A University of Montana faculty member who is one of four plaintiffs in a Title IX lawsuit against the campus and university system offered enough evidence to proceed with her gender discrimination claim, according to an order this week from a U.S. District Court judge in Missoula.
“Victims of discrimination seldom can prove their claim of discrimination by direct evidence, as perpetrators of discrimination rarely leave ‘smoking gun’ evidence attesting to discriminatory intent,” wrote Judge Brian Morris in the Monday order rejecting the defendants’ motion to dismiss. “Discrimination most often arises through ‘discreet manipulations,’ usually ‘hidden under a veil of self-declared innocence.’”
In August, three women who were former high ranking UM administrators — Cathy Cole, Barbara Koostra and Rhondie Voorhees — and one current faculty member, Mary-Ann Sontag Bowman, filed a gender discrimination lawsuit against the Missoula flagship and the Montana University System. The plaintiffs alleged a hostile educational environment and retaliatory culture against women contrary to Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex.
UM and the MUS have described the claims as “baseless and without merit” and pledged to mount a vigorous defense. In particular, the defendants filed a motion to dismiss the allegations by Sontag Bowman because she claimed in part that UM favored a male faculty member to serve as chair of the School of Social Work but never herself applied for the position.
The defendants argued that since the faculty member never applied for the job, UM never took any action against her, but the judge disagreed that conclusion could be drawn at this point: “Defendants’ argument fails to recognize that an adverse action need not be a formal rejection or dismissal, but can be the constructive equivalent.”
The order cited a case where the Ninth Circuit found a doctoral candidate who alleged “gender animus” voluntarily left the University of Oregon but established an adverse action comparable to constructive discharge. In other words, the employer “creates working conditions so ‘extraordinary and egregious (as) to overcome the normal motivation of a competent, diligent and reasonable employee to remain on the job.’”
Sontag Bowman still must prove her claims, the judge said. However, at this stage in the court proceedings, she does not need to present a “smoking gun.”
“The alleged facts that the University of Montana plainly preferred the only male candidate in the School of Social Work, and that he became the school’s chairperson, represent sufficient circumstantial evidence for Sontag Bowman’s claim to survive a motion at the pleadings stage,” the order said. “The University of Montana remains free to raise the issue on summary judgment if Sontag Bowman fails to provide sufficient evidence of discrimination.”