The Nitty Gritty of Litigation

Up to this point, I haven’t spent a lot of time discussing what the process of filing a lawsuit against one’s university actually entails. Most of us have probably heard things like “oh, you can’t possibly sue University of X because they have endless resources and will drag things out;” or “it’s better to just ignore the bad/illegal behavior and look for an internal solution.” These things are, broadly speaking, true. But, sometimes, there just isn’t another answer.

In my case, I filed suit in January 2019. The events that make up the background of the current litigation began in Spring 2007. In other words, I spent 12 years desperately hoping that the problems would be addressed by those who were responsible for protecting my right to a workplace free of hostility. To be fair, it was all complicated by the fact that UT pretended that it was trying to address the problems; and made me believe that they had my interests at heart. Since 2013, I have tried Plans A-Z with no longterm success. Once the knowingly false but extremely damaging Title IX suit was filed against me (see an earlier post of that episode), I realized that I could not just hope to put my head down and disengage. I was being actively attacked and, more importantly, it wasn’t just an attack on my person but on my job.

So here we are, another 3 years later. In the state of Texas, any lawsuit about a workplace complaint requires the filing of an EEOC complaint. This has to happen no more than 180 days after the incident. I filed in September 2016, in response to being failed on a post-tenure review when the process was full of shenanigans intended to make it appear that I had blown off the review and had been putting my feet up during the years I was working outside of the Classics Department. It was very clear that, in failing me on this review, my chair hoped to send me the message that she was the boss and that I had better get in line and be appropriately obedient.

Filing an EEOC complaint is not a way to make friends in the workplace, even if it is a requirement for preserving the right to appeal a trial verdict. I would have filed it much closer to the event except that I was battling what I now know was the onset of more severe Addison’s in addition to the rapidly declining health of my father. I had been told in December 2015 that he had mere months to live. Filial piety had me flying to Salt Lake City as often as I could, and trying to help my mother (my father’s ex-wife) cope with everything that came with turning her small, narrow-halled home into a hospice complete with round the clock caregivers.

By the time I filed the EEOC complaint, I had been hospitalized twice and was on medical leave as the complaint was being investigated. When I tried to return to work using the Modified Instructional Duty option, as I had done in Spring 2011, I was informed that this was not part of UT’s official policy and that I could only return to work if I showed up in the office on campus. Of course, the Deciders knew that there was no way I could do that. Yes, my PCP’s medical assistant had accidentally said that I could drive but, well, no. My blood pressure was all over the place and it would have been suicidal and homicidal for me to get behind the wheel. I proposed several projects that did not require my presence on campus but, unsurprisingly, none of these were approved.

The underlying problem was one of policy. UT did not and still does not have a clear process for faculty and lecturers who suffer from chronic illnesses to return to work. The nature of our illnesses means that we cannot simply take the semester off, knowing that the events are unlikely to repeat themselves. During Covid, UT made some important adjustments to medical leave policies, including allowing other faculty to donate theirs to individuals (feel free to send your gazillion accumulated days my way, UT friends!); and making it somewhat less complicated to use the group pool, which contains the accumulated medical leave of faculty who retire.

Still, none of these are great solutions. I know I am not the only faculty member who has had to deal with recurrent periods of very active and unpredictable illness. It is absurd to me that both mothers and fathers of new babies (including, appropriately, adopted children) are entitled to a full semester of Modified Instructional Duty but faculty with disabilities are left to the mercy of their unit leaders. This is a pretty obvious policy gap that needs to be addressed ASAP.

Once we received the results of the EEOC “investigation” (really, just a piece of paper that says that I am free to file a lawsuit), I dallied. I was not especially eager to file a lawsuit. I thought I knew how difficult it would be, especially when my health was so fragile. Little did I understand that it would be far more difficult than I was capable of imagining at the time. Now that I am nearing the finish line, I feel somewhat well-positioned to offer the observation that it will be one of the hardest things one ever does. Especially for high achieving academics who are used to a steady diet of praise and affirmation, there’s nothing quite like being told that you suck over and over and over again. It took me awhile to not take anything personally — even when it was absolutely intended to be taken personally.

There are several basic steps that all lawsuits will follow unless there is a settlement. First, you file. Then you work with your attorney(s) on discovery requests. What documents will be necessary to argue your case? Who should be deposed prior to trial? In my case, the Discovery period lasted exceptionally long, in part because my original attorney became very ill and eventually passed away; and in part because it took all my energy just to teach my classes and do some basic service and research. The other thing that will almost certainly draw things out? If you are suing a state, they are represented by the state AG’s office. The Legal Affairs offices on campus as well as the Assistant AG’s office see a lot of churn as lawyers leave for private practice. I think there have been something like 5 AG’s lawyers on my case over 3 years. If we go to trial, their lawyer will have taken over the case in December 2021 and will not be the same lawyer that did my deposition.

Unsuprisingly, UT did several huge document dumps on my attorney in response to our requests. It took time and office staff to index everything and extract out the important documents. Prior to depositions are the interrogatories — a long list of written questions to which one is supposed to answer as if under oath. Those took me several days to work through in May 2020, as the pandemic was first hitting the US and I was dealing with some health problems.

Depositions come next. In a deposition, the opposing lawyer asks you a lot of questions in an attempt to get you to commit yourself to a harmful position, perjure yourself, etc. A lot of it is performative. The AG’s lawyer who deposed me yelled at me repeatedly for answering her questions. In several cases, the AG’s lawyer had her facts wrong and I made the mistake of trying to answer the question I thought she was trying to ask. Especially for academics, it’s a challenge to just say as little as possible and offer the opposing lawyer no help whatsoever. The main thing, though, is to always tell the truth, the whole truth, and nothing but the truth. You do not want to have your credibility destroyed in front of a jury at trial.

I made the decision not to read all of the discovery documents as soon as possible. My health was fragile and I knew that it would be an incredibly difficult experience. I had just euthanized my beloved 8 year old cat Pippy, after two years of diabetes that turned into lymphoma. My heart was broken; my soul was stressed by the potential dangers of a viral pandemic for a severely immunocompromised individual; and I knew that the words I read would be seared on my brain forever. I know why I made this choice and I think it was probably the best choice for me; but I do not generally recommend it. You want to know what evidence you have, especially in a case that spans many years. Indeed, when I did read the discovery, a lot of the emails that I had never seen clarified exactly what went down and why.

My deposition was fine. I should have read the actual complaint filed by my attorneys because, at the time, I did not realize that they were pursuing gender based harassment charges. On the one hand, the complaint is entirely true. On the other, it is impossible to prove because I am the only individual — male or female — in my position in the department. And the gender based harassment was very much a result of my age and gender. Specifically, a bizarrely powerful fear that I would be promoted to Full Professor before my supervisor. She could tolerate men passing her up; she handled her relative peers ok. But there was something about having a two decades younger woman come in and thrive while my supervisor’s academic career was not thriving. Unfortunately, to be able to prove any of this, I would need to be part of a group of other similarly situated faculty of both genders and I am not — everyone else my age/stage had the wisdom to get out of Dodge.

Otherwise, I misunderstand one question for which I have abundant documentation illustrating my views at the time; and answered the questions. One quickly realizes that academia is a really weird workplace. Even across departments at the same institution, it is not easy to know what is business as usual vs special action. When I look at things from the perspective of my own attorney, I realize that there is a ton of Inside Baseball happening (and this means that, as a client, I can’t just ignore the lawsuit. I have to be actively involved in nearly every phase of it). I am very grateful for the time I spent outside of my department, working in our College office and then the Provost’s office. Those two years armed me with essential knowledge of how UT Austin works and have made me much more able to break down claims by UT in their defense.

Once the period of discovery is closed, it is closed. No matter how much we might wish we had asked for document XYZ, we can’t ask for it and vice versa. There are often ways around this but it’s an interesting element of a process that is aimed at getting at the truth. This is especially frustrating when episodes of retaliation comes into the picture; or someone provides you with new and relevant information.

With the end of discovery comes the requirement to engage in mediation. At any point in the process I am describing, the parties can attempt to negotiate a settlement. In fact, we had been approached by one of the long gone AG’s lawyers back in November 2019 about the possibility of settling. It would have made a lot of sense at that point. Although I had suffered substantially, we were not that far into the more costly and time consuming parts of litigation. Unfortunately, this would be the first of several instances when UT refused to engage in good faith negotiating. I don’t remember exactly what their counter was, but it was laughable. As well, it was clear that UT Legal had simply handed my settlement offer to my department chair. This struck me then and continues to strike me now as a bizarre and counterproductive move, especially because this individual had been very vocal about her opposition to any settlement (presumably because she viewed it as an admission of guilt when it is very precisely not that). We gave UT a few weeks to return with a reasonable counteroffer or to end settlement talks. Now, in January 2021, we were doing the same process but in real time and with a mediator agreed upon by both parties.

In a lot of ways, my case is exactly the sort that should settle. Still, I had no expectation of getting anywhere and felt that the required mediation was another waste of a day. As the say went on, I became more sold on the idea that most of my other requests for relief could be addressed by a supportive department chair; and that the most important thing for my future as a scholar was to get out of the Classics Department. I agreed to a frankly terrible deal on every front because they agreed to move my position to Religious Studies. I hoped that they would be highly motivated to make the move happen because, otherwise, the deal cost them very little. As I have written about at the start of this blog, my Dean was unable to make this move happen — in part because, it seems, she did not really feel invested in making it happen and seemed to still be hanging onto my chair’s narrative that I was a problem department member. Understandably, my dean was not eager to make a problem faculty member someone else’s problem. Equally problematic, though, was the total absence of effort to meet with me, discuss my academic work and teaching; and how it would fit into the Religious Studies department. In any case, the possibility of moving my position was burned, likely for the duration of my career at UT.

In late June and early July, there was some discussion of coming up with an alternative settlement but, unsurprising to me, nothing materialized. At this point, with settlement talks/mediation having failed to result in a solution, we set a trial date. Because I am on leave this spring semester, I did not want to set the trial for late January. Had I done so, it would have been pushed back anyway because of the change of attorneys representing UT. I decided to go for the week after the end of classes in the spring term: May 9–13. It may be that we need longer than a week.

When my attorney spoke with UT’s new attorney, there was a request for a continuance — something that I cannot grant at this point. We are hitting the 15th anniversary of the events that set the stage for litigation. Covid has retreated and we should be able to try the case as planned. The new attorney also wanted to explore the possibility of reaching a settlement. After several failed attempts, I was not especially eager to waste more time on the back and forth but my own attorney urged me to participate. It also seems that UT has come to understand that it is nonsensical to involve someone so implicated in the complaint in any settlement discussions. I made a settlement offer and UT responded with something that might generously be called a lowball counter. I could not waste more time from my precious research leave going back and forth with no real hope of reaching an agreement. Eventually, on the prodding of my attorney, I countered the lowball and UT came back with the first even close to the ballpark offer in all these years. It was still not something I could even begin to consider accepting but it was not absurdly ridiculous. I countered. And now we wait. The ball is in UT’s court. Yes, it is Spring Break and people aren’t always easily reachable. But we will see.

In the meantime, UT’s attorney has filed a Motion for Summary Judgment, which will be heard on 7 April. So I am spending at least one day this week reviewing the motion and giving my attorney the documents or statements that refute various claims. I was interested to see UT claim sovereign immunity — basically, you can’t sue us because we are a state entity and don’t have to play by the law. Michigan State tried to invoke the same defense in the Larry Nassar case. That case settled for hundreds of millions of dollars. But I find it a fascinating and, frankly, rather awful concept. Obviously, UT still has to obey state and federal law — as demonstrated by the verdict I posed about yesterday. But I want to learn more about sovereign immunity. It seems like something a political entity like a country (eg Ukraine) should be able to invoke to declare any invasion by another country prima facie illegal.

So this is where I am now: working through the Motion for Summary Judgment to assist my lawyer on the specifics of various claims/accusations. He will handle all the legal mumbo jumbo (and yes, read one of these documents and you will immediately understand the phrase “legalese”). Having spent the summer and part of the fall working very carefully through all of the discovery documents, I am well situated to make suggestions for responses. This is, mutatis mutandis, what I do for a living; and, these days, I don’t take any of it personally. I know the truth. I suspect UT knows the truth too. Litigation is an incredibly unpleasant, long, expensive (both in terms of time/energy and money), antagonistic process. It should be the very last choice, as it was for me. By the time you get to where I am now, there really isn’t any #winning. It’s just a matter of hoping not to lose; and, most of all, seeing that an end is in sight (apart from appeals if we go to trial).

I find myself very much on the fence about settlement vs trial. Like many victims, I want that day in court. I want people to have to be publicly accountable for their horrible and illegal actions, especially because those actions made me more sick and cost me years of my life in sickness and recovery. I want it to be clear that, contrary to rumors, I am not attacking an innocent victim with this lawsuit; nor is it a nuisance lawsuit. I want the lies and deliberate misstatements outed. I am not interested in vengeance per se, but in the truth. I have chosen not to discuss matters that are being directly litigated in this blog, for what I hope are obvious reasons.

If this lawsuit ends up in a settlement, I have no plans to discuss any of it publicly. I can’t move on with my life while dwelling in the past, especially such a painful past. I am very aware that I should hope that we can reach a settlement that feels fair to all sides, but most of all to me. In the meantime, though, I will be picking through this motion in preparation for the hearing on 7 April. My own completely uninformed sense is that this hearing will be a kind of testing ground for various arguments, especially because the current attorney is new to an extremely well-documented and complicated case that depends substantially on knowing what is and isn’t common practice in a department.

I am writing such a detailed post about the actual process of litigating a case so that others will know what they are getting into. I had no choice but to sue and I did have a pretty good idea of what I was getting into. I am quite sure that this case would have settled long ago if I taught at a private university. One of the strange features of being a public employee of the state is that, yes, UT has endless resources and yes, they can drag things out a lot. But, once you get to the stage I am at, your attorney is a specialist in employment law while the university’s may not be. Your attorney knows your case very well. It will be interesting to see how the next few months play out. I am immensely grateful to have so many writing projects to distract me from a situation over which I have no real control.