Coach Bev Kearney was placed on suspension in 2012 when it was discovered she had a long-term relationship with a student. Even though she had won six national track titles at the University of Texas, she was disciplined when the administration learned of the affair. She was then fired. See my prior posts here and here about her lawsuit.  She filed suit claiming retaliation after complaining about discrimination. She also alleged that she had been treated differently than other white, male coaches and teachers who also had relationships with students. Coach Kearney is African-American. She compared herself to Major Applewhite who had a brief affair with a student in 2009 and to an unnamed volleyball coach. As I mentioned in this post, her case based on disparate treatment would be difficult.

It is difficult to show disparate treatment. Every department is different. Every boss has different standards. Coach Kearney’s affair occurred in 2002. Coach Applewhite’s one-night stand occurred in 2009. But, the trial court and the court of appeals were satisfied that Coach Kearney had alleged sufficient allegations to indicate she could show disparate treatment. The employer had filed a plea to the jurisdiction, which is comparable to a motion for summary judgment. As I mentioned, Coach Applewhite’s affair with a student lasted only one night and he was disciplined for it. A volleyball coach from the late 90’s and Major Applewhite’s treatment, said the court, sufficed to show allegations of disparate treatment. The court noted, however, that the employer mentioned for the first time in its reply brief that the situations involving the volleyball coach or Coach Applewhite were not similar enough to Coach Kearney’s situation.

But, as most courts of appeals would, it declined to consider allegations raised for the first time in UT’s reply brief. From the employee’s perspective, that is fortunate. It is difficult to argue that different supervisors were applying the same standards, or that one infraction is truly similar to another infraction. The employer might well have succeeded in arguing that Major Applewhite’s offense was short-lived, lasting just one night, and that he did receive discipline for it. He may not have been fired, as Coach Kearney was, but the employer could argue that his offense was not as bad. Coach Kearney’s offense was a long-term relationship. I think the plaintiff dodged a bullet in their appeal. Lawyers do make mistakes, and this may have been significant. See the decision in University of Texas at Austin v. Kearney, No. 14-00500, 2016 WL 2659993 (Tex.App. Austin 2016), here.

UT, however, has requested an appeal. It will be interesting to see if the employer can squeeze in its argument that the situations of the other white, male coaches should not apply.

Coach Kearney also alleged she suffered retaliation. The Court of Appeals, however, noted that she cannot both claim to have been singled out for unique treatment and that she suffered reprisal for prior complaints of discrimination. The court of Appeals essentially finds that her pleadings negate the retaliation theory of recovery. That ruling strikes me as overly formalistic. But, the Texas Supreme Court is almost certain to affirm this pro-employer finding.