Diverse Docket: Jackson State Faculty Pursues Discrimination Claim for Denied Promotion - Higher Education
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Diverse Docket: Jackson State Faculty Pursues Discrimination Claim for Denied Promotion

by Eric Freedman

 

Tarek El Bawab

Tarek El Bawab, a faculty member at Jackson State University.

A federal judge has allowed an Egyptian-born Jackson State University faculty member, who won tenure but not a promotion, to pursue his claims of national origin discrimination and retaliation. The judge, however, threw out allegations that the university denied equal protection to Dr. Tarek El-Bawab and violated his civil rights.

JSU hired El-Bawab in 2005 as an associate professor of computer engineering, according to the decision. His first promotion application in 2009 was denied for being premature.

In 2010, he applied for promotion to full professor with tenure, and his grant productivity was criticized at various levels of the review process. During the lengthy review process, El-Bawab filed an internal university grievance and emailed the campus president complaining of discriminatory treatment.

JSU granted him tenure without a promotion in 2011.

El-Bawab’s lawsuit alleged violations of Sections 1981 and 1983, denial of equal protection under the Mississippi and U.S. constitutions, and discriminatory and retaliatory treatment under Title VII.

U.S. District Judge Daniel Jordan III found sufficient evidence for El-Bawab to press his promotion discrimination claim.

“While it seems from the record that El-Bawab would not satisfy the objective requirements” about grant productivity, “JSU’s position is complicated by El-Bawab’s claim that JSU did not apply these objective requirements evenly,” Jordan said.

In particular, Jordan found unanswered factual questions about whether the university treated two other faculty members, “neither of whom are from Egypt,” more favorably as to their record of grants. Both had applied for promotion from assistant to associate professor around the same time El-Bawab sought promotion.

Jordan rejected the university’s argument that the two colleagues’ situations were not similar because of their difference in rank.

“Although the assistant professor position is clearly a lower rank, there is no suggestion that assistant and associate professors serve functionally dissimilar roles at JSU,” the decision said. “It also appears that the promotion decisions passed through the same officials and committees, and there is no indication that the difference between an assistant and associate professor accounts for any differences in the way JSU views qualified grants.”

As for the retaliation claim, the judge said El-Bawab’s email to the president was protected activity because it mentioned his EEOC complaint.

The remaining claims were dropped or dismissed due to sovereign immunity.

Former Medical Student Pursues Lawsuit Following School Dismissal

A former medical student at the University of Texas Health Science Center at Houston has been permitted by a federal judge to pursue disability discrimination, due process and equal protection claims due to his dismissal from the program.

The student, Jason Shurb, also will be allowed to seek reinstatement to the program.

However, U.S. District Judge Kenneth Hoyt rejected allegations of breach of contract, unauthorized disclosure of Shurb’s confidential health care information, intentional infliction of emotional distress and negligent hiring, training and supervision.

According to the decision, Shurb began his medical school studies in fall 2009. Due to his history of obsessive compulsive disorder, severe anxiety, panic attacks, major depressive disorder and migraines, the medical school advised him to participate in its Alternative Pathway program that splits the first year into two years.

In addition, Shurb is a visual learner, and the suit contends that all but one professor accommodated that condition by providing access to visual aids, presentations and resources.

Shurb took medical leave in fall 2010, but after he returned in fall 2011, he was hospitalized for illness. He claims a treating physician falsely accused him of attempting suicide and improperly disclosed confidential educational, medical and mental health records to the medical school.

Ultimately, the medical school withdrew Shurb from the program, triggering the lawsuit.

In his decision, Hoyt turned down the university’s request to dismiss claims under the Americans with Disabilities Act and the Rehabilitation Act. The mental health conditions Shurb reportedly experienced, coupled with the university’s acknowledgement of his disabilities by placing him in the Alternative Pathway program, are sufficient to let those allegations move forward, held Hoyt.

Similarly, Hoyt let stand assertions that the university imposed “a series of unreasonable conditions in order for him to resume classes” and denied him an opportunity to be heard when it withdrew him.

The dismissed claims are barred by the university’s sovereign immunity, Hoyt ruled.

Tom Kelley of the Texas attorney general’s press office said an answer to the remaining allegations will be filed soon and will address the issue of whether individual university officials are immune from liability. Discovery is expected to continue until the end of next January, he said.

Former Virginia State Professor Fails to Provide Proof in Discrimination Suit

A federal judge has tossed out a discrimination suit against a department chair by a former Virginia State University professor who lost his job during a funding crisis.

Dr. Lawrence Hawthorne, who is Black, presented no evidence that the chair of the Music, Art and Design Department, Dr. Thomas Larose, who is White, participated in the termination decision, the court said.

In 2010, VSU’s interim vice president notified Hawthorne that his employment would end after the 2010-11 academic year because the university “recently lost significant state funding and has been informed that funding will be substantially reduced again,” according to U.S. District Judge John Gibney Jr.

VSU didn’t replace Hawthorne.

When Larose took over the department in 2006, there were three full-time Black instructors and five Black adjuncts. There are now no full-time Black instructors and four Black adjuncts, and some of those who left were replaced with White professors, the decision said.

Hawthorne’s suit asserts that Larose had a “scheme to eliminate African-Americans” from the department, and Gibney said some current faculty and ex-students claim Larose “harbors racial animosity.”

Gibney found no basis to hold Larose personally liable.

“Though the record paints a frustrated faculty often divided on the basis of race, Hawthorne’s claim suffers from a significant failure in proof. Even assuming Hawthorne’s termination resulted from discriminatory activity, his claim fails as a matter of law because Larose did not personally participate in the employment decision,” said Gibney.

Hawthorne’s lawyer, Josephine Miller of East Hartford, Conn., said no decision has been made yet about a further appeal. She said she is awaiting a ruling on related claims brought by Hawthorne’s former colleague, Brenda Mveng-Whitted, who is also Black.

“In this case you have a historically Black university and a White professor who comes in and basically clears the house of African-Americans and brings in his cronies who happen not to be African-American,” Miller said. “We’ve always seen the two cases as part of the same problem.”

Thomas Reed, VSU’s director of university relations, had no comment on the case.

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