After being slapped with a discrimination lawsuit, the University of Wyoming Foundation could held liable for civil right claims under the Americans with Disabilities Act, a federal judge ruled.
Mandy Davis, the fundraising Foundation’s former human resources manager, filed a lawsuit in March 2017 claiming her position was eliminated as a ploy of unlawful retaliation against her for submitting complaints against her superiors. Those complaints: her superiors had made disparaging comments about a recently hired employee with a physical disability.
Foundation’s attorneys argue the nonprofit is not subject to ADA rules concerning disability-related discrimination because does not have at least 15 employees, the threshold used to hold organizations responsible for ADA and Title VII Civil Rights Act protections.
Johnson found several factors indicating the Foundation is part of the much larger employer of the University and should be subject to the laws, like how CEO and Foundation President Ben Blalock has control over the hiring of Foundation senior staff and the two organizations.
Federal Judge Alan Johnson ruled Oct. 31 that a jury could decide if the UW Foundation is a “joint employer” of its staff, or if UW and the Foundation are a “single employer,” making the Foundation liable for specific civil rights claims.
“If either party demands a jury, the jury will decide ‘fact’ questions, while the judge decides ‘legal’ questions,” UW law professor Melissa Alexander said. “It is typical for a judge to allow a jury to decide a question if there is a genuine dispute as to any material fact that is relevant to the issue’s resolution.”
In December 2015, Davis and three other employees were told their positions were being eliminated as part of a budget-reduction plan in response to significant decline in the state’s economy and funding the university.
Davis then filed a discrimination and retaliation complaint with the Labor Standards Office of the Wyoming Department of Workforce Services. They dismissed the complaint in Nov. 2016. The U.S. Equal Employment Opportunity Commission adopted the findings of the Department of Workforce Services in January 2017, issuing Davis with a standard “right to sue” letter.
Davis was rehired to another HR position at UW in March 2016 after her previous position was eliminated. She continued to work for the University until April 2018, when she took a job in a private sector.
Allegations in the lawsuit depict Blalock as someone who is hostile to disability discrimination laws. Davis claims when she was hired, Blalock complained that HR personnel “lack common sense” in enforcement of discrimination rules. He also had an outburst during OFCCP training, a statement backed up by Janean Lefevre, who conducted the training. When she was hired, Davis said, the UW vice president for administration and donor relations Mary Ivanoff warned her, “Ben doesn’t like fat people.”
Blalock has openly expressed his frustration that Davis filed a discrimination complaint with the employee protection office as well.
In August, Davis’ lawsuit faced a setback when UW was not required to hand over emails from 2015 relevant to the case to Davis’ attorneys, including UW President McGinity’s hiring freeze and submission of a reorganization plan email. UW’s attorneys have withheld many of these emails, citing attorney-client privilege.
“Attorney client privilege is a legal doctrine that protects confidential communications between clients and attorneys, made in connection with seeking or conveying legal advice, from disclosure,” Alexander said. “It is a common and well-established privilege, although its precise contours may be controversial in a particular case.”
When McGinity approved the reorganization, he had not been informed Davis filed discrimination complaints against her superiors. Blalock had only claimed the eliminations of the three employees’ jobs at the Foundation was just because those positions were about to end, even without the reorganization.
While Blalock said the reorganization decisions were made as a group by the Foundation’s senior leadership team. UW Foundation Treasurer Mary Garman testified she was not notified of the decision until a meeting was held Nov. 6, 2015. She also testified she had “a feeling” Davis would be included in the reorganization because of the discrimination claims.
The case will not go to a jury if the judge rules in support of the University’s summary judgment motion and dismisses the lawsuit.
