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Positive Ruling in Employment Discrimination Case Against American University

We are pleased to report that the D.C. Superior Court Judge John Mott recently denied the defendant’s summary judgement motion in an employment discrimination case brought against American University. Lynne Bernabei, Christopher Sousa, and Kristen Sinisi took the lead in representing Ms. Ivancin, although nearly all of our attorneys and law clerks have pitched in on this interesting case. American University is represented by Kaiser Chowdhry, William Delaney, Hisham Khalid, and Grace Speights.

Ms. Maria Ivancin, our firm’s client, received a tenure-track appointment in the School of Communications. She later applied for tenure and promotion, received favorable reviews from inside and outside evaluators, and from the faculty committee. However, the Provost denied her tenure application. Initially, AU allowed Ms. Ivancin to continue teaching as an adjunct, but after she filed her lawsuit, AU denied her that ability – specifically because of the lawsuit – and she amended her complaint to add a retaliated claim.

For her DCHRA retaliation claim, the issue was whether there was causation. Judge Mott noted the close temporal proximity between her filing the complaint and the decision to stop allowing her to teach as an adjunct faculty member. “AU is not entitled to summary judgement because Ivancin has more than met her burden of establishing that a reasonable trier of fact could infer retaliation from all of the evidence discussed above.”

For the DCHRA age discrimination claim, Judge Mott concluded that a jury could find that AU discriminated against Ms. Ivancin on the basis of her age, particularly given the Provost’s repeated ageist remarks about older faculty members:

“The court determines that Ivancin has produced sufficient evidence to establish a prima facie case and a triable issue as to the ultimate question of whether AU discriminated against her on the basis of age. Ivancin was in her mid-fifties at the time that AU denied her tenure, a fact that was apparent from her resume. She has shown that she was qualified for tenure, having received the recommendation of every level of tenure review prior to that of Provost Bass, but was denied tenure nonetheless.”

“In addition, sufficient evidence exists to support a potential finding that Ivancin’s age played a substantial factor in Provost Bass’s decision and to rebut AU’s claim that Provost Bass simply found Ivancin’s record wanting. The provost has made prior statements implying that he preferred relatively younger faculty because he believed they would remain with the university longer; made a statement that suggests he believes older individuals to be unproductive (“We don’t want to bring in old people who are just going to sit around and do nothing.”); offered job candidates over the age of sixty so-called “limited tenure” appointments that he has never offered to younger candidates; failed to rebut one such offeree’s accusation that Provost Bass did not want “old, dead wood lying around” AU; and tenured younger candidates who had similar or, arguably, worse qualifications than Ivancin. The court determines that all of this evidence is sufficient to allow a rational jury to find that AU discriminated against Ivancin. Accordingly, the court determines that AU has not shown that it is entitled to judgment as a matter of law on her age discrimination claim.” [emphasis added]

Judge Mott also denied the cross-motions on the breach of contract claim, which addressed whether Provost Bass correctly applied AU’s tenure procedures. Judge Mott noted that although the courts generally defer to university officials in tenure decisions, “This is not to say that university employment decisions are unreviewable; rather, ‘where a university or college has adopted tenure or promotion rules or contract provisions, a court may determine whether there has been substantial compliance with those rules.'” (quoting Allworth v. Howard Univ., 890 A.2d 194, 202 (D.C. 2006)).