other employee outside the protected class is not enough. Rather, he must show the other employees are “similarly situated in all relevant aspects.”    The individuals used for comparison “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”

The plaintiff in Davis was a staff physician at Jefferson Hospital.   The hospital’s credentialing committee investigated the plaintiff because of complaints of abusive and offensive behavior toward staff and patients, as well as problems with quality of care issues, such as keeping accurate and timely charts and responding to calls for patient assistance.   The credentials committee ultimately recommended the plaintiff’s privileges be revoked after finding his treatment in four patient death cases fell below the standard of care. The hospital’s board voted unanimously to revoke the plaintiff’s privileges, citing three reasons: poor quality of patient care, improper medical documentation, and unprofessional behavior.  

Plaintiff, who is black, sued the hospital for race discrimination. In support of his claim, plaintiff presented evidence that three non-African-American physicians used used profanity and made derogatory comments in front of hospital staff, but were not subject to discipline or a corrective action plan like he was.    Plaintiff also produced affidavits of eleven other persons who testified that white physicians had also behaved inappropriately toward hospital staff but were not disciplined.    The court ruled that this evidence was not enough to generate an inference plaintiff was discriminated against because of his race, because there was no evidence that any of the white physicians in question had record keeping or quality of care issues as did plaintiff.    In other words, while these other physicians had acted unprofessionally without discipline, the fact that they lack similarity in two of the other reasons for plaintiff’s discharge was not enough to prove race was a motivating factor. Case dismissed.

Takeaway from the Davis case:  when terminating an employee or taking other adverse action, it is important to identify and document at the time all the reasons for the action.    That is the best way to determine whether you are treating similarly situated employees in a consistent manner, and avoids the problem of identifying reasons after the fact.

As we have written here many times, most private sector employers (over 90%) are not unionized and often don’t consider that their employees may have rights under the labor laws that protect them from termination, discipline, or discrimination.   

Specifically, section 7 of the National Labor Relations Act gives employees the right to engage in “protected” and “concerted” activity for the purpose of collective bargaining or other mutual aid or protection.   In other words, if employees communicate with each other about wages or working conditions, or take action to change or improve them, they cannot be terminated, disciplined, or discriminated against because of it.

Last week the NLRB launched a web site dedicated to promoting protected concerted activity.  The site promotes the agency’s efforts in recent years to litigate protected and concerned activity complaints, and specifically notes that employees have these rights even if they are not in a union.

While nothing in the web site is factually incorrect, it unfortunately is one more step in the NLRB’s march from a neutral agency that enforces the law to an advocate for the rights of employees against employers.   From mandating employer posters, trying to change election rules to favor employees (both of which have been struck down by courts) and cracking down on employer social media policies, the NLRB’s credibility as a agency that fairly enforces the law is in serious jeopardy.

Two Des Moines lawyers, Karin Johnson and Angela Morales, recently wrote in The Iowa Lawyer about a study their firm conducted of employment law trials in Iowa.    With the exception of one county (out of 99), there is very little data available to lawyers on trial outcomes in this state, particularly in employment cases.    I commend Karin and Angela for their work, and particularly for sharing some of it with the rest of the bar. I expect the study will be frequently relied upon by lawyers, both plaintiff and defense, in evaluating their cases.

Some of the most interesting information from the study includes the following:

·          The study was based upon 134 bench and jury trials between 2000 and 2011, in both state and federal courts.   Included in the sample were claims involving wrongful discharge, discrimination, and harassment.   More unusual types of claims, such as whistleblower, wage claims, and ERISA ,claims were excluded.

·          It is not clear whether the 134 cases includes each and every employment cases tried in Iowa during the period in question, although the goal of the study was presumably to capture every case.   134 trials jury trial in eleven years is a fairly low incidence of trials, but nonetheless seems consistent with statistics showing most cases get resolved in ways other than by trial.

·          Most interesting was that the plaintiff prevailed 57 percent of the time.

·          Damages awarded ranged from a low of $3,000 to a high of $3 million. If the outlying awards (those over $1 million) were eliminated, the average damage award was $179,000.

·          In those cases where emotional distress damages were awarded, a vast majority of the time (two-thirds) the award was less than $100,000.

·          Punitive damages were awarded in less than half the cases.

·          The study focused on awards by a fact-finder (judge or jury) and did not consider any reductions in awards post-trial, application of damages caps, or reversals on appeal.  Nor did the awards consider other remedies awarded by the judge post-trial, such as front pay or attorney’s fees. 

Earlier this week Iowa District Court Judge Robert Blink granted judgment for the State of Iowa in a high profile class action race discrimination lawsuit.   (Pippen v. State of Iowa, link here). The plaintiffs alleged that 37 departments in the State’s executive branch maintained hiring and promotion practices that had an adverse disparate impact on African Americans. The plaintiffs claimed the State favored white applicants and employees over equally or even better qualified black applicants and employees in hiring and promotion decisions.    The class included approximately 6,000 employees, former employees, and applicants, and sought over $70 million in damages.

Although the State won the case in the trial court, the plaintiffs plan to appeal. More importantly, it appears the plaintiffs’ lawyers in Pippen view the case as an opportunity to fundamentally reshape the landscape of discrimination litigation in this state. Indeed, Judge Blink noted in his opinion that one of the stated purposes of the plaintiff class was to “broaden the horizons of Iowa’s legal landscape premised on their belief in our state’s progressive stance on civil rights.”   

There are three novel aspects of the case that warrant close scrutiny during the appellate process because of the potential impact on future discrimination cases: 1) the scope of the class; 2) the nature of the challenged employment practices; and 3) the type of evidence the plaintiffs relief upon, most particularly the concept of so-called “implicit bias.” 

The first unique aspect of the case was its scope: it covered every executive branch department.    Each of the 37 departments exercises its own hiring authority. There are more than 700 diverse job classifications and 2000 supervisors that have authority in the hiring process. The sheer number of different hiring and evaluation processes within each department, and for each job, made the case unwieldy. 

The “glue” the plaintiffs relied upon to tie these various processes together was the State’s statutory merit based employment system. The goal of the merit system is to hire and promote employees solely on the basis of merit and fitness, as ascertained by examinations or other appropriate screening methods.    There is another agency, the Department of Administrative Services (DAS) which oversees the merit employment system for all executive branch departments.   In Wal-Mart v. Dukes, the famous employment class action case the U.S. Supreme Court decided last year, the Court ruled that a proposed class of millions of current and former employees at thousands of Wal-Mart Stores across the United States was too large and disparate to qualify as a class action.   Notably, Judge Blink had already ruled that the plaintiff class in Pippen satisfied the criteria to proceed as a class action, notwithstanding the Wal-Mart decision.

The second novel aspect was the nature of the employment practice the plaintiffs claimed was discriminatory.    Disparate impact is a form of unintentional discrimination.    The plaintiffs are required to prove that a particular employment practice that is racially neutral on its face—say a test–impacts African Americans more adversely than whites.    In this case the “particular” employment practice at issue was not particular at all.   The plaintiffs did not claim a single test, screening mechanism, or interview process had disparate impact.   Rather, they alleged a systemic failure within the executive branch to adequately enforce the state’s merit based employment system.   Specifically, the plaintiffs attacked the fact that lower level managers have discretion to make subjective judgments about an applicant’s qualifications.  In essence, Plaintiffs claim the State should have done more to ensure that individual managers were complying with the policies requiring equal opportunity. Unlike most discrimination cases that are based upon the commission of an act, Pippen was based upon the State’s alleged omissions.

The third and most troubling aspect of the case (from an employer’s perspective) was the type of evidence the plaintiffs relied upon to prove that the discretion afforded to supervisors resulted in a disparate racial outcome. That evidence was the concept of “implicit bias”.    Plaintiffs presented the testimony of Dr. Anthony Greenwald, a psychology professor at the University of Washington.    Dr. Greenwald coined the term “implicit bias”, which the court characterized as “a state of racial inclination which is manifested without the person’s slightest appreciation that they are acting on it.”   Dr. Greenwald apparently claims that even people who do not intend to discriminate are likely to have implicit bis, and “unthinkingly they may discriminate without recognizing they are doing that.”   Dr. Greenwald opined that most groups who have been tested “showed a 70 percent automatic preference for whites over blacks.”    His opinion is apparently based upon a test called the “Implicit Association Test”, a computer based test that requires a subject to associate a verbal or visual stimulus viewed on a monitor with either “pleasant” or “unpleasant” words. 

Judge Blink rejected Dr. Greenwald’s opinion that implicit bias of supervisors tainted most of the subjective discretionary employment decisions in the State’s executive branch.  It is not clear whether the State challenged the admissibility of Dr. Greenwald’s opinions, and given that the trial was to the court and not a jury such challenge may have been fruitless anyway.   But, this is not the last time employers will see attempts to use so-called implicit bias to prove discrimination, both in class actions and otherwise.    Novel expert testimony is often rejected when it is first tried, but if plaintiff’s lawyers keep trying, they ultimately may find a court that will admit such evidence.   This type of testimony could be particulary damaging in a jury trial.  If employers can be held liable for discrimination based upon the subconscious thoughts of their managers, that the managers themselves don’t know exist, it will turn discrimination litigation completely on its head.  

Implicit bias was really the heart of the plaintiffs’ claim in Pippen, and it will be important for defendants to vigorously oppose the admission of this type of expert testimony in future cases.  Judge Blink’s opinion provides a road map for doing just that.

For additional commentary and analysis of the Pippen case, I recommend the following:

Workplace Class Action Blog

Stephanie Thomas, The Proactive Employer

Nyemaster Blog

Boston Employment Discrimination Blog

Des Moines Register

Two years ago, Judge Linda Reade of the U.S. District Court for the Northern District of Iowa made headlines when she dismissed an EEOC lawsuit on behalf of 270 current and former female long haul drivers of Cedar Rapids based CRST Van Expedited.   What was notable about the decision was not so much the dismissal itself as the order that EEOC pay $4.5 million of the Defendant’s attorneys fees.   (See our post about the decision here).

The blockbuster sanction against EEOC ended with a whimper last week, when a three judge panel of the Eighth Circuit reversed the attorney fee award.   

While the attorney fee reversal is no doubt a significant blow to the Defendant, CRST actually prevailed on most aspects of the appeal.   The attorney fee award was reversed because the Court of Appeals also ruled Judge Reade should not have granted summary judgment with respect to claims of two Plaintiffs, and thus was no longer a "prevailing" defendant.  However, the grant of summary judgment was affirmed on the dismissals of 268 other purported plaintiffs. 

Other than the attorney fee issue, there are two important takeaways from the Circuit Court’s opinion.   First, the Court of Appeals held the claims of 67 plaintiffs were properly dismissed because EEOC did not investigate their claims or provide CRST the opportunity to conciliate before filing suit.   The Eighth Circuit agreed with Judge Reade that Title VII does not allow EEOC to use the discovery process in a lawsuit to fish for new complainants who had never filed an administrative charge. Unless the employer is given notice of the identity of claimants and provided the opportunity to conciliate with respect to those particular claimants during the administrative phase of the process, no lawsuit will be permitted.  

Second, the court affirmed Judge Reade’s holding that the claims of three plaintiffs were barred because they failed to disclose the existence of their sexual harassment claim when they filed for bankruptcy protection. The Court relied upon the doctrine of judicial estoppel, which holds that judicial acceptance of a party’s position in one proceeding bars that party from taking an inconsistent position in another proceeding. In short, by failing to disclose the existence of the sexual harassment claim in the bankruptcy petition, the plaintiffs could not then claim in another court they had a such claim.  The panel did not, however, extend the bar of judicial estoppel to claims the EEOC was pursuing in its own name, even if based upon conduct of the individual plaintiffs who were subject to judicial estoppel. 

This case is not yet over. The two plaintiffs whose cases were reinstated will now have the opportunity to prove their claims in court.   The decision must still be seen as a victory for CRST, however, because the scope of the case is much more manageable than it was before. 

Two local branches of the NAACP recently issued a report criticizing the Iowa Civil Rights Commission because of the low percentage of “probable cause” findings in discrimination complaints filed with the agency.   Although the report was issued December 31, it was recently publicized in a series of three stories appearing over the course of one week in the Des Moines Register (February 16, February 20, and February 21). 

The upshot of the report is that the ICRC determined there was “probable cause” discrimination occurred in only 1.5% of the non-housing cases filed during the 15 year period from 1996 to 2001.   The vast majority of non-housing cases involve claims of employment discrimination.    The NAACP claimed Iowa’s “probable cause” rate was much lower than neighboring states of Nebraska (6.4%), Minnesota (8.2%) and Illinois (15.7%)(the full text of the report can be found here).    The NAACP said their study revealed a “systematic dismissal of civil rights complaints at an alarming rate”.

The report was predictably followed by threats of litigation, mea culpas, and finger pointing.   ICRC Executive Director Beth Townsend seemed to agree the probable cause rate was too low, but blamed the huge backlog of cases. The Governor blamed previous administrations for allowing a culture to develop at the ICRC where staffers were not focused on their work. 

Unfortunately, both the NAACP’s criticism, and the defenses by government officials, miss the mark.    While there certainly may be problems at the ICRC, one of them is not a shortage of discrimination claims being pursued against Iowa employers.    Nor is there evidence that meritorious claims are being dismissed.  What the report fails to accurately present is the impact of what is known as the “right to sue” letter.    Unlike many states, the Iowa Civil Rights Act allows a complainant to request the right to sue 60 days after filing a complaint, regardless of the status of the agency’s investigation.    Once the “right to sue” is issued, the ICRC closes the case, and the complainant has the right to file a lawsuit in court.   A complainant with a strong case typically would prefer to pursue the case in court, because of the right to a jury trial, and the ability to recover attorney’s fees.

Thus, the reason the ICRC issues so few findings of probable cause has very little to do with the agency itself. Rather, it is because the best cases have already been taken out of the system and are being pursued in court.    What the ICRC is left with are those cases where the complainant is not able to find an attorney to take on the claim, usually because it lacks merit or there is little economic harm.   This represents not a failure of the system, but is precisely how it was designed. 

A more accurate presentation of the impact of discrimination claims would be to treat the issuance of a right to sue letter the same as a finding of probable cause.    Using this approach, the statistics presented in the NAACP report from 2006-2011 show that, on average, 11.8% of claims result in either a probable cause finding or a right to sue.  Rather than the lowest, this is actually the second highest rate among neighboring states.     

The NAACP report appears to be more of an effort to score political points than to address the real issues impacting the enforcement of the discrimination laws.    I suspect most employees and employers would agree that the existing hybrid system of public and private enforcement is more effective than charging a government agency with pursuing all the claims.   If the ICRC cannot handle its existing workload, what would happen if hundreds of additional cases that are now pursued in court would remain within its jurisdiction?   

Last August the National Labor Relations Board Acting General Counsel issued a report detailing the outcome of investigations into 14 cases involving employee use of social media and social media policies. 

A second report issued January 24 on the same subject underscores that social media remains a top NLRB enforcement priority.   In the preface of this most recent report, acting General Counsel Lafe Solomon writes that, “ these issues and their continued treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resource professionals, the media, and the public."

The case summaries contained in the report deal primarily with two subjects: 1) whether an employer’s social media policy is overly broad, in that it subjects employees to adverse action for activity that is protected by the NLRA; and 2) whether a particular termination of an employee because of social media postings violates an employee’s right to engage in protected and concerted activity.    I won’t go into detail here, but can only echo Jon Hyman when he describes the NLRB’s latest foray into social media as "a mess".  

Although it has been stated many times, it bears repeating because it is often forgotten: all employers, not just those with a unionized work force, are subject to the jurisdiction of the NLRB.    An employee’s involvement in social media adds one more area of inquiry before discipline or discharge of an employee.   Even though there are no lawsuits in court or jury trials for NLRA violations, being subject to a NLRB investigation is no picnic. It takes time, energy, and money to respond to these investigations. If your case goes to a hearing, potential remedies include reinstatement of the terminated employee, with back pay, and continued NLRB involvement in policing your employment policies.  

Unfortunately for employers, the social media enforcement is one of the ways the NLRB is trying to remain relevant in the face of long standing and continued declines in private sector union activity. 

We have written many times here about an employer’s obligation to reasonably accommodate an employee’s sincerely held religious beliefs, so as not to unlawfully discriminate on the basis of their religion. Indeed, according to EEOC statistics, claims of religious discrimination by employees are increasing at a higher rate than most other forms of discrimination.

Much less discussed, however, is an employer’s right to the free exercise of religion in the face of employment laws that conflict with religious tenets.    There are countless institutions in the U.S., including hospitals, schools, charities, fraternal organizations, and colleges and universities, that are affiliated with a religious organization.   Collectively, these institutions employ hundreds of thousands (if not more) people.  Not all of these employees practice the religion with which their employer is affiliated, and many of them serve people of all backgrounds and faiths.   Thus, there can be tension when the law grants rights to employees that conflict with the rights of their religiously affiliated employers to adhere to religious teachings.   Jesus famously declared that we should “render unto Ceasar what belongs to Caesar, and to God what belongs to God."   But how are these conflicts worked out in light of modern day employment laws?

Just this month, a pair of significant government decisions spotlight the potential conflicts between religious employers and secular laws.    On January 12, the Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that a Lutheran School’s decision to terminate a teacher cannot be challenged under the Americans with Disabilities Act (ADA). The Court unanimously ruled the Lutheran School was exempt from the ADA under what is known as the “ministerial exception”.   In essence, a religious institution has a First Amendment right to decide who is or is not suitable to serve its ministerial functions without court interference. 

Just as the Supreme Court’s decision was sinking in, on January 20, the U.S. Department of Health and Human Services issued a final rule mandating that employer provided health insurance cover abortion, sterilization, and contraception, all with no co-pay or other out-of-pocket cost to the employee. The HHS rule contains an exception for religious institutions, but defines that term very narrowly.   The only religiously affiliated employers who can opt out of the mandatory coverage are those primarily employ and serve people of the same faith. As a practical matter, this rule does not accommodate religiously affiliated hospitals, charities, and educational institutions.   Indeed, one commentator complained the exception is so narrow that Jesus himself would not qualify for it.

In a thoughtful piece, law professor David Skeel writes that while the HHS rule flouts the spirit of Hosanna-Tabor, it may very well comply with its letter, if narrowly construed.  In other words, while the Court’s ruling was on the side of greater religious accommodation, it is possible to interpret the opinion as applying only to those religious organizations whose purpose is the “inculcation of religious values”.   Such a construction would apply to churches and some Catholic schools, but would leave out hospitals and other institutions that serve the general public.  Unfortunately, the administration’s decision to draw the religious exemption in the HHS rule as narrowly as possible only invites litigation, and ensures these issues will be battled in the courts for years to come.  Professor Skeel believe the courts are the worst place to resolve these difficult accommodation issues.   He proposes that the better approach is to hash them out legislatively, or even better, allow the affected groups to work out in good faith practical accommodations. Amen.

In my practice I frequently represent counties, municipalities, school districts and other public entities.   Just like their counterparts in the private sector, public employees are protected against discrimination because of race, sex, age, religion, disability, and other protected statuses. However, public employees have one important right their private sector brethren do not share: the right under the First Amendment to be free of discrimination based upon their political speech and associations. 

Most First Amendment employment lawsuits involve claims of retaliatory discharge.   A typical case is the newly elected public official who wants to purge the ranks of employees who supported his political opponent in the election and fill the positions with his political supporters.   While political affiliation is a legitimate consideration for positions that involve policy making, employees holding jobs that do not involve policy functions are protected from retaliation based upon their political beliefs, even if they conflict with those of the boss.

A recent ruling from Eighth Circuit presented the more unusual case of refusal to hire based upon a person’s political beliefs. Indeed, the case was the first time the Eighth Circuit has addressed the question. Even more intriguing is that the plaintiff is a conservative law professor who claims she was blackballed by the predominantly liberal faculty at the University of Iowa College of Law.    The Court’s ruling reinstating the lawsuit that the trial court dismissed on summary judgment has sent shock waves through the legal and higher education communities, as reflected by the widespread national media coverage (WSJ; Fox News; New York Times; Chronicle of Higher Education). 

Teresa Wagner alleged she was not hired as a Legal Analysis, Research, and Writing (LAWR) Instructor because of her conservative political views.    Wagner, who is a graduate of the UI College of Law, had spent several years working with the National Right to Life Committee, a pro life advocacy group, and the Family Research Council, which advocates for conservative social policy.   Unlike the other candidates who applied for the position, Wagner had prior experience teaching Legal Analysis and Writing at another law school.    Wagner received many positive comments from both faculty and students who were involved in the interview process, and several recommended that she be hired.   Ultimately, the Dean chose to hire another applicant who had no prior successful teaching experience, had never practiced law, and had no legal publications, but who presented himself as a political liberal.  

Most interesting about the case was evidence showing that a particular faculty member’s views on abortion may have impacted the decision making.   The Court noted that Professor Randall Bezanson had been the primary, vocal opponent to hiring Wagner.   Bezanson, as it turned out, served as a law clerk to Justice Blackmun during the term Roe v. Wade was written, had written tributes to Justice Blackmun and his abortion jurisprudence, and published legal articles advocating support for abortion rights.   In contrast, part of Wagner’s legal career focused on pro-life advocacy. 

Even though Wagner was not offered the full time LAWR position, she was encourage to apply for adjunct openings in the same department.   The faculty hiring committee recommended her for an adjunct position, but the Dean chose to hire two others instead.   According to one member of the law faculty, the Dean had always followed the faculty’s recommendations in the past when hiring for adjunct positions. The others persons hired for the adjunct positions had no prior law school teaching experience, and one had just graduated from law school. 

The legal question the court addressed was whether the Dean’s decision to offer the LAWR position to another applicant was protected by qualified immunity.   The Court analyzed the claim under the burden shifting approach adopted by the First Circuit.  The Court held Wagner must first show that political affiliation was a “substantial or motivating factor” behind the hiring decision.   At that point, the employer must articulate a non-discriminatory basis for the decision and prove the decision would have been taken without regard to the candidate’s political affiliation.   Next, the Defendant is required to show the constitutional right that was allegedly violated was “clearly established” at the time of the violation.

The Court concluded that the evidence showed there was a genuine factual dispute whether the Dean would have made the same hiring decision in the absence of Wagner’s political beliefs. The Court also found that the right to be considered for a non-policy making and non-confidential position without regard to one’s political beliefs was clearly established. The question is whether Dean Jones, given the information available to her about Wagner’s political beliefs, and the relative qualifications of the other candidates, reasonably could have believed that not hiring Wagner was lawful. 

The Court of Appeals reversed the grant of summary judgment and ordered the case to trial.   Notably, on January 10, 2012, the Dean filed a Petition for re-hearing en banc.   The Court has not yet ruled on the en banc request.   Regardless whether the Court of Appeals agrees to a re-hearing or the case goes to trial, it appears this dispute is far from over.  Stay tuned.