March 22, 2017

For Whom The Clock Tolls

The case is McKeny v. Middleton, decided on 3/16/17 in the Southern District of Ohio [2017 U.S. Dist. LEXIS 37912].  Timothy McKeny, an assistant professor in the Department of Teacher Education at Ohio University, was denied tenure by Dean Middleton on April 1, 2012 and the decision was ultimately upheld by the (University) President McDavis on November 26, 2013.  McKeny filed a lawsuit with the EEOC claiming discrimination based on sexual orientation.  Did he have a case?  We’ll never know.

Here’s what happened. McKeny filed two claims, one under Title VII, which has a 300-day statute of limitations in deferral states such as Ohio, and one under Section 1983, which has a two-year statute of limitations in Ohio.  McKeny filed the Title VII claim with the EEOC on August 14, 2014, a year and half after Dean Middleton’s decision, and the Section 1983 claim on December 18, 2014, more than two years after Dean Middleton’s decision. Here is the sequence of events.

McKeny was denied tenure by Dean Middleton on April 1, 2012 despite a favorable recommendation from his department. Middleton criticized McKeny’s scholarship primarily for lacking publications in peer-reviewed journals. McKeny’s mistake was that he could have filed both claims at this point and still initiated a series of internal appeals.  Instead, he filed both charges after the respective limitation dates, assuming that the clock started after his appeals were denied, rather than when Dean Middleton’s April 1, 2012 decision was announced.  As a result, the university was granted summary judgment on both the Title VII and Section 1983 claims.

McKeny’s first appeal was directly to Dean Middleton, who denied the appeal on June 8, 2012 (68 days have passed since April 1, 2012).  He then appealed to the provost (Benoit) arguing that Dean Middleton failed to give his application adequate consideration and due process.  Provost Benoit denied the appeal on October 2, 2012 on the same grounds cited by Dean Middleton (184 days have passed).

McKeny continued his battle appealing to the Standing Committee on Promotion and Tenure of the Faculty Senate. The Committee supported McKeny citing “a ‘bewildering disconnect’ between the recommendation of the departmental committee and Dean Middleton’s decision in terms of their respective expectations for scholarship”.  The Committee’s decision was made on December 2, 2012 (246 days have passed).  The ball was then back in Dean Middleton’s court and she again denied the appeal on January 28, 2013 (304 days have passed).  At this point, McKeny is beyond the 300-day limitation for Title VII.  McKeny did not stop. He next appealed to the university president (McDavis), who denied the appeal on November 26, 2014.  At this point, McKeny’s time has run out on the Section 1983 claim.

The reasons for starting the clock at April 1, 2012 are based on the faculty handbook, which states that the decision to deny tenure begins at the point of the dean’s decision.  That said, any claims against the dean or provost would be time barred.  However, there would be a fresh clock if there was proof that President McDavis knew of McKeny’s sexual orientation and acted with discriminatory animus. The court ruled, however, there was no evidence that McDavis knew of McKeny’s sexual orientation and, therefore, could not have acted with discriminatory animus.

There is no indication in the court ruling as to whether McKeny’s claim had any merit.  We know from the court ruling that President McDavis could not have acted with discriminatory animus because he had no knowledge of his sexual orientation.  Therefore, McKeny’s only route to victory would have been with proof that either (or both) the dean and the provost knew of his sexual orientation and that such knowledge could be connected to denial of tenure and promotion.  McKeny never raised the issue of animus against any of the principals.

I have one further observation. I would have thought the actual deadline date for Title VII was day 240.  In the landmark Supreme Court ruling in Mohasco v. Silver (1980) [447 US 807], Silver filed charges with the EEOC 291 days after receiving a termination notice (he claimed discrimination based on religion). Since Silver worked in a deferral state, the EEOC deferred to the state agency and re-claimed the case on day 357. The Supreme Court ruled that the 300-day statute of limitations expired before the claim was officially filed with the EEOC and Mohasco lost his right to sue.  By my calculation, under Mohasco, McKeny lost his right to sue after the faculty senate’s ruling on December 2, 2012 at which point 246 days had passed.  Of course, this issue is moot because McKeny’s EEOC filing was itself beyond day 300.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

 

 

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