April 24, 2012
Title IX of the Education Amendments of 1972 prohibits gender‑based discrimination by federally funded educational institutions. It provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court held that retaliation against a person because that person has complained of sex discrimination is also a form of gender‑based discrimination actionable under Title IX.
On its first occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX, the Ninth Circuit has reinstated a case for a plaintiff whose claim had been dismissed on summary judgment by a federal district court. Emeldi v. Univ. of Or., No. 10-35551, 2012 WL 933821 (9th Cir. filed Mar. 21, 2012). As other federal circuits have done, the Ninth Circuit applied the same framework as is used to decide retaliation claims brought against employers under Title VII of the Civil Rights Act of 1964. See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91B92 (2d Cir. 2011) (applying the Title VII framework to a Title IX retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (same).
According to that framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, he or she suffered an adverse action, and there was a causal link between the two. Once the plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action; if the defendant does so, the plaintiff must then show that the reason is pretextual either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence.
In Emeldi, the plaintiff was a graduate student who alleged that she had been retaliated against because she had complained about bias based on gender. Her complaints were on such matters as the lack of women on the faculty, the failure to give female students the same support and attention as male doctoral candidates received, and the fact that male students had opportunities that were not available to female students, such as access to more and better resources, including more office space and better technology for collecting data.
The court found that the plaintiff's complaints to the Dean of the College of Education and, later, to an administrator about gender‑based institutional bias and about a male professor's—her dissertation committee chair's—unequal treatment of her in particular and of female graduate students in general constituted "protected activity" under Title IX; moreover, the protected status of her alleged statements stayed intact whether or not she would ultimately be able to prove her underlying contentions about discrimination.
The second element of the prima facie case, that is, "adverse action" against the plaintiff based on the protected activity, was met in an unusual manner, by the resignation of the professor as her dissertation chair. At first blush, it would seem that the student would have welcomed the resignation. However, the resignation was "adverse" to the plaintiff because she could not complete the University's PhD program without a faculty dissertation chair and she had been unable, despite diligent efforts, to secure a replacement chair.
The necessary causal link between the protected activity and the adverse action was provided by evidence that the professor/dissertation chair had resigned within one month of having allegedly been told by the administrator of the student's complaints and that the professor had exhibited a gender‑based animus in other contexts. This causal-link element is construed broadly, so that a plaintiff merely has to prove that the protected activity and the negative action are not completely unrelated. A causal connection can be shown, as was done in Emeldi, by proximity in time between the protected activity and the adverse action.
Once the plaintiff student had made out her prima facie case of Title IX retaliation, the University did articulate legitimate, nonretaliatory reasons for the resignation by her dissertation chair and for her inability to secure a replacement chair. According to the University, the dissertation chair had resigned because the student did not follow his research advice, and university administrators had not provided a replacement dissertation chair because faculty members whom the student had solicited were unwilling to take the student for legitimate reasons, such as being unavailable or unqualified to advise her research.The University's production of a nonretaliatory reason for the adverse action shifted the burden to the student to show that the proffered reasons were merely a pretext for retaliation. It was on this point that genuine issues of fact existed, making summary judgment for the University inappropriate. The court mentioned the following factors supporting the student's showing of pretext: the proximity in time between the student's complaints of unequal treatment and the professor's resignation as her dissertation chair; the administrator's admission that she had relayed the student's complaints to the professor; the professor's resignation as dissertation chair without having provided assistance in securing a replacement chair; other evidence of the professor's gender‑based animus; the professor's praise for the student on the progress of her dissertation; and the student's inability to secure a replacement dissertation chair. Considered together, these facts could lead a reasonable jury to conclude that the student's complaints of unequal treatment, and not the professor's supposed dissatisfaction with her research, motivated the resignation. Because a reasonable jury could conclude from the evidence presented at summary judgment that the professor's resignation was gender‑based retaliation, the district court had erred in granting summary judgment.