Texas Supreme Court Rebuffs University of Texas in Bev Kearney Case

Jul 21, 2017

The Texas Supreme Court has denied the University of Texas’ petition to review the discrimination brought by the school’s former track coach, Bev Kearney. Kearney had been rebuffed twice before by lower courts, before seeking relief from the high court.
The ruling means the case will move back to a district court in Austin, with Kearney’s attorneys promising to restart discovery. So far, there has only been one deposition, involving former UT assistant football coach Major Applewhite (presently the head coach at the University of Houston). Her attorney told the Austin American Statesman she wants to depose former football coach Mack Brown, former men’s athletic director DeLoss Dodds, women’s athletic director Chris Plonsky and former school President Bill Powers.
The impetus for the lawsuit was the athletic administration’s decision to place Kearney on paid leave in November 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.”


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