Davis, Miltenberg: “Title VII Doesn’t Preempt Title IX Employment Claim,” Mass Lawyers Weekly


Professor accuses college of biased disciplinary probe. Title VII of the federal Civil Rights Act did not preempt a Title IX claim brought by a college professor who accused his employer of conducting a biased investigation into allegations that he sexually harassed a student, a U.S. District Court judge has ruled. The plaintiff, Berklee College of Music Professor Peyman Farzinpour, was accused by an undergraduate student of making unwelcomed sexual advances, which he denied. After a subsequent Title IX proceeding, allegedly conducted “through the lens of the student,” the school found the plaintiff responsible and issued sanctions. After Farzinpour allegedly complained about the process to a group of students, he was terminated. In response, he brought a Title IX employment discrimination claim against the school alleging gender bias in its investigation. Berklee argued in a motion to dismiss that Title VII preempted his claim of sex discrimination under Title IX. But Judge Patti B. Saris disagreed. “Title IX provides that ‘[n]o person shall, on the basis of sex, … be subjected to discrimination under any education program or activity receiving Federal financial assistance,’” Saris wrote. “The plain language of the statute suggests that Title IX was intended to provide private recourse for more than just students. … For all of the reasons above, the Court denies Berklee’s motion to dismiss Farzinpour’s Title IX claims.” Saris also denied Berklee’s motion to dismiss retaliation claims that Farzinpour brought under Title VII and Chapter 151B, the Massachusetts anti-discrimination statute. The 23-page decision is Farzinpour v. Berklee College of Music, Lawyers Weekly No. 02-025-21.

Solidifying the position

Boston attorney Tara J. Davis, who represents the plaintiff, said the decision helps solidify the District of Massachusetts’s position on an issue that has “not been extremely clear-cut to date.” More broadly, Davis said, Farzinpour is an important decision because, unlike Title VII, there are no administrative remedy exhaustion requirements before bringing a Title IX employment claim. Additionally, she said, Title IX provides an opportunity for injunctive relief. “Looking at the plain language of the Title IX statute, it’s not limited to students,” she said. “There’s nothing in the language itself that precludes an employee from bringing this type of action.” Boston employment attorney Naomi R. Shatz, who handles Title IX cases, said Jackson v. Birmingham Bd. of Educ. undermines any argument that Title VII displaces Title IX employment claims. In the 2005 Jackson case, the U.S. Supreme Court held that a high school basketball coach could bring a Title IX claim after being fired for complaining that the girls’ team he coached was denied equal treatment. “The litigation in [Farzinpour] shows that some employers may continue to argue or believe there’s a plausible argument to be made that Title VII displaces employees’ rights under Title IX, but I think this opinion is one more nail in the coffin for that argument,” Shatz said. “Attorneys who work in this area need to make sure they know the full scope of their clients’ claims and the potential avenues they can pursue.” Sonja L. Deyoe, an attorney in Providence who handles Title IX cases, flagged Farzinpour as an important decision across the 1st Circuit, not just for Massachusetts. “Whenever another District Court in the circuit makes a decision like this, it will be looked at by the judges in our district,” she said. “It will be given some weight.” Colby Bruno, senior legal counsel at the Victim Rights Law Center in Boston, said the decision is useful in that many people have wrongly interpreted Title IX to signify the rights of an accuser in an on-campus sexual misconduct proceeding when, in fact, its purpose is fairness and equity to all involved in the process. Still, she said, the plaintiff in Farzinpour will face challenges in winning his retaliation claim. “We have seen a lot of retaliation cases, and it is quite difficult to meet the threshold that the adverse employment action is causally linked to the protected conduct,” Bruno said. Similarly, Providence employment attorney Matthew H. Parker pointed out that for the plaintiff to prevail on his Title IX claim, he likely would need to show discriminatory animus by identifying female employee comparators who received more favorable treatment than him or by showing evidence of bias. “He will not be able to point to the complainant [in the underlying harassment claim] as a comparator because she was a student and he was a professor,” Parker said. Berklee’s attorney, Daryl J. Lapp of Boston, did not respond to requests for comment.

Biased proceeding?

In late July 2019, an undergraduate student filed a Title IX complaint with Berklee. According to the student, she and Farzinpour went to several off-campus establishments after class one evening, during which he commented on her figure and suggested they engage in sexual activity. Farzinpour denied the allegations and claimed that the student had, in fact, sexually harassed him by bringing up the topic of her breasts and body shape and sexually propositioning him during the outing. The college put Farzinpour on administrative leave. On Aug. 5, 2019, Farzinpour met with Berklee’s Title IX coordinator, Kelly Downes, who allegedly told him the investigation would be “fair, equitable and balanced.” She also told him he could request an investigation of the student if he felt she had engaged in harassing behavior. Title IX investigator Jaclyn Calovine subsequently interviewed Farzinpour, during which she allegedly displayed behavior indicating a bias against him. For example, she allegedly made a “very surprised and disapproving facial expression” upon learning that he met with students over coffee or meals. On Aug. 8, Farzinpour reported the student for sexual harassment. Downes decided not to issue a complaint, allegedly because she needed to make sure it was not retaliatory in nature. At some point, a group of students told Berklee’s equity office that Farzinpour’s accuser had discussed the Title IX proceeding with them, sharing a false and graphic story of the alleged incident and claiming she had “gotten Farzinpour fired.” Farzinpour contacted Downes with concerns about that apparent breach of confidentiality but received no response. Three weeks later, Calovine allegedly told Farzinpour in a second interview that she conducted witness interviews with the student who reported him and with her boyfriend but not with Farzinpour’s wife. When he complained that the process was unfair and biased, she apparently explained that the investigation was being conducted “through the lens of the student.” The school ultimately found Farzinpour responsible for sexual harassment and imposed a suspension, mandatory training and a permanent ban on use of Berklee facilities for purposes not directly related to his teaching. When Farzinpour returned to campus after his suspension, his accuser and her boyfriend apparently posted messages on social media describing his suspension as a “slap on the wrist.” They also allegedly posted signs about him around campus. Meanwhile, the allegations against him were publicized in a Boston Globe article. Amid public discussion of the allegations, a group of students questioned the plaintiff about the proceedings in class. He claims he defended himself, telling them Berklee’s findings were erroneous and the process was unfair. Farzinpour was subsequently terminated and his lawsuit followed.

No preemption

Berklee moved to dismiss Farzinpour’s Title IX discrimination claim on Title VII preemption grounds, but Saris was unpersuaded. Though federal circuits were “split on the question,” Saris said, the reasoning of the majority — which has held that a private right of action for employees exists under Title IX — was persuasive, given the statute’s plain language suggesting that it was intended to provide private recourse for more than just students. Saris also found that Farzinpour alleged sufficient facts for his retaliation claims to proceed under Title VII and Chapter 151B. “Farzinpour contends that his decision to speak up about the unfairness of the process to the students who approached him in class was a protected activity [and that] Berklee took retaliatory action against him as a result,” Saris said. “[B]ecause Farzinpour was fired, without process, shortly after discussing the allegations of bias with the students, causation could be inferred from the temporal proximity of these two events.” Accordingly, Saris concluded, Berklee’s motion to dismiss should be denied.

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