MANAGEMENT OF DISCRIMINATION CLAIMS

San Antonio, June 16, 1996

Eileen S. Goldgeier

The Johns Hopkins University

I. MANAGING THE AGENCY CHARGE.

A prompt and thorough factual investigation is essential to managing the discrimination charge

successfully. Moreover, a resounding agency victory for the university may discourage the

complainant from continuing on to the law suit stage and may deter an attorney from taking the

case.

A. Notify the Insurance Carrier.

Depending on the institution's agreement with its insurance carrier, the first step

upon receipt of a charge may be to notify the carrier about the existence and the

nature of the claim.

B. Notify the Human Resources Manager or Department Chair.

Interview the manager or department chair overseeing the particular department

or office for insight on the supervisor/employee or faculty/student relationship

and any prior situations that the person may have had with other employees or

students. Find out whether the supervisor has made similar decisions. Also,

determine whether the supervisor consulted with the human resources office or

the department chair prior to making the adverse decision and whether the

advice was followed. Also, create a chronology of events leading up to the

adverse decision.

C. Collect Documents and Real Evidence.

1. Review and evaluate the entire personnel or academic file of complainant. It

may be necessary to review files of similarly situated people to determine

consistent treatment. The well documented case is the best case to defend.

Furthermore, contemporaneous documents and notes are the most compelling,

probative, and best evidence.

2. Review the University's policies, practices, and guidelines regarding the

particular employment or academic situation and determine whether the

supervisor followed the University's policies regarding progressive counseling

and discipline, regarding hiring and promotion, or regarding grading and

awarding of degrees.

3. Review the supervisors's notes, calendars, and any E - Mail

communications.

4. Review and evaluate any other relevant documents, including

unemployment compensation records, worker's compensation records, and

internal grievances. Determine whether the university's policies and procedures

were followed in regard to the handling of the internal grievance and internal

complaint.

D. Interview the Supervisor or the Faculty Member.

1. Obtain the full cooperation and assistance of the supervisor, manager, or

faculty member. They have probably never been accused of harassment or

discrimination. This tends to be an extremely tense and emotional time for them

as well. Explain the entire agency procedure with them, including the time that

the process takes and the prohibition against retaliation. Explain your role in the

process and the university's obligation to cooperate with the agency. Also

make clear that you are the institution's attorney, not their personal attorney.

Discuss any confidentiality parameters.

2. Interview and obtain all of the facts on why and how the supervisor made

the adverse decision. The supervisor or faculty member should be able to

articulate the reason for the decision. Review key documents with them to

ensure accuracy and rationale for statements in the documents. If there are

discrepancies in the documents, find out the reasons. It is better to know the

weaknesses in the case at this point, than later after more time and resources

are expended. Give them an opportunity to tell their side of the story. Ask

their opinions on the complainant's motivation in filing the charge.

3. Evaluate credibility and demeanor. Does this person have jury appeal? Is

this person credible? Does this person act the part of a harasser?

4. Write your notes of the interview in affidavit form and give the supervisor or

manager an opportunity to review and sign the affidavit. This document, written

by the attorney, would constitute attorney-work product generally and would

not be discoverable unless you agreed to produce the statement. In re

Convergent Technologies Second Half 1984 Securities Litigation, 122 F.R.D.

555 (N.D. Cal. 1988). This statement serves several purposes: locks person

into story; preserves testimony in the event the witness becomes adverse or

leaves the employ; preserves witness' memory; and enables you to best evaluate

the case.

E. Interview Other Employees or Students.

1. In an harassment case particularly, you may need to interview other people

in the work place or the classroom who may have heard the alleged racial

epithets or sexual comments and observed the personal interactions. The key

to early evaluation of a case is to get a balanced view.

2. Review with the individual the reason for the interview and explain the

agency process with him. Explain your role and the university's obligation to

cooperate with the agency. Reiterate that it is against university policy and the

law to retaliate against anyone for cooperating with an investigation. Also,

explain that you are the institution's attorney, not their personal attorney.

Discuss any confidentiality parameters.

3. Let the person tell his side of the story. Listen and ask key questions: who;

what; where; when; and how. Also ask employee his opinion about whether

the complainant was treated fairly. For any opinions expressed, explore the

factual basis for the opinions, if any. Elicit facts.

4. Again, write your notes of the interview in affidavit form and give the person

an opportunity to review and sign the affidavit. This document, written by the

attorney, would constitute attorney-work product generally and would not be

discoverable unless you agreed to produce the statement. In re Convergent

Technologies Second Half 1984 Securities Litigation, 122 F.R.D. 555 (N.D.

Cal. 1988). This statement serves several purposes: locks person into story;

preserves testimony in the event that the witness becomes adverse or leaves the

employ; enables you to best evaluate the case; and preserves witness' memory.

5. Because rumors tend to abound, let the person know that it is best

not to discuss the case among others, for many reasons including any

subsequent charges of defamation. Also, the communications would be

discoverable.

F. Avoid Claims of Retaliation.

Be explicit that retaliation is against the law whether against the complainant or

any witnesses. If complainant remains employed or enrolled, it may be

necessary to change reporting and supervising responsibilities.

G. Evaluate the Merits of the Charge.

After this investigation and review of the facts, the university should have a good

idea about the merits of the case. If it appears that the complainant would be

able to state a prima facie case of discrimination and the university has no

compelling defense for its actions, now would be a good time to reach a

settlement. The advantages of settling at this point is that back pay, attorney's

fees, and other damages should be at a minimum, and reinstatement, if

applicable, may the most practicable. Also, if the investigation revealed facts

that the university would not want to disclose but would have to reveal during

the remaining agency process and certainly during discovery, settlement at this

point would keep those facts confidential.

H. Write the Position Statement.

1. A chronological narrative is generally most effective in telling the university's

side of the story, with references to supporting documentation.

2. Raise any defenses including timeliness, jurisdiction, and scope.

3. Any discrepancy that you can locate in the complainant's charge should be

raised, including dates of employment, job title, and name of supervisor. This

information weighs heavily against the complainant's credibility.

4. Limit Requests for Information to the particular office, division, supervisor,

or job title.

I. Coordinate the Agency's Factfinding Conference and On-Site Interviews.

Notify the employees of the request for interviews. See Sample Letter attached

as Exhibit A. Counsel may be present at interviews of supervisory or

management level employees.

J. Participate in the Agency's Conciliation or Predetermination Settlement Efforts.

1. If the agency renders a probable cause determination, the university should

consider settlement options. Explore non-monetary settlements that include

reinstatement, job training, or placement services. If the complainant is so

disagreeable and you believe that the university will always have problems with

this person, you may recommend a monetary settlement that buys out the

complainant's desire to work at your institution.

2. Evaluate the weaknesses of the case including the jury appeal or lack thereof

of the supervisor and the complainant. How sympathetic a plaintiff does the

complainant make?

3. The university may decide against settlement if it believes that the agency

investigation was flawed or somehow biased. Remember though, if the case is a

loser, the value of the case may rise due to attorney's fees. On the other hand,

the plaintiff's view of the value of the case may be so high, that the university has

no choice but to start discovery in an attempt to weaken and to raise doubt in

the plaintiff''s mind about his case.

4. Confer with the insurance carrier and evaluate insurance coverage.

II. MANAGING THE PRE-TRIAL LITIGATION.

A. Respond to the Complaint.

1. Review Complaint to see how it tracks the agency charge and whether there

are any new allegations from the agency charge. For example, has plaintiff now

claimed retaliation where that allegation was absent in the charge, or has the

plaintiff now claimed age discrimination in addition to race. If new allegations,

file motion to dismiss that portion of case that fails to meet jurisdictional and

timeliness requirements.

2. Determine whether causes of action sounding in tort are viable. Evaluate

whether discrimination statutes or worker's compensation laws preempt the tort

claims. See, e.g., Clarke v. Kentucky Fried Chicken of California, Inc., 57

F.3d 21 (1st Cir. 1995)(the Massachusetts discrimination statute and worker's

compensation laws preempted the negligence claims); Chroszy v. Wentworth

Institute of Technology, 70 FEP Cases (BNA) 201 (D. Mass. 1996)(the

Massachusetts discrimination statute preempted the negligent supervision claim);

and Maxey v. M.H.M. Inc., 828 F. Supp. 376 (D. Md. 1993)(the Maryland

discrimination statute preempted the negligent supervision claim). File a motion

to dismiss under Fed. R. Civ. P. 12(b)(6).

3. If individuals are named in the law suit, determine whether they can be

dismissed on jurisdictional grounds. See, e.g., Tomka v. Seiler Corp., 66 F.3d

1295, 1314 (2d Cir. 1995)(no individual liability under Title VII); Birbeck v.

Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994)(no individual liability under

the ADEA); Bishop v. Okidata, Inc., 864 F. Supp. 416 (D.N.J. 1994)(no

individual liability under the ADA); Miller v. Maxwell's Int'l Inc., 991 F.2d 583,

587-88 (9th Cir. 1993), cert. denied sub nom, Miller v. LaRosa, 114 S.Ct.

1049 (1994)(no individual liability under Title VII and the ADEA).

4. There may be grounds to dismiss the entire Complaint.

a. where the hirer and firer are the same individual. Buhrmaster v.

Overnite Transportation Co., 61 F.3d 461 (6th Cir. 1995), cert.

denied 116 S. Ct. 785 (1996); Tyndall v. National Education Centers,

Inc., 31 F.3d 209 (4th Cir. 1994); LeBlanc v. Great American

Insurance Co., 6 F.3d 836, 847 (1st Cir. 1993); Lowe v. J.B. Hunt

Transport, Inc., 963 F.2d 173 (8th Cir. 1992); Proud v. Stone, 945

F.2d 796 (4th Cir. 1991).

b. in a disability case, where there is excessive absenteeism. Meyers

v. Hose, 50 F.3d 278 (4th Cir. 1995); Tyndall, supra; Carr v. Reno, 23

F.3d 525 (D.C. Cir. 1994); Guice-Mills v. Derwinski, 967 F.2d 794

(2d Cir. 1992).

c. where an employee has invoked Title IX, rather than Title VII.

Lakoski v. James, 66 F.3d 751 (5th Cir. 1995); Wedding v. University

of Toledo, 862 F. Supp. 201 (N.D. Ohio 1994).

d. where the plaintiff has failed to allege any facts, simply conclusions.

Roberson v. Bowie State University, 899 F. Supp. 235 (D. Md. 1995).

5. File Answer.

B. Prepare and Coordinate the Media Response.

Decide who will respond on behalf of the institution and what will be

communicated. Generally, the best response is one that is dignified and that is

not an attack on the plaintiff's character. Always deny the allegations and state

confidence in the institution's ability to disprove the allegations.

C. Resolve Conflicts of Interest.

If the supervisors and other employees are named in the law suit, determine

whether there is a conflict of interest in representing both the institution and

them. See the following NACUA outlines of other presentations: Management

of Litigation, Stephen S. Dunham (June 23, 1995); Management of Litigation -

- The Individually Named Defendant, Peter G. McDonough (June 23, 1995);

and Coping with the Unexpected in Representing Multiple Clients, Susan L.

Walker & Robin Weaver (June 24, 1993).

D. Use In-House and/or Outside Counsel.

See the following NACUA outlines of other presentations: The Use of Outside

Counsel vs. In-House Litigation, The Use of Different Models: Blends of

Approaches, Byron H. Higgins (November 10, 1995); Selecting, Hiring and

Retaining Outside Counsel, Shelley Z. Green and Bertrand M. Harding, Jr.

(November 10, 1995); and The Symbiotic and Occasionally Productive

Relationship Between In-house Counsel and Outside Counsel, Philip Burling,

Peter H. Rugar, and Lawrence White (June 26, 1993).

E. Develop a Discovery Strategy.

1. Depose the Plaintiff.

a. Generally, it is advantageous to depose the plaintiff as early as

possible to get his side of the story first, in his own words. Be prepared

both factually and legally. Know what facts you need for purposes of

winning summary judgment. "Begin with the end in mind," as Stephen

R. Covey advocates in The 7 Habits of Highly Effective People (1990).

Ask questions that focus on the elements of proof and the university's

defenses. The most successful summary judgment motion is the one

which quotes almost exclusively from the plaintiff's deposition.

b. Lock the plaintiff into a set of facts. Do not accept general

descriptions. If plaintiff expresses opinions, elicit factual basis, if any.

Where plaintiff cannot articulate factual basis for his opinion, summary

judgment is likely. "[A plaintiff's] own naked opinion, without more, is

not enough to establish a prima facie case of . . . discrimination."

Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir.

1988).

i. what happened?

ii. who saw what; who said what; who did what?

iii. when did it happen?

iv. where did it happen?

v. who are the possible witnesses?

vi. how did you react?

c. If plaintiff claims that someone was treated more favorably, find out

who and how. This will help limit discovery when plaintiff will

undoubtably request personnel files for everyone in the particular office.

d. Ask questions regarding damages:

i. when was plaintiff last seen by a doctor?

ii. who is the plaintiff's family physician?

iii. who referred the treating physician in question?

iv. what major life activities have been adversely affected?

v. has plaintiff mitigated his damages?

2. Issue Interrogatories and Document Requests to obtain information

regarding amount of damages and expenses; names and addresses of health

care providers; names and addresses of people with personal knowledge;

names and addresses of employers; information on expert witnesses and the

experts' opinions; medical history; and history of filing claims against other

employers. Seek documents like a journal, log or calendar that plaintiff may

have kept; statements that plaintiff has obtained; efforts to mitigate damages;

and tax returns. Do not use these methods to give plaintiff an opportunity to

prepare his story with drafting by an attorney.

3. Subpoena documents from prior and subsequent employers, educational

institutions, and health care providers, including student health services. See,

e.g., Mann v. University of Cincinnati, 824 F. Supp. 1190, aff'd, 152 F.R.D.

119 (S.D. Ohio 1993).

4. Issue FOIA requests for the agency's files or subpoena those files. See

Greene v. Thalhimer's Department Store, 93 F.R.D. 657 (E.D. Va. 1982).

5. Take the Mental or Physical Examination of Plaintiff.

a. Fed. R. Civ. P. 35(a) requires that the plaintiff has placed his mental

or physical condition in controversy and that the university has shown

good cause. O'Quinn v. New York University Medical Center, 163

F.R.D. 226 (S.D.N.Y. 1995); Eckman v. University of Rhode Island,

160 F.R.D. 431 (D.R.I. 1995); Peters v. Nelson, 153 F.R.D. 635, 638

(N.D. Iowa 1994); Tomlin v. Holecek, 150 F.R.D. 628 (D. Minn.

1993); Robinson v. Jacksonville Shipyards, Inc., 118 F.R.D. 525

(M.D. Fla. 1988); Cody v. Marriott Corp., 103 F.R.D. 421 (D. Mass.

1984); Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.

Pa. 1983).

b. Right to select physician of own choosing? Peters, 153 F.R.D. at

637; Stinchcomb v. U.S., 132 F.R.D. 29, 30 (E.D. Pa. 1990); Liechty

v. Terrill Trucking Co., 53 F.R.D. 590, 591 (E.D. Tenn. 1971).

c. Counsel is not permitted to be present during the

examination.

DiBari v. Incaica Cia

Armadora, 126 F.R.D. 12, 13 (E.D.N.Y. 1989); Cline v. Firestone

Tire & Rubber Co., 118 F.R.D. 588, 589 (S.D. W. Va. 1988);

Neumerski v. Califano, 513 F. Supp. 1011, 1016 (E.D. Pa. 1981);

Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543, 546 (S.D.N.Y.

1978); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595 (D. Md.

1960).

d. Plaintiff's psychiatrist is not permitted to be present during the

examination. Duncan v. Upjohn Co., 155 F.R.D. 23, 26-27 (D. Conn.

1994); Tomlin v. Holecek, 150 F.R.D. 628, 632 (D. Minn. 1993); but

see Zabkowicz v. West Bend Co., 585 F. Supp. 635, 636 (E.D. Wis.

1984); Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.

Pa. 1983).

e. Video taping or recording the examination upon a showing of good

cause. DiBari, 126 F.R.D. at 14.

6. Limit the Scope of Discovery by Plaintiff.

a. Guard against the overly broad and the unduly burdensome

interrogatories, document requests, and deposition notices. Protect the

university from the overzealous plaintiff or plaintiff's counsel who turns a

disparate treatment case into a disparate impact, pattern or practice, or

class action type case

b. While discovery is broad, there are safe guards against harassment,

annoyance, and oppression. Fed. R. Civ. P. 26(c). "Information sought

in discovery must be 'germaine' to the subject matter. . . . . Although

the scope of discovery is broad, it is not unlimited, and the basic

touchstone is always relevance to the subject matter. The 'subject

matter' of the litigation is defined by the pleadings of the parties."

Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C.

1992).

c. Use the allegations in the complaint and plaintiff's own statements

concerning witnesses, location of the discrimination or harassment, and

timing of discrimination.

d. Limit discovery geographically to the campus, office or department

where the alleged discrimination occurred. James v. Newspaper

Agency Corp., 591 F.2d 579, 582 (10th Cir. 1979); Witten v. A.H.

Smith & Co., 100 F.R.D. 446 (D. Md. 1984), aff'd, 785 F.2d 306

(4th Cir. 1986); Duncan v. State of Maryland, 78 F.R.D. 88, 94 (D.

Md. 1978).

e. Protect non-party witnesses and confidential employee evaluations.

Cook v. Yellow Freight System, Inc., 132 F.R.D. 548, 551 (E.D. Cal.

1990)("[T]he initiation of a law suit does not by itself, grant plaintiffs the

right to rummage unnecessarily and unchecked through the private

affairs of anyone they choose. A balance must be struck."); and

Moskowitz v. Superior Court, 187 Cal. Rptr. 4 (1982); Byrne v. N.Y.

Telephone, 55 FEP Cases 544 (S.D.N.Y. 1990); and Craig v.

Municipal Court, 161 Cal. Rptr. 19 (1979). See also Gehring v. Case

Corp., 43 F.3d 340, 342 (7th Cir. 1994)(personnel files were reviewed

in camera and the court held that privacy interests compelled limited

discovery); Goodship v. University of Richmond, 65 FEP Cases

(BNA) 172 (E.D.Va. 1994)(peer faculty assessments were reviewed in

camera).

f. Seek confidentiality and non-disclosure agreements

regarding non-party witnesses' personnel records.

g. Assert FERPA to protect disclosure of other students' academic

records.

h. Protect President, Trustees, and Vice Presidents from deposition on

the grounds of harassment and annoyance. See Digital Equipment

Corp. v. System Indus., Inc., 108 F.R.D. 742 (D. Mass. 1986).

i. Assert a qualified privilege for omsbud officer's files. Kientzy v.

McDonnell Douglas Corp., 133 F.R.D. 570 (E.D. Mo. 1991);

Garstang v. Superior Court, 46 Cal. Rptr. 2d 84 (1995). See also

Fed. R. Evid. 501.

j. If a public institution, assert exemptions under State Public Records

Act, Open Records Act, and Sunshine laws.

7. Decide Whether to Disclose Internal Investigations.

a. Disclosure of this evidence is a key, strategic decision. If the

university decides not to produce the evidence, the university would be

precluded at trial from having the evidence admitted. If the investigation

was thorough, prompt, and it remediated the situation, the university

may decide that it would be advantageous to produce the evidence so

as to use it at trial. If the university does not want to disclose the

information, the university would need to assert a privilege. The answer

to whether the information is discoverable will vary depending on

whether the ombuds officer, attorney, agent of attorney, or affirmative

action officer conducted the investigation of the internal complaint.

b. Who constitutes an agent of an attorney so that the university can

invoke the attorney-work product doctrine? Upjohn Co. v United

States, 449 U.S. 383 (1981). See also Edna Epstein & Michael

Martin, "The Attorney Client Privilege and the Work Product Doctrine,"

1989 A.B.A. Sec. Lit. (2d ed).

c. Documents created by an attorney and an agent of the attorney are

protected by attorney-work product, unless plaintiff can show

substantial need and undue hardship. Fed. R. Civ. P. 26(b)(3);

Admiral Insurance Co. v. U.S. District Court for the District of Arizona,

881 F.2d 1486, 1494 (9th Cir. 1989); United States v. Davis, 131

F.R.D. 391, 403-07 (S.D.N.Y. 1990).

d. Generally, witness statements taken and prepared by attorney are

protected under the attorney-work product doctrine. However, these

may be discoverable if they have been disclosed to third parties (e.g.

the EEOC); if the plaintiff can demonstrate need (e.g. unavailable

witness), or if the statements have been used to refresh the witness'

recollection prior to deposition. Rauh v. Coyne, 744 F. Supp. 1186

(D.D.C. 1990); In re Convergent Technologies, supra; Castle v.

Sangamo Weston, Inc., 744 F.2d 1464 (11th Cir. 1984); In re Martin

Marietta Corp., 856 F.2d 619 (4th Cir. 1988), cert. denied, 490 U.S.

1011 (1989); In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981), cert.

denied sub nom, Doe v. United States, 455 U.S. 1000 (1982).

e. Assert the attorney-client privilege to protect disclosure of

communications and documents. Upjohn, supra; Golden Trade, S.r.L.

v. Lee Apparel Co., 143 F.R.D. 514, 518 (S.D.N.Y. 1992); In re

John Doe Corp., 675 F.2d 482 (2d Cir. 1982).

f. Forbid ex parte communications with former employees who were

involved in the internal investigation. Camden v. State of Maryland,

910 F. Supp. 1115 (D. Md. 1996).

g. Assert the self-critical analysis privilege or other privilege to protect

internal evaluations and affirmative action plans. The courts, however,

are reluctant to recognize an absolute privilege in discrimination cases.

Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987);

Witten v. A.H. Smith & Co., 100 F.R.D. 446 (D. Md. 1984), aff'd,

785 F.2d 306 (4th Cir. 1986); Zahorik v. Cornell University, 98

F.R.D. 27, 32-33 (N.D.N.Y. 1983). But see Siskonen v. Stanadyne,

Inc., 124 F.R.D. 610 (W.D. Mich. 1989)(no privilege recognized in

Michigan). Compare University of Pennsylvania v. EEOC, 493 U.S.

182 (1990)(no privilege recognized for confidential peer review

materials).

8. Depose Other Witnesses.

a. Fact Witnesses.

i. Depose those witnesses who are adverse and for whom you

do not have a signed affidavit.

ii. Prepare the university's witnesses for depositions by the

opposing party. Care should be taken not to have the witness

review material which is being withheld from discovery on

privileged grounds so that the privilege is not inadvertently

waived by refreshing recollection. See Fed. R. Evid. 612.

Also instruct university witness not to discuss testimony with

others and not to compare notes. Always conduct a mock

deposition so that the witness knows what to expect. Consider

use of the video tape, "Preparing for a Deposition in a Business

Case," by J.A. Jannuzzo, Esq. (Matthew Bender & Co

1983)(costs approx. $300).

b. Experts and Treating Physicians.

i. A treating physician is not always an expert retained in

anticipation of litigation under Fed. R. Civ. P. 26(a)(2)(B) and

26(b)(4). See also Patel v. Gayes, 984 F.2d 214 (7th Cir.

1993); Wreath v. U.S., 161 F.R.D. 448 (D. Kan. 1995);

Chakales v. Hertz Corp., 152 F.R.D. 240 (N.D. Ga. 1993)

ii. See also NACUA outline, Effective Use of Medical Experts

in Discrimination Cases, Thomas Flygare (June 24, 1995)

F. Evaluate the Case for Purposes of Mediation and Settlement.

1. Evaluate the case for likelihood of victory and value. Consult with

university's insurance carrier for its experiences on range of settlements and jury

verdicts.

2. When selecting a mediator, consult outside counsel and peer institutions for

referrals.

G. File a Motion for Summary Judgment.

1. Even in discrimination cases, the courts give great deference to universities

for their academic decisions. Wynne v. Tufts University School of Medicine,

976 F.2d 791 (1st Cir. 1992); Hankins v. Temple University, 829 F.2d 437

(3d Cir. 1987); Lewin v. Medical College of Hampton Roads, 910 F. Supp.

1161 (E.D. Va. 1996); Ellis v. Morehouse School of Medicine, Civil Action

No. 1:93-CV-28886-FMH (N.D. Ga. 1996); Andriakos v. University of

Southern Indiana, 867 F. Supp. 804 (S.D. Ind. 1992), aff'd, 19 F.3d 21 (7th

Cir. 1994); Doe v. Washington University, 780 F. Supp. 628 (E.D. Mo.

1991). But see Carlin v. Trustees of Boston University, 907 F. Supp. 509 (D.

Mass. 1995).

2. In the employment setting, the courts tend to treat universities as they do

other employers. Compare Gallo v. Prudential Residential Services, 22 F.3d

1219 (2d Cir. 1994), and Saxton v. A T & T Co., 10 F.3d 526 (7th Cir.

1993), to Ray v. Peabody Institute of The Johns Hopkins University, 11 F.3d

31 (4th Cir. 1993), cert. denied, 114 S.Ct. 2102 (1994), and Ward v. The

Johns Hopkins University, 861 F. Supp. 367 (D. Md. 1994). See also Beck

v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996);

Bina v. Providence College, 39 F.3d 21 (1st Cir. 1994), cert. denied, 115

S.Ct. 1406 (1995); Kobrin v. University of Minnesota, 34 F.3d 698 (8th Cir.

1994); Luxemburg v. Texas A&M University System, 863 F. Supp. 412 (S.D.

Tex. 1994), aff'd, 59 F.3d 1240 (5th Cir. 1995).

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