The University of Texas (UT) has filed a motion with a state appeals court to modify a previous order and dismiss the lawsuit of its former women’s track coach, who claims the university discriminated against her based on race and gender.
The crux of UT’s filing with the 3rd Court of Appeals is that plaintiff Bev Kearney failed to submit sufficient evidence proving that she was treated differently than similarly situated employees. The filing can be viewed here.
Earlier this spring, the appeals court handed a partial legal victory to Kearney.
In short, the court found that the university failed to present “any evidence whatsoever” in trying to overturn the trial court’s ruling that Kearney’s claim could continue based on disparate treatment, or that she was treated more harshly than “similarly situated employees.” UT disputes that ruling.
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.”
