A Texas state appeals court has handed a partial victory to a former track coach at the University of Texas at Austin (UT), who sued the flagship university for discrimination after it sought to terminate her contract three years ago.
In short, the justice found that the university failed to present “any evidence whatsoever” in trying to overturn the trial court’s ruling that the claim of former UT track coach Bev Kearney could continue based on disparate treatment, or that she was treated more harshly than “similarly situated employees.”
The university, however, did secure a small victory when the appeals court reversed the lower court’s finding that Kearney had presented enough evidence to show that UT retaliated against her during the winter of 2012-13.
The impetus for the lawsuit was the athletic administration’s decision to place Kearney on paid leave in November of 2012, shortly before she was to receive a substantial raise. UT’s decision was reportedly fueled by a revelation that Kearney had engaged in what she termed to be a “consensual intimate relationship” with an “adult student-athlete” in 2002.
UT cited a provision in its Handbook of Operating Procedures, created in 2001, which states: “In the event that a consensual relationship exists or begins to develop, the individual in the supervisory, teaching or advisory position shall immediately notify his or her immediate supervisor of the relationship and cooperate with that supervisor in making the arrangements necessary to resolve the conflict of interest.”
Incensed with UT’s decision and the rationale for it, Kearney wasted little time securing counsel and ultimately filing her lawsuit, which alleges the school discriminated and retaliated against her based on gender and race.
Kearney is seeking $1 million in damages, arising from lost and future wages, loss of enjoyment of life, mental anguish and court costs.
The core of Kearney’s legal argument was that UT showed a double standard by punishing Kearney for an inappropriate relationship with a student athlete, while turning a blind eye toward comparable scenarios.
“Based on information and belief, other University employees (all of whom are white males) have been involved in relationships with students or direct subordinates and have not been subjected to termination, let alone any meaningful disciplinary actions,” alleged the plaintiff.
“These University employees include Major Applewhite, other coaches within the University’s Athletic Department, current and former law school professors, current and former professors within the University’s undergraduate school, and a department chairperson. Based on information and belief, a high level administrator within the University’s Athletic Department has carried on a prolonged intimate relationship of approximately three years with a subordinate employee with whom he has direct involvement in setting her pay.”
Applewhite’s salary was reportedly frozen for nearly 20 months as discipline for the transgression.
The McAllen, Texas lawyer who is representing Kearney, intimated that the Applewhite comparison is critical to her case.
“The way Kearney was treated by the university is very different from the way they treated Major Applewhite, who was once a star quarterback for the Longhorns and is now an offensive coordinator for the team,” attorney Jody Mask told The Monitor, a south Texas newspaper.
“Major Applewhite had an affair on his wife, who was pregnant at the time in February 2009. The university swept it under the rug and no one knew about it.
“Why does a white male football coach get a different set of rules than the African-American, female coach? Why was no press release issued for Major Applewhite saying he was investigated? We believed that they set the standard with Applewhite and that standard was not followed with our client.”
The Appeals Court’s Ruling
The state’s legal system continues to side with Kearney, at least at the pre-trial state, as evidenced by the appeals court’s decision.
“While it may appear from the face of Kearney’s pleadings that some of the University employees alleged to be similarly situated or were employed in different capacities in different departments and under different supervisors from Kearney, we cannot determine from the pleadings alone whether ‘other coaches within the University’s Athletic Department,’ in particular the former football coach—or for that matter, the former volleyball coach, whose employment overlapped with Kearney’s—were subject to different employment standards or ultimate supervisors from Kearney.
“Nor can we determine from the pleadings whether the former football coach’s or the former volleyball coach’s conduct was of comparable seriousness or nearly identical to that of Kearney or whether Kearney and the former football coach or Kearney and the former volleyball coach had comparable violation histories.”
The court continued, noting that Kearney “alleged in her petition that she is an African-American woman, qualified for her former position, and that when she was terminated, she was treated less favorably than other coaches who were white males, in particular the former football coach and the former volleyball coach. She alleged that the former football coach and other coaches were involved with students or direct subordinates, that the former volleyball coach married his former student athlete, and that none of the white males was subjected to termination or even ‘meaningful disciplinary actions.’ Thus, looking to Kearney’s intent, construing her pleadings liberally in favor of jurisdiction, and accepting the allegations in the pleadings as true, we conclude that Kearney has pleaded the elements of her statutory cause of action, i.e., the basic facts of a prima facie case, and has sufficiently alleged a TCHRA violation. See Garcia II, 372 S.W.3d at 637; Westbrook, 231 S.W.3d at 405; Ysleta, 177 S.W.3d at 917; Miranda, 133 S.W.3d at 226.”
UT failed to produce any evidence, wrote the court, that would indicate that “Kearney and the former football coach or Kearney and the former volleyball coach were not subject to similar standards and supervisors, that their conduct was not of comparable seriousness or nearly identical, or that they did not have comparable violation histories. Instead, the university asserts only arguments as to what the evidence would show had it offered any. However, the arguments of counsel are not evidence.
“Thus, the university asks us to determine jurisdictional facts in the absence of any record evidence whatsoever. Consequently, there is no evidence of the facts it now urges us to rely on in determining that Kearney cannot show she was treated less favorably than similarly situated employees. We cannot do so.” See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex.1979) (per curiam) (review limited to evidence properly in appellate record).
Partial Victory for Texas
The appeals court did side with UT on the plaintiff’s retaliation claim, agreeing that “Kearney’s pleadings negate causation.
“To support her disparate treatment claim, Kinney pleaded, and on appeal relies on, the allegation that the university singled her out and fired her for having a consensual relationship with a student athlete. Having affirmatively asserted that the university fired her for having a relationship with a student athlete, she cannot show a but-for causal connection between her complaints of prior discrimination and her alleged constructive discharge. See Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 313 (Tex. 2015).”
