Univ. responds to an HR employee’s suit alleging employment discrimination

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August 23, 2019

A human resources employee is suing Brandeis for over $2 million on three claims of discrimination based on her race, color, age, sex and decision to retaliate against mistreatment. Counsel for Brandeis University denied all allegations of discrimination in a reply on June 28th. 

The suit, filed by former Vice President of Human Resources Robin Nelson-Bailey after a shake up in the Brandeis Athletics department, names not only the university as a defendant, but also President Ronald Liebowitz, Executive Vice President for Finance and Administration Stewart Uretsky and Interim Vice President for Human Resources Larry Lewellen. 

“I believe that Robin was treated illegally,” said Nelson-Bailey’s attorney, Matthew Fogelman of Fogelman & Fogelman LLC to The Brandeis Hoot. “It’s my job to advocate for a client, stand up for them, help them to have a voice and try to not only fight for their rights but really, in this situation, help to clear her name because her name has been tarnished.”

The suit claims that Nelson-Bailey, a 43-year-old African American woman, complained of personal issues as early as her hiring in 2016 and was constantly second-guessed, unlike white male employees. The suit alleges that both before and after an investigation into Brandeis Athletics—which ultimately resulted in her demotion—Nelson-Bailey was questioned and faced retaliatory conduct when she complained, preventing her from doing her job. 

The suit alleges that the conduct of the three defendants resulted in Nelson-Bailey’s loss of wages and benefits, reputational harm, emotional stress, anxiety and depression, according to documents obtained from the Massachusetts Commission Against Discrimination and Middlesex County Court House.

The case—originally filed with the Massachusetts Commission Against Discrimination (MCAD) on November 19, 2018—was moved to Middlesex County Court on April 23, 2019. 

“This case is more appropriately litigated in court. We plan to have a trial in this case one day,” Fogelman said. “We want to try the case before a jury of Robin’s peers, and in the MCAD, you don’t get a jury trial, you just get a hearing by an MCAD officer, which for some cases, can be perfectly appropriate.”

The Hoot contacted Liebowitz, Uretsky and Lewellen for comment before publishing an earlier version of this story. Director of Media Relations Julie Jette responded that they could not comment on a pending lawsuit against the university. The three men are being represented by Greg Manousos of Morgan, Brown & Joy, LLP, according to Fogelman. 

To date, Nelson-Bailey is still employed at Brandeis as Assistant Vice President of Special Projects in the Human Resources Department. 

Allegations and the Defendants’ Response

The suit alleges that Nelson-Bailey was one of the few women and people of color in Brandeis’ upper administration, and under Uretsky’s supervision, she was constantly second guessed, questioned and interrupted in staff meetings, while male employees were not. 

The defense, represented by Manousos, denied this treatment, also denying that a majority of Brandeis’ high-level employees are male, or white or non-black. Out of the 22 top paid and key salaried employees listed by Brandeis on their 2017 tax filings, 15 are male and seven are female. 

But the suit focuses around an investigation into Men’s Basketball Coach Brian Meehan, how Nelson-Bailey handled that investigation and what happened after the Brandeis community learned of Meehan’s racist and discriminatory treatment of players in April of 2018.

The investigation into Meehan began in May of 2017 when six students authored a formal complaint against the coach.

The complaint alleged that Meehan was engaging in nepotism, racial discrimination and emotionally abusive conduct. Then Director of Employee and Employer Relations and Title IX Coordinator Linda Shinomoto was assigned the case. 

While students had complained about Meehan since 2014, the investigation only began in May of 2017, according to a subsequent independent investigation into the athletics department. Shinomoto and Nelson-Bailey communicated with players in 2017, and Shinomoto compiled information about the coach, eventually providing their findings to Vice President for Student Affairs Sheryl Sousa.

The suit alleges that Shinomoto, Uretsky and General Counsel to the University Steven Locke questioned the need for a written report at the end of the investigation and that in Nelson-Bailey’s meetings with Shinomoto, Shinomoto would ignore Nelson-Bailey and miss deadlines—the defendants deny all of these allegations.

But an independent investigation into athletics claimed that Nelson-Bailey did not support Shinomoto.

“Nelson-Bailey had provided little if any support to her direct report, the HR investigator, in several key meetings. Nelson-Bailey also undercut the HR investigator’s findings with Sousa,” the report read.

Shinomoto disagreed on the suit’s characterization of her work when she spoke with The Hoot and said that she and Nelson-Bailey had a disagreement regarding the investigation but would not elaborate on what it was. 

Shinomoto concluded her report in September of 2017 and found that the six students complaints had merit—complaints which said that the coach had engaged in discrimination based on race and behaved unprofessionally. But because of the close relationship between Meehan and his direct supervisor, Athletic Director Lynne Dempsey, Shinomoto made Sousa the final decision maker and did not recommend in her report that Meehan be placed on leave or terminated—a point both the plaintiff and the defense agree on.

Sousa made the final decision to punish Meehan, giving him a final written warning, according to a subsequent independent investigation into Brandeis athletics.

Shinomoto left Brandeis to take a position at Wentworth Institute of Technology as Vice President for Human Resources and stated in an interview with The Hoot that she resigned from Brandeis. The suit alleges that she was terminated on Oct. 26, 2017, and the defense’s response denied that the use of the word “termination” was accurate.  

Shinomoto would not comment if her departure was linked to the HR investigation.

After Shinomoto left, Nelson-Bailey stepped in to communicate with the students who had complained. She informed the players that Meehan was disciplined, though she did not say what that punishment consisted of, according to the suit. 

But the HR investigation did not mark the end of complaints against Meehan.

In the spring of 2018, another player came forward with allegations of racial discrimination and after the publication of an article about the coach on Deadspin.com, Liebowitz announced that Meehan was fired on April 5, 2018 in a community-wide email. 

Brandeis hired two independent investigators to look into the handling of the HR investigation and held a campus-wide town hall, where students expressed their frustration, according to an earlier Hoot article.

The Brandeis community would learn more about Meehan in the independent investigation report, released in two parts on Sept. 4, 2018 and Nov. 29, 2018.

That same year in June, the suit alleges that Uretsky suggested hiring a white female assistant vice president to Nelson-Bailey who would be paid a salary of $250,000, a salary higher than Nelson-Bailey’s. The defense denied that the assistant would be paid more than Nelson-Bailey.

A summary report of the investigation was released to students in a Sept. 4, 2018 email. That same day, according to both the plaintiff and the defense’s cases, Nelson-Bailey was called into a meeting with Uretsky.

Uretsky told Nelson-Bailey she was being demoted, according to both the plaintiff and the defense, because of her involvement in the internal investigation of Meehan, and she was placed on two-week administrative leave.

Nelson-Bailey was not the only woman demoted. Sousa resigned, and Dempsey was placed on probation along with Nelson-Bailey, Liebowitz announced to Brandeis on Sept. 4.

The suit also states that only women were punished following the investigation and cites the lack of punishment of Uretsky, Locke and Senior Vice President for Students and Enrollment Andrew Flagel as evidence of discrimination. In their response, the defense denied that male employees such as Uretsky and Locke were not punished and cites the firing of Coach Meehan as an example. 

The independent investigation found that Flagel tried to delay or change disclosure of Shinomoto’s finding of student discimination. In a September 2018 interview, The Hoot asked Liebowitz if Flagel’s departure was at all related to the independent investigation.

Liebowitz replied, “No, it wasn’t related directly to the investigation.” He said the same of Shinomoto’s departure.

After her demotion, the suit alleges discimination continued.

The suit points to Nelson-Bailey’s replacement with a white male, Larry Lewellen, who allegedly received increased support and resources than she had in the same role, though the defense denies those allegations. 

The suit also claims that Lewellen did not provide her with a new job description or professional development plan and prevented her from working on the Human Resources Department Affirmative Action Plan (AAP) through unnecessary delays and ineffective communication, though the defense denies these allegations as well.

Nelson-Bailey appealed her demotion on Sept. 20, 2018 to Liebowitz and Lewellen—a fact agreed upon by both the plaintiff and the defense. But while Nelson-Bailey’s suit alleges she faced retaliatory conduct by Lewellen in the form of increased supervision, questioning of her need for support and lack of communication about office events and meetings, the defense denies that Lewellen acted in this way.

Liebowitz rejected Nelson-Bailey’s appeal on Oct. 17, 2018. 

The suit alleges that Nelson-Bailey inquired about the extent of her probation. Liebowitz informed her that he would be applying a policy meant for new university employees called the “Initial Review policy,” a procedure which Fogelmen called “misapplied.” The defense denied that Liebowtiz applied a policy intended for only new university employees. 

In a September 2018 interview, a month before Liebowitz informed Nelson-Bailey of the policy, he told The Hoot about plans to apply it to both Nelson-Bailey and Dempsey.

In November of 2018, Nelson-Bailey filed a complaint with MCAD, and the suit alleges that following that complaint, Nelson-Bailey received less time with her supervisors and a 45-day extension to her six-month probation.

The suit alleges that Lewellen accused Nelson-Bailey of not functioning effectively, collaboratively and cooperatively in her role and that he stated that her employment was contingent on her behavior towards him. The defense denies that they committed any retaliation against Nelson-Bailey.

On March 5, 2019, Nelson-Bailey went on medical leave as a result of the defendant’s conduct, alleges the suit, and returned on May 28, though the defense denies any responsibility for Nelson-Bailey’s medical leave. 

Legal Issues Involved

The lawsuit alleges that Nelson-Bailey was discriminated against by Brandeis University, violating Title VII; Massachussetts General Law 151B, which details “Unlawful Discrimination Because Of Race, Color, Religious Creed, National Orgin, Ancestry or Sex,” and the Age Discrimination in Employment Act of 1967 (ADEA), which “protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.” 

The Hoot spoke to Professor Michael C. Harper, Barreca Labor Relations Scholar at Boston University, and while he was unable to comment on this particular suit, he provided The Hoot with background information on Massachusetts law.

“The plaintiff has to prove that race or sex was a motivating factor in her being treated adversely. She does not have to prove some level of animus or bigotry,” said Harper. “Title VII prohibits any consideration of race or sex. Title VII also prohibits imposing less desirable working conditions when motivated by sex or race, even if there are no direct economic consequences, such as a loss of a job or a pay raise. However, the plaintiff has to show that the more hostile working environment was severe or pervasive in abuse.”

Harper said that the best evidence is to show that people outside of the plaintiff’s protected class were treated better. 

The suit’s evidence of racial discrimination included that “Ms. Nelson-Bailey was the only black high-level employee during most of her employment.”

“Ms. Nelson-Bailey was also the only woman of color on the leadership team and was the sole Human Resources employee who was singled out and faced demotion after involvement in this investigation,” the MCAD complaint files said.

When asked about other evidence of Ms. Nelson-Bailey’s racial discrimination, Fogelman told The Hoot that it was a difficult question to answer. 

“In [a case] involving race, gender, sexual orientation and so forth, it’s rare that you’re going to have a situation that’s blatant,” said Fogelman. 

“Often times what you have in discrimination cases is what we call circumstancial evidence. If there aren’t other apparent reasons why someone is being treated a certain way, and they happen to fall into another race or gender or religion or what-have-you, in certain situations, and we believe that this is one of them, we do think that [that person was] treated differently because of those reasons,” he continued.

The Brandeis Hoot will keep you updated on further developments.

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