What is not alleged in a lawsuit can, paradoxically, sometimes serve as more of a cautionary note than what is, for its very absence brings it prominence. Such is the case with Saliba v. Five Towns College, 2014 WL 92690 (E.D.N.Y. Jan. 10, 2014), in which the plaintiff, a former Assistant Professor of English, claimed that the defendant, Five Towns College, had discharged her for raising concerns about a colleague’s alleged sexual harassment of his students, thereby violating the anti-retaliation provisions of Title VII. As a jurisdictional prerequisite to her lawsuit, Ms. Saliba had filed a complaint with the Equal Employment Opportunities Commission [“EEOC”], in which she similarly alleged that she had been retaliated against for having formally complained about “a sexual harassment issue involving a professor and his students.” 2014 WL 92790 at *1.
The college moved to dismiss Ms. Saliba’s lawsuit, arguing in part that she had failed to state a claim of retaliation under Title VII. The court agreed, reasoning that the co-worker’s alleged sexual harassment of students – as opposed to another employee – was not an employment practice, and thus the plaintiff’s attempts to report it did not constitute a “protected activity” under Title VII. In what in football might be termed a “Hail Mary,” the plaintiff then sought to assert that she had actually been alleging racial discrimination based upon the college faculty being overwhelmingly white, but the court made short shrift of that argument, noting that the plaintiff had neither alleged racial discrimination in her federal court complaint nor raised it with the EEOC.
In considering Ms. Saliba’s ill-fated foray into federal court, neither her reliance upon Title VII nor her subsequent attempt to recast her claim are as notable as the cause of action she did not include. More specifically, one is left to wonder whether Ms. Saliba would have gained more traction had she brought her case under Title IX. In Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S. Ct. 1497 (2005), the United States Supreme Court held that an adverse employment action that results from opposing sexual discrimination by a co-worker against students is actionable as retaliation under Title IX. Furthermore, unlike Title VII, Title IX does not require that a plaintiff first file such claims with the EEOC. Although an individual can seek the intervention of the United States Department of Education’s Office for Civil Rights [“OCR”], she is not required to do so, and the failure to involve OCR does not serve as a jurisdictional bar to a subsequent lawsuit. Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946 (1979).
Although in Saliba, Five Towns College emerged unscathed, had the plaintiff proceeded under a different legal theory, the outcome might not have been so clear cut. As such, Saliba serves as a reminder that Title IX does not fall solely within the purview of athletic directors or of educators who have been tasked to serve as Title IX coordinators. To the contrary, Title IX has an employment component, one which brings with it the possibility of monetary damages, and thus, it is recommended that human resource professionals who work in education settings become versed in the law.