Today’s Daily Dawg has nothing to do with football, but it does involve former UT quarterback and assistant coach, Major Applewhite. I expect most readers will remember that name. Major was the guy right before Vince Young. Major’s name has come up in a lawsuit filed by former UT track coach, Beverly Kearney.
In 2012, UT informed Coach Kearney that it was planning to terminate her employment due to her inappropriate personal relationship with a student a decade earlier. Coach Kearney admitted this indiscretion. Rather than being fired, she resigned.
Then she filed suit. Coach Kearney had been extraordinarily successful at UT. She coached the women’s track and field team for about 21 years and regularly lit up the orange tower with conference and national championships. In her suit, she alleges that she won more competitions than any other African-American coach in the history of NCAA sports. Moreover, at the time of her termination, she was the only African-American head coach in UT’s history.
It did not escape Coach Kearney’s attention that the University was planning to fire an African-American woman, but it did not fire white males who she believed had engaged in similar behavior. In her suit Coach Kearney mentions a volleyball coach, various professors, a department chair and a high level administrator. But it was the assistant football coach who was mentioned most prominently. UT did not fire Assistant Coach Applewhite after he acknowledged that he had a one-night stand with a student trainer after UT’s victory over Ohio State in the Fiesta Bowl. The University imposed some disciplinary consequences on Coach Applewhite, but he remained on the staff, and later got a pay raise. In the lawsuit, Coach Kearney alleges that Applewhite and she engaged in similar misconduct. UT was about to fire her. Not him.
But was their misconduct “similar”? That is the big issue that this case will have to address before it is over. UT filed a Plea to the Jurisdiction, seeking to get the case tossed out. That Plea was partially successful. The Court of Appeals in Austin ruled that some of Coach Kearney’s claims should be dismissed. However, the Court did not dismiss the “disparate treatment” claim.
A termination case based on “disparate treatment” requires proof of four key facts: 1) the plaintiff was a member of a protected class; 2) she was qualified for her position; 3) she was terminated; and 4) she was treated less favorably than similarly situated members of the opposing class. The University’s Plea to the Jurisdiction argued that Coach Kearney and Coach Applewhite were not “similarly situated.” But the court pointed out that UT offered no evidence to back up that assertion. “Instead,” the court notes, “the University asserts only arguments as to what the evidence would show had it offered any.” (Emphasis in the original).
Thus: Plea to the Jurisdiction denied. The case moves forward.
We expect UT will take another shot at getting this case dismissed prior to a trial, this time bolstering its assertions with evidence to compare Coach Kearney and Coach Applewhite. If the pre-trial motions fail, this one will be decided by a judge or jury who will answer the question: were these two employees “similarly situated”? If they were—why were they not treated the same?
For our purposes, the case is a good reminder of the importance of applying the same standards to employees who are similarly situated. Furthermore, employers need to be able to articulate the rational basis for any distinctions.
The case of The University of Texas at Austin v. Kearney was decided by the Court of Appeals, Third District in Austin on May 3, 2016.
DAWG BONE: IT’S OK TO TREAT EMPLOYEES DIFFERENTLY, AS LONG AS YOU CAN EXPLAIN THE RATIONAL AND NON-DISCRIMINATORY REASON FOR THAT.
TOMORROW: CAN YOU BRING A GUN INTO THE SCHOOL ADMINISTRATION BUILDING?