Wednesday, August 4, 1999
Houston, Texas
Volume 64, Issue 162

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UH discrimination cases may lead to lawsuit

By Teresa Tingle
Daily Cougar Staff

UH may face a federal lawsuit if it refuses to settle complaints that General Counsel Dennis Duffy and other University administrators discriminated against a female employee.

The Equal Employment Opportunity Commission is making conciliation efforts with the University after determining Duffy subjected female employees to gender discrimination and a hostile work environment. President Arthur K. Smith has said UH will not settle out of court.

Susan Septimus, who worked under Duffy, filed an internal complaint against Duffy in spring 1998 alleging that the general counsel had violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1964.

Septimus' complaint was one of three filed by women in Duffy's office. All the women alleged that Duffy created a "hostile or abusive working environment" in addition to Septimus' charges of gender discrimination.

Septimus' first complaint alleged Duffy passed her up for the position of assistant general counsel in favor of Brian Nelson, a friend of Vice President for Administration and Finance Randy Harris.

The position was allegedly given to Nelson based on his "managerial" qualifications, which were not a listed requirement. Moreover, Nelson's salary was higher than that of the former assistant general counsel although he reportedly had no experience in higher education law.

The law office of Dillard, McElvaney and Kovach was contacted to conduct an independent investigation of the women's allegations. In a 20-page report to Smith dated April 16, 1998, lawyer Deborah Heaton McElvaney concluded that there was sufficient evidence that Duffy had created a "hostile, abusive" work environment through his discriminatory practices and that he discriminated against Septimus in hiring Nelson.

But Smith appointed a three-member panel of UH administrators to conduct its own investigation, which found all charges against Duffy to be unsupported. Duffy was ordered to undergo management training, leading opponents of the ad-hoc panel to allege administrative whitewashing.

Septimus next filed a complaint concerning her being passed over in favor of Nelson with the Houston office of the EEOC which, after an investigation, ruled in her favor in May 1999.

However, that was not the only EEOC investigation into Septimus' job situation. When Septimus approached Smith with the allegations in 1998, the president gave her two choices, said her lawyer, Andrew S. Golub. "(Smith) said she could either stay and suck it up or transfer positions and give up all rights to sue, which in itself is a violation of Title VII," he said.

He said Smith eventually dropped that stipulation and appointed Septimus director of contracts administration, a position created in 1998.

Golub alleged that all legal tasks have been removed from Septimus' position and she is not allowed to perform legal duties of any kind. "Smith took away legal tasks simply because Susan filled the position, which is another violation of Title VII," Golub said.

When Septimus' supervisor, Director of Purchasing Ron Miller, retired this spring, the University opened his position to be filled on a temporary basis while a search was made for a qualified applicant.

Septimus was a candidate for the interim position, which would have given her an increase in pay and authority. Golub said both Miller and Associate Vice President of Administration John Martin recommended Septimus for the position, but Martin was unable to confirm that.

Golub said it was announced that Septimus would take the temporary position, but the day before Miller retired, he said Harris "yanked" the position from Septimus.

Harris announced the position would be given to Ann Lamar, former director of Auxiliary Services and another candidate for the job.

Martin told The Daily Cougar there was never an announcement that Septimus would be placed in the position of director of purchasing. He said candidates for the job were considered and that Lamar was chosen in a routine fashion.

Golub alleged Lamar was not as qualified for the position as Septimus. "They are retaliating against (Septimus) just because she filed," he said.

Septimus again filed a complaint with the EEOC, which ruled in her favor, saying there was a connection between her having filed complaints against Duffy and her being turned down for interim director of purchasing.

According to the EEOC ruling, the next step after an EEOC determination has been handed down is for the EEOC to begin conciliation efforts "to resolve all matters where there is reason to believe that a violation has occurred."

If the respondent does not agree to settle with the complainant after a mandatory mediation period, "the director will inform the parties and advise them of the court enforcement alternative available."

But a June 14 memorandum Smith distributed to UH deans and top-level UH System administrators makes it clear that UH does not intend to settle.

The five-page memo was a departure from the accepted University policy of not discussing pending legal matters.

"It sometimes happens that one of the parties in a case attempts to have it tried in the court of public opinion rather than on the facts and merits in a proper court of law," Smith wrote.

He went on to suggest that Septimus and Golub "have worked zealously to have their side of the case aired publicly, with the intent of mobilizing pressure against the responding party."

Smith also affirmed his support for Duffy.

"I am certainly going to continue to support a manager who is doing a superb job and who, I am convinced, has been unjustly accused as well as defamed through a calculated media and whispering campaign," the president wrote.

The memo said no party at UH should have to bring legal action against the University to obtain "a fair hearing and a just outcome." However, Smith wrote that the University will not agree to settle on "an unfounded charge or claim" in order to avoid "adverse publicity."

But Golub said he feels Smith's memo presents the opposite message.

"Smith has drawn a line in the sand with an incredibly harsh commission," he said. "He's waging a full frontal assault on Septimus. He says for those who come forward with these cases will be handled in a respectful, private and fair manner, and yet he's writing all this to attack Septimus. What he's really saying to his employees is be very, very wary."

Smith also discounted the EEOC's determinations in Septimus' favor, alleging that the rulings are biased because Houston EEOC Director Joan Ehrlich is a friend of former UH Director of Affirmative Action Electra Yourke, one of the three women who originally filed complaints against Duffy.

Smith wrote that Yourke had been recommended for the interim director position by Ehrlich, who "also happens to be the author of the recently released EEOC determination in this case."

Yourke left UH for New York City, where she is an affirmative action and equal employment opportunity consultant for universities. She told the Houston Chronicle that she left the University because she did not want to be subject to retaliation from Duffy.

Ehrlich confirmed that she and Yourke are friends, but said she recused herself from the case because she had served on a women's studies task force at UH and wanted the ruling to remain objective.

"I did not write the finding. I had nothing to do with the case," Ehrlich said.

Smith also alleged that the EEOC did not interview Duffy or the three members of his ad-hoc committee in its investigation, but Ehrlich said an EEOC investigator did interview them.

Smith was not available for comment and Duffy did not answer calls from The Daily Cougar. Cindy Suggs of UH External Communications said Smith's memo is UH's official stance.

"The policy at UH is to let a case like this go through the proper legal process of litigation. We do not want to try the case in a public forum," Suggs said.

However, Smith's memo closed with the phrase, "feel free to share this memorandum with anyone you choose" -- and the document apparently was widely distributed, spawning two Houston Press articles in July.

Golub said he expects to have to file a federal lawsuit against UH after a Department of Justice review of the case, which will occur if EEOC attempts at conciliation fail. Congress does not allow the EEOC to enforce any ruling against a government employer unless it is for age discrimination alone.

If the Department of Justice issues Septimus a right-to-sue order, the case could move to court. Should that occur, Golub has indicated he has, and is prepared to use, more evidence against Duffy -- including memos sent to Smith from within UH detailing problems with the general counsel.

"Susan does not deserve this treatment. It's not right that she has to make the choice of doing what she loves to do, something she's good at, while compromising her dignity and respect," Golub said. "Smith is going after the wrong problem. He should be going after a demonstrated problem: Dennis Duffy."

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