UH discrimination case
heads for trial
By Ken Fountain
Senior Staff Writer
A four-year-long legal battle between the
University and a former lawyer in its Office of General Counsel will soon
enter its most combative stage yet when the case is tried in federal court.
The lawyer, Susan Septimus, is one of three
women who in 1998 filed internal charges that UH General Counsel Dennis
Duffy created a hostile and abusive work environment for
women under his supervision.
Septimus further claims she was denied
a promotion and "constructively discharged" for making the allegations.
In a pretrial order issued Wednesday, U.S.
District Judge Vanessa Gilmore of the Southern District of Texas, Houston
Division, ruled in the University's favor in its requests for
summary judgment that Septimus' claims
that Duffy engaged in gender discrimination and created a hostile work
environment for women are not supported by the evidence.
However, Gilmore found that Septimus can
proceed to trial in her claims that she was not promoted and "constructively
discharged" (that is, forced to resign because her work
conditions were made untenable) in retaliation
for filing her charges against Duffy.
The women's allegations had been the subject
of two UH investigations and two investigations by separate offices of
the federal Equal Employment Opportunity Commission
before Septimus filed suit in September
Septimus, former OGC Business Administrator
Glena Sue Yerby and former OCG legal secretary Carolyn Williams (all white
women older than 40) made separate complaints of
gender, age and race discrimination by
Duffy (who is black) to the University's Office of Affirmative Action.
Because that office is supervised by the
Office of General Counsel, the University sought an outside investigator
to look into the women's complaints.
Then-Interim Director of the Office of
Affirmative Action and Equal Employment Opportunity Electra Yourke hired
Houston attorney Deborah McElvaney in March 1998 to conduct
In April 1998, McElvaney submitted to UH
President Arthur K. Smith a 20-page report of her investigation, finding
that there was insufficient evidence that Duffy discriminated
against Williams and Yerby.
She did find sufficient evidence that he
discriminated against Septimus, based on her gender, when he hired Brian
Nelson for the position of associate general counsel, but
insufficient evidence that Duffy retaliated
against her for filing a grievance.
McElvaney also found that there was sufficient
evidence that Duffy's "pervasive gender discrimination has created a hostile,
abusive work environment."
Smith apparently questioned McElvaney's
findings. In a confidential June 14, 1999, memo (in response to a Houston
Chronicle article about the situation), he wrote, "I sought
assistance in evaluating (McElvaney's
report) from an ad hoc committee of three knowledgeable and experienced
officers of the University."
The three committee members were Vice President
for Student Affairs Elwyn Lee, Associate Vice President for Human Resources
Robert Herrington, and then-Vice President for
Institutional Advancement Sybil Todd.
After reading McElvaney's reports and interviewing
the three complainants and Duffy, the ad hoc committee agreed with McElvaney
that there was insufficient evidence to support
the claims of discrimination by Williams
and Yerby. As to Septimus' claims, "the panel, however, concludes that
(McElvaney's) investigation was not thorough on this point."
Specifically, it cited the fact that Septimus
did not apply for the litigation attorney position for which Nelson was
hired, but sought a contracts administration position which had
been vacated by Joe Williams.
Septimus claims that, in fact, Duffy hired
Nelson to take Williams' job. Nelson does currently serve in that position.
Septimus claims Smith forced her to accept
a position in the contracts administration department, answering to Nelson,
with the stipulation that she not be allowed to practice law
for the University.
Septimus and Yerby (who now serves as business
administrator in the Department of Facilities Planning and Construction)
both filed grievances with the Houston EEOC office,
which in mid-1999 found that both women's
claims of discrimination had merit.
UH administrators again found reason to
disagree. Then-director of UH's AA/EEO office Ileana Treviño, who
succeeded Yourke (who resigned in April 1998 citing her own difficult
relationship with Duffy), reportedly found
old message slips that indicated Yourke had had social contacts with Harriet
Joan Erlich, director of the Houston EEOC office during that
office's investigation of the claims.
After Treviño called the EEOC headquarters
in Washington, the Houston office's findings were rescinded and the case
was transferred to the Dallas EEOC office. In February
2000, that office again found the women's
claims had merit.
The University maintains that the Dallas
office did not conduct its own on-site investigation, but merely relied
on the files of the Houston investigation.