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Wednesday, May 2, 2012

Negative remarks aren’t always basis for gender discrimination suit

J. Daniel Marr

Negative remarks about a worker being “insecure,” “fragile” or “immature” are gender-neutral comments that do not form the basis to support a valid gender employment discrimination claim under federal law.

This issue was addressed in the April 10 decision in the 1st U.S. Circuit Court of Appeals case of Myrta Morales-Cruz v. University of Puerto Rico School of Law.

While this case originally comes from the U.S. District Court for the District of Puerto Rico, that federal district, like New Hampshire’s and Massachusetts federal districts, is part of the federal circuit and therefore the decision in that case from the 1st Court of Appeals is legal precedent for both New Hampshire and Massachusetts federal district courts deciding employment discrimination cases.

Morales-Cruz claimed that she experienced gender-based discrimination and retaliation from the University of Puerto Rico School of Law, which refused to extend her probationary period as an assistant professor to obtain tenure. The law school hired Morales-Cruz in 2002 as an adjunct professor.

The law school one year later offered her a tenure-track position of assistant professor, which carried with it a potential for tenure after the successful completion of a five-year probationary period.

During that five-year interval, Morales-Cruz taught various courses and along with a male professor led the community development section of this university’s Legal Aid Clinic. At some point, Morales-Cruz’s co-teacher began a sexual relationship with one of the clinic’s female students resulting in her pregnancy.

In 2008, near the end of Morales-Cruz’s probationary period, she sought a one-year extension before undergoing her tenure review. She did not ultimately get that one-year extension and therefore her employment ceased with the law school, evidently because the dean and a member of the Personnel Committee thought that her failure to report that her co-teacher was involved in a sexual dalliance with a clinic’s female student showed her to have poor judgment and difficulty handling complex and sensitive situations.

Further, the dean referred to her as “insecure,” “immature” and “fragile.” She thereafter filed suit.

The law school moved to dismiss the case based upon the pleadings and the district Court did so. The 1st Circuit Court of Appeals agreed with the dismissal, finding that there was no plausible conclusion from the facts alleged in the pleadings to state that the law school acted against Morales-Cruz in not extending her employment because of her gender.

Morales-Cruz stated that she was terminated because the dean and others expected her, as a woman, to report the teacher/student sexual relationship. The court found it implausible that the school held her to a different standard because she was a woman and found it ridiculous to suggest that the school believed that women, but not men, are expected to be forthcoming about sexual foibles of others.

The 1st Circuit Court further noted that the descriptions of Morales-Cruz as being “fragile,” “immature” and “unable to handle complex and sensitive issues” are gender-neutral.

The court also affirmed the district court’s dismissal of Morales-Cruz’s retaliation claim, concluding that she could not have a good-faith reasonable belief that the underlying challenged actions of the employer violated the law.

In other words, the court was saying that, in essence, Morales-Cruz knew she was losing her job for failing to report her co-teacher’s misconduct rather than because she was a woman, and therefore her retaliation claim could not withstand scrutiny.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. whose legal practice includes counseling businesses and business persons including professionals on a variety of legal issues and advocating on their behalf. Marr is licensed and practices in New Hampshire and Massachusetts. He can be reached at