Virginia Lawyers Weekly VA Lawyers Weekly
Where an investigator in Liberty University’s Office of Equity & Compliance, or OEC, alleged that Liberty retaliated against her for complaining that Liberty discriminated against a male student during its Title IX investigation and for participating in an investigation about the student’s complaint, but Title VII doesn’t protect students from sex discrimination, it was unreasonable for the investigator to believe that the perceived discrimination against the student — who was not an employee — violated Title VII.
Background
Valerie Dufort worked as an investigator in Liberty University’s OEC. In this suit, she alleges that Liberty retaliated against her for complaining that it allegedly discriminated against a male Liberty student during its Title IX investigation and for participating in an investigation about the student’s complaint of the alleged discrimination. She claims this retaliation violated Title VII of the Civil Rights Act of 1964 and the Virginia Human Rights Act, or VHRA. Defendant moves for summary judgment.
Opposition
An employee engages in protected activity when she opposes actions that are “actually unlawful under Title VII” or that she “reasonably believes to be unlawful” under Title VII. Plaintiff argues that she engaged in protected oppositional activity when she opposed the OEC’s actions because she reasonably believed that the actions constituted unlawful gender discrimination against the male student.
However, “Title VII is not a general bad acts statute.” It “does not prohibit private employers from retaliating against an employee based on her opposition to discriminatory practices that are outside the scope of Title VII.” Specifically, Title VII does “not prohibit sex discrimination against students; rather, Title IX protects students from sex discrimination” and provides anti-retaliation protections for reporting sex discrimination of students. Thus, it was not reasonable for plaintiff to believe that the perceived discrimination against the student–who was not an employee–violated Title VII.
Moreover, plaintiff does not allege that she complained about defendant treating herself or other employees differently because of their race, color, religion, sex or national origin. While she repeatedly complained about defendant’s alleged discriminatory treatment of the student, this fails to constitute an actual unlawful employment practice under Title VII because the student was not defendant’s employee. Thus, plaintiff did not engage in protected oppositional conduct under Title VII.
Participation
Plaintiff also did not engage in protected conduct as a participant under Title VII. “Activities that constitute participation are outlined in the statute: (1) making a charge; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation, proceeding, or hearing under Title VII.” Plaintiff argues that defendant retaliated against her after she was interviewed regarding the male student’s gender discrimination complaint against the OEC.
She also claims that she engaged in protected activity when she filed a complaint with defendant’s then-director of employee relations about alleged retaliation in response to her decision to participate in the external investigation. However, she participated in an external investigation about the OEC’s alleged discrimination of the student during its Title IX investigation, not a Title VII one. Thus, she fails to qualify as a participant in a Title VII investigation.
VHRA
Plaintiff also brings a claim under the VHRA for defendant’s alleged retaliatory conduct. Because Virginia Code § 2.2-3905(B)(7) uses almost identical language as § 704(a) of Title VII’s anti-retaliation provision, the court finds that, for the same reasons discussed earlier, her VHRA claim fails as a matter of law.
Defendant’s motion for summary judgment granted.
Dufort v. Liberty University, Case No. 6:21-cv-00054, Jan. 9, 2023. WDVA at Lynchburg (Moon). VLW 023-3-010. 12 pp.
