Takeaway: This opinion articulates three different theories by which an employee might establish that an employer's stated reasons for the employee's termination are pretexts for unlawful discrimination. Although the employee's arguments in this case were rejected, employers are well-advised to review pending disciplinary actions in light of these theories: Is the stated reason for the action the real reason? Were others disciplined similarly for similar actions? Was the investigation conducted properly?
A private college in Little Rock, Ark., fired a nontenured female faculty member after she allegedly called a student "retarded" for using a cellphone during class. The plaintiff sued for sex discrimination, retaliation and breach of contract.
One day during class, the professor spotted a student using a phone and took the student's quiz away. After the student left the classroom, the professor allegedly used a profanity and said that "it was insane and retarded for anyone to think it was OK" to use their phone during a test.
The student's girlfriend then left the class and told him that the professor had called him the ableist slur. The student returned to the classroom, dared her to call him that to his face, and allegedly insulted her in vulgar, sexist language. Later, the professor's nephew confronted the student, asking what he'd said about her. A physical fight ensued.
The college opened an investigation, during which the professor failed to disclose that one of the...
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