Court tosses Title VII retaliation claim

A former investigator with a university’s office of equity and compliance saw her Title VII claim against the university dismissed by a federal court.

The woman said the university retaliated against her after she claimed the school allegedly discriminated against a male student who said he was assaulted by his then-girlfriend.

Senior Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia found in favor of the university, granting the school’s motion for summary judgment after determining the former investigator’s activity was not protected under Title VII.

Moon wrote the court’s 12-page opinion in Dufort v. Liberty University (VLW 023-3-010) earlier this month.

Background

Valerie Dufort was an investigator in the Liberty University Office of Equity and Compliance, or OEC. The office handles reports from students and employees of alleged discrimination, harassment or sexual misconduct. Investigators analyze evidence and conduct interviews before writing a draft investigation report on the findings.

In April 2019, Dufort conducted an initial interview with Student A, a male Liberty University student who claimed his then-girlfriend — Student B — “assaulted him when she became angry at him.” Per the opinion, Student A had “deep scratch marks down his neck” at the intake interview and produced text messages and emails supporting his account.

In a debrief with OEC Executive Director Nate Hopkins, Hopkins alleged Dufort said “she was going to be able to prove that what Student A was saying was true,” a statement Dufort denied making.

Hopkins approved a Title IX investigation to proceed, with Dufort as the investigator.

Following an interview with Student B, where she supposedly gave “extremely vague” answers, Dufort told Hopkins the student was likely to file a counter complaint.

In an email to Student A, Dufort said she was “not going to create a counter complaint” against him because of inconsistencies in Student A’s allegations.

Dufort emailed her draft investigation report to Hopkins in May 2019, which was later reviewed by Student B and her attorney. Student B sent evidence to Dufort following the review supporting her story, and asserted a counter complaint against Student A.

When Hopkins informed Student A of the counter complaint, he “became upset on the call because Dufort had told him in an email that no counter complaint would be brought against him.”

After receiving the email from Student A, Hopkins informed both students that Dufort was removed from the case and a new investigator was assigned.

At a meeting following her removal, Dufort “expressed concerns about Hopkins’ discriminatory treatment of Student A.” Dufort continued to have communications with Student A, unbeknownst to Hopkins or other OEC employees. She received a verbal disciplinary action from Hopkins in August 2019.

Student A filed a complaint against the OEC in October 2019, alleging gender discrimination and retaliation stemming from the Title IX investigation. Following this, Hopkins “limited the information that Dufort received about office business.” Hopkins later sought to terminate Dufort’s employment, but was advised to wait until an external investigation concluded.

In an interview with an investigator, Student A said Dufort “acknowledged he was being treated different” because of his gender, while Dufort later told the investigator that “she felt that … if a female student had claimed to have been assaulted like Student A, the OEC would have treated the female student differently.”

The investigator found Student A was not treated differently during the investigation. Dufort eventually resigned from the OEC in June 2020.

Oppositional activity

Dufort claimed she engaged in protected activity under Title VII “by opposing an unlawful discriminatory practice — namely, the OEC allegedly treating Student A differently during its Title IX investigation because of his gender.”

Liberty University moved for summary judgment, arguing Dufort did not engage in protected activity.

Moon sided with the university, noting that Title VII isn’t a “general bad acts statute.”

“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,” he explained. “Thus, it was not reasonable for Plaintiff to believe that the perceived discrimination against Student A — who was not an employee — violated Title VII.”

Moon said Dufort never alleged the university treated her or any other employee differently due to their membership in a protected class. Rather, she “repeatedly complained about Defendant’s alleged discriminatory treatment of Student A,” which failed to constitute a Title VII unlawful employment practice since Student A was not employed by the university.

As such, Dufort didn’t “engage in protected oppositional conduct” under Title VII.

Dufort also contended she was retaliated against by the university after interviewing with the investigator regarding Student A’s claims of gender discrimination and that she engaged in protected activity when filing a complaint about Hopkins’ alleged retaliation.

Moon rejected both arguments.

“[S]he participated in an external investigation about the OEC’s alleged discrimination of Student A during its Title IX investigation, not a Title VII one,” he pointed out. “Thus, she fails to qualify as a participant in a Title VII investigation.”

An additional claim brought under the Virginia Human Rights Act by Dufort also failed. Moon said the code “uses almost identical language as Section 704(a) of Title VII’s anti-retaliation provision.” That claim, therefore, fails for the same reasons as the Title VII claim.

Having ruled Dufort was not engaging in protected activity, Moon granted Liberty University’s motion for summary judgment.