Lawyers for TCU have asked a federal court to reject a discrimination claim filed by a former economics professor, arguing in part that she voluntarily resigned.
But attorneys for Dr. Silda Nikaj, who has alleged that she faced racial and gender discrimination while in the economics department, are arguing that Nikaj never intended to resign, and instead was seeking a leave of absence.
Both sides filed motions in a Dallas federal court last week seeking a judgment.
A spokesperson for TCU released a brief statement to TCU360:
“As a practice, TCU does not comment on pending litigation beyond the papers we file in court. TCU is focused on creating a respectful and inclusive community for all students.”
Along with the claim of unlawful termination, TCU is also asking the court to consider rejecting Nikaj’s claims of:
- A violation of Section 1981, which covers discrimination charges based on race
- Unlawful pay by TCU
- A host of other miscellaneous claims related to teaching assignments, incomplete investigations by TCU, an increase in research assignments and a failure to take an alleged hate crime seriously enough that were filed under Title VII
Nikaj is seeking a ruling on counterclaims filed by TCU last February that she breached her contract because she failed to inform the university that she had accepted a full-time position at the National Institute of Health (NIH) while she was still a TCU employee.
Lawyers for the university argued that Nikaj’s claims under Section 1981 should be barred by the two-year statute of limitations. The events that Nikaj is citing occurred between 2012-2017, meaning they fall outside of the limit.
TCU counsel also said that some of Nikaj’s claims fail as a matter of law.
For both the unlawful termination and unlawful pay claims, TCU presented a host of reasons that assert “legitimate business reasons” for how they acted that aren’t discriminatory. These included:
- Denying her leave of absence request and subsequently accepting her resignation because she violated university policy
- Treating her failure to follow policy as a non-discriminatory reason to consider her actions a resignation
- Paying a male colleague of Nikaj a greater starting salary because he had competing offers and negotiated with the university
- Paying the same male colleague a higher salary after hire because he was rated higher under the economics departments pay-adjustment procedure and received two merit raises
The lawyers cited the statute of limitations for most of Nikaj’s miscellaneous claims, which were made under Title VII. The federal law preventing employment discrimination has a 300-day limitation.
Nikaj filed her discrimination claim with the Equal Employment Opportunity Commission (EEOC) on June 27, 2017, so TCU’s lawyers argue anything before Sept. 2, 2016, is outside of the statute of limitations.
This includes seven of the discrimination claims made by Nikaj, mainly related to actions surrounding her position like disparate treatment and a tenure requirement that allegedly benefited a male colleague at her expense.
TCU’s lawyers argued the rest of the claims weren’t “ultimate employment decisions” required for Title VII discrimination cases and shouldn’t be acted on by the court. These included changes to evaluation criteria and expectations on her attendance at faculty meetings.
“Title VII’s anti-retaliation provision does not shield an employee from those petty slights and minor annoyances that all employees experience,” they wrote.
All of these claims came secondary to the central focus of both motions: The timeline and circumstances surrounding Nikaj’s departure from TCU to the NIH in late 2016.
At issue is whether Nikaj resigned from the university or was terminated, and if it had to do with her complaints of discrimination.
A request for leave
On Dec. 23, 2016, Nikaj emailed a letter to then-Dean of the AddRan College of Liberal Arts Dr. Andrew Schoolmaster and then-Provost Nowell Donovan informing them that she would be going “on leave from TCU without pay and no longer permitted to operate in an official capacity for TCU.”
The letter came two weeks after the NIH confirmed to Nikaj that she had accepted a full-time appointment with a one-year trial period, and just three days before she began working for them.
Lawyers for TCU claimed in their motion for judgment that the timeline of Nikaj’s actions violated the university policy for requesting leave.
According to the policy, applications are due to the Provost no later than Nov. 15 of the academic year before leave.
During a deposition for the suit, Nikaj was asked why she notified TCU of her intent to go on leave only days in advance of leaving.
“It was the end of the semester, so, you know, I needed time to finish up the semester, and I needed time to think about what I needed to do,” she said. “And I’m sorry. Just, you know, I must have been really busy at that time.”
TCU claimed that Nikaj’s letter, which was sent while the university was closed for the holiday, “created havoc on TCU’s employees.”
Nikaj was under contract to teach two classes in the upcoming spring semester and expected to advise 30 students.
One class, labor economics, was dropped by the university and the enrolled students were placed in an urban economics class.
On Jan. 3, 2017, Nikaj formally submitted her application for an 18-month unpaid leave from the university while she worked at the NIH.
Dr. Zack Hawley, an economics professor at TCU, testified that he had never heard of a tenure track assistant professor like Nikaj requesting an unpaid leave of absence.
Two days after she submitted the request, Donovan denied it and said that Nikaj had “constructively resigned,” because of her actions.
“In direct contravention of your employment agreement, you have accepted and commenced working in a full-time position at the [NIH] in Maryland,” the provost wrote in his letter to Nikaj. “It is disappointing that you never notified your department of your application for this external position and that you did not initiate your leave request or notify TCU of your employment decision until the very last minute.”
Donovan concluded the letter by accepting Nikaj’s resignation and she received her last paycheck at the end of the month.
Both motions covered the emails and discussions had by TCU officials in the two-week period between Nikaj’s initial letter and the provost’s acceptance of her resignation.
Dr. Robert Garnett, then-chair of the economics department, said he believed that Nikaj’s request for leave should be denied because she did not follow the policy.
Other colleagues agreed and some said that she should be fired because of her actions.
Vice-Chancellor and Chief Human Resources Officer Yohna Chambers was also involved in the discussions and said in one email that TCU’s “employment-related dilemma is whether or not we choose to continue her employment with TCU.”
Also factoring into the discussion was Nikaj’s complaint letter to the TCU Title IX office that was sent the month before she went on leave.
Nikaj asked the university to look into her “disparate treatment and retaliations for my claims of disparate treatment.”
Garnett learned about the complaint in the days after Nikaj revealed she was going on leave and emailed Dr. Darron Turner, former chief inclusion officer, to check its status.
University lawyers argued in their motion that this timeline of events proves that Garnett was not retaliating against Nikaj when he recommended that her leave request be denied.
An HR employee was in the midst of investigating the complaint when Nikaj left the university, according to TCU’s motion. Nikaj has claimed retaliation because the university did not complete the investigation.
The employee had planned to conduct interviews after the winter holiday. When Schoolmaster asked Garnett to check Nikaj’s office in early January, it was cleaned out.
Chambers viewed the Title IX complaint and Nikaj’s leave request as separate matters, according to an email in Nikaj’s brief.
After receiving Nikaj’s application for formal leave and additional documents related to her negotiations and employment with the NIH on Jan. 3, Chambers recommended to the provost that TCU should deny the request and accept Nikaj’s resignation.
Chambers wrote in one email to Garrett and Schoolmaster that university attorneys seemed on board with accepting Nikaj’s resignation.
“I’ll keep you both posted once I hear from our attorneys,” she wrote. “I had a preliminary conversation and they seem willing to support our ‘accepting her resignation’.”
Nikaj’s lawyers argued in their brief that TCU violated their own policy by not reaching out to Nikaj for alternatives to termination.
“While this retaliation took several different forms, the end result was that TCU terminated her employment and instead of following its own policy, TCU tried to say that she resigned,” they said.
The debate over Nikaj’s departure made up a bulk of the arguments from both sides.