HR employee sues Brandeis University for $2 million in racial, gender discrimination suit
Former Vice President of Human Resources Robin Nelson-Bailey is alleging racial and gender discrimination throughout her employment at the University.
A University employee is suing Brandeis University, University President Ron Liebowitz, Executive Vice President for Finance and Administration Stewart Uretsky and Interim Vice President for Human Resources Larry Lewellen. Robin Nelson-Bailey, formerly the vice president of Human Resources and Title IX coordinator, is seeking a minimum of $2 million for damages arising from alleged racial and gender discrimination throughout her employment at the University.
After the University’s independent investigation into the Brandeis Athletics Department following former men’s basketball coach Brian Meehan’s termination from the University for racial harassment and discrimination, Nelson-Bailey was demoted to vice president for special projects.
Nelson-Bailey’s lawyer, Matthew Fogelman, provided the Justice with the official complaint, which was filed on May 20 with the Commonwealth of Massachusetts Middlesex Superior Court. Fogelman first filed a discrimination complaint with the Massachusetts Commission Against Discrimination on November 16, 2018. Fogelman withdrew the complaint on April 4 and decided to file in civil court instead, and MCAD subsequently dismissed that first complaint on April 23, per records provided by MCAD to the Justice.
“I thought this case was better suited for Court,” Fogelman wrote in a June 19 email to the Justice, adding, “For this case, we would be seeking a jury trial (which MCAD does not provide).”
Legal basis surrounding racial discrimination
Nelson-Bailey alleges that the defendants overlooked and, in some cases, directly engaged in discrimination and retaliation against her within the University administration. The complaint claims that this treatment prevented her from being able to perform and enjoy her job, “leading Ms. Nelson-Bailey to feel worthless, isolated and powerless, in addition to causing strain in her personal relationships and rendering it difficult to conduct her daily activities.”
The lawsuit contains three counts of discrimination or harassment, each detailed in the court documents provided to the Justice. The first count is against the University for discriminating against and demoting Nelson-Bailey, a Black woman, based on her gender and race. The second is against Uretsky and Liebowitz for allegedly intimidating and threatening Nelson-Bailey and interfering with her right to not be discriminated against. This count also alleges that Uretsky and Liebowitz retaliated against Nelson-Bailey, as they were involved in the decision to demote and discipline her. The third count is against Uretsky, Liebowitz and Lewellen for their specific contributions to Nelson-Bailey’s demotion and their “supportive assistance to Brandeis’ intentional discriminatory conduct.”
Uretsky declined to comment on the court filing. Director of Media Relations Julie Jette responded with no comment on behalf of all defendants and University counsel Steven Locke to all Justice inquiries about the case.
Nelson-Bailey’s case, like many employment discrimination cases, is grounded in Chapter 151B, Section 4 of the Massachusetts General Laws, which is the state’s version of Title VII of the Civil Rights Act of 1964. Section 4 prohibits employment discrimination based on “race, color, religious creed, national origin, sex, gender identity, sexual orientation, genetic information, or ancestry.”
Subsection 4A states that no person can “coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter.” Fogelman invokes this subsection in the second count, alleging that Uretsky and Liebowitz “coerced, intimidated, threatened, and interfered with Ms. Nelson-Bailey’s exercise and enjoyment of her rights granted and protected by Massachusetts General Laws, chapter 151B.”
The suit also looks to Brandeis’ own HR policy for legal recourse. To handle cases of employee harassment, the University’s Office of Human Resources follows its Non-Discrimination and Harassment Policy. The policy sets forth guidelines to protect employees who experience discrimination based on lawfully protected categories such as race, sex and religion. It names actions employees facing discrimination or harassment can take, including how to report these incidents and options the employees have if the accused retaliates. The University updated its non-discrimination policy in December 2018.
The policy prohibits retaliation against those “engag[ing] in a protected activity” such as initiating harassment or discimination complaints or cooperating in such an investigation. Retaliation is defined as when another party who knows about the complaint or cooperation “takes an adverse action against the person … [that] was caused or motivated by the protected activity.” Fogelman alleged in a June 7 interview with the Justice that the defendants violated this University policy by retaliating against Nelson-Bailey, though he emphasized that their alleged violation of Massachusetts law was more important in the suit than alleged violation of University policy.
Nelson-Bailey was hired by the University in June 2016 as the vice president of HR, according to a May 24, 2016 Justice article. Uretsky served as her supervisor at the time, and according to the complaint, Nelson-Bailey was the only woman in the Finance and Administration department for most of her employment at the University.
The complaint also states that the “majority of Brandeis’ high-level employees are white or non-black.” The vice president of HR is one of the positions listed on the University leadership website, which currently totals 19 positions. Of those who hold those leadership roles, none are Black and only five are women. Throughout Nelson-Bailey’s employment, she was the sole Black employee in the upper ranks of University administration, according to the Internet Archive Wayback Machine. In July 2016, one month after being hired, she was one of 12 women out of the 23 members of leadership — 52.2 percent women. At the time of her demotion, Nelson-Bailey was one of 7 women out of 19 members of leadership — meaning the University’s leadership had fallen to only 36.8 percent women. Today, leadership is only 35.7 percent women.
Nelson-Bailey’s conflicts with Uretsky
The formal complaint says that under the supervision of Uretsky, Nelson-Bailey was prevented from “moving forward with necessary personnel actions in a timely manner, although other male staff members were allowed to do so.” Nelson-Bailey addressed these issues by bringing them to the attention of Uretsky in September 2016. The lawsuit does not elaborate on what these necessary personnel actions entailed.
In addition to these personal grievances, Nelson-Bailey approached Uretsky about University compliance in matters such as maintaining and investigating Title VI, VII and IX complaints in the HR department. The suit alleges that Uretsky second-guessed Nelson-Bailey by asking employees in positions below her to substantiate her ideas and decisions, something he did not do when her white, male counterparts brought forward concerns. It also claims that Uretsky interrupted and talked over Nelson-Bailey during staff meetings, but did not do so for white, male staff.
While this treatment alleged by the court documents occurred before Nelson-Bailey’s involvement in the Meehan case, the results of the independent investigation and her subsequent demotion “highlighted and amplified” pre-existing problems, Fogelman said in a May 29 interview with the Justice.
On April 5, 2018, Deadspin released an article describing Coach Meehan’s racist behavior, one notable example being Meehan telling a Black student, “I’ll ship you back to Africa.”
Almost a year earlier, in May 2017, three basketball players initiated an HR investigation in an effort to bring Meehan’s pattern of racially biased harassment and discrimination to light at the University. According to a Sept. 18, 2018 Justice article, a separate external independent investigation into the Athletics Department and the HR investigation initially conducted into the May 2017 complaints revealed that this initial HR investigation had many flaws.
The Justice reached out to the head investigator, Walter B. Prince, regarding Nelson-Bailey’s involvement in the independent investigation several times. He was not available for comment.
According to Nelson-Bailey’s complaint, the May 2017 Meehan HR investigation was assigned to former Title IX Coordinator and Director of Employee and Labor Relations Linda Shinomoto, who held the position before Nelson-Bailey. Her role was to make sure that the investigation was properly conducted. Nelson-Bailey was adamant that a written report be produced at the conclusion of the investigation, but the court document claims that she faced resistance to this idea from the defendants. This aligns with the findings of the independent investigation, as the Justice reported in September 2018.
During the investigation into Meehan’s actions, Nelson-Bailey assisted Shinomoto in meeting with the students and hearing their complaints, reviewing Brandeis’ non-discrimination policies, anti-retaliation policies and rights to appeals. After meeting with the students, Shinomoto and Nelson-Bailey gave them their business cards and a hard copy of the non-discrimination policy, in addition to sending it over email.
Although Nelson-Bailey and Shinomoto were supposed to work together in the HR investigation, the complaint alleges that Shinomoto resisted suggestions from Nelson-Bailey and missed deadlines without communicating properly. The HR investigation concluded around Sept. 18, 2017. Shinomoto “found merit to the students’ claims of discrimination based on race and unprofessional behavior/abusive conduct by Meehan,” the court documents say. Shinomoto did not recommend putting Meehan on leave or terminating his employment.
Shinomoto did not respond to requests for comment as of press time.
According to the document, Nelson-Bailey communicated the fact that Meehan was disciplined to the students who put forward the complaints, but could not provide them with further details for confidentiality purposes. She did tell the students the types of discipline the coach could have received.
On Sept. 4, 2018, Uretsky arranged a meeting with Nelson-Bailey and Liebowitz’s Chief of Staff, Bill O’Reilly, in which Uretsky told her that she was being demoted to her current role as vice president of special projects in HR, with a reduction in salary “based on her involvement in the internal investigation of coach Meehan,” the court documents say.
When Nelson-Bailey asked for more details as to why she was being disciplined, the complaint continues, Uretsky instructed her to wait for a forthcoming public announcement from Liebowitz and only told her that her demotion was the result of the independent investigation. He did not provide any further information or any written documentation of her demotion. During the meeting, Uretsky also gave Nelson-Bailey the option to appeal her demotion or resign.
Later that day, President Liebowitz sent an email entitled "Important Update on Independent Investigation" to the Brandeis community with a link to a summary of Prince Lobel’s report and an overview of personnel changes at the University. In this email, Liebowitz informed the Brandeis community of Nelson-Bailey’s demotion. “Vice president of human resources Robin Nelson-Bailey has been demoted, relieved of her leadership and supervisory responsibilities, with a commensurate reduction in salary, and placed on probation,” he wrote.
In an April 10, 2018 interview with the Justice and The Brandeis Hoot, Liebowitz clarified that Nelson-Bailey’s new position could include reviewing policies and procedures in light of the independent investigation and transferring some of HR’s work to the Office of Diversity, Equity and Inclusion. This would include a six-month probationary period, after which she would be re-evaluated for continuing employment. However, the court document clarifies that she was initially placed on administrative leave before receiving training and professional development from the University for her new role.
The complaint document points out that all the employees who were disciplined following the investigation were women. It also mentions that Nelson-Bailey was the only woman of color on the leadership team, as well as the only HR employee to be demoted and singled out for disciplinary measures.
After her demotion, Lewellen replaced Nelson-Bailey as interim vice president of HR, and the court document claims that “Mr. Lewellen has received increased resources and support than Ms. Nelson-Bailey did in the same role.”
The document also outlines the challenges Nelson-Bailey faced in fulfilling her new job of assistant vice president for special projects. She asked Uretsky and Lewellen for training and clarification of her new role, and she never received a finalized job description, despite being promised one, according to the complaint. Nelson-Bailey pointed out to Lewellen that all Brandeis employees possess a job description through the PeopleSoft system according to protocol, but Lewellen allegedly told her, “I do not necessarily follow the rules.” Nelson-Bailey claims that this prevented her from carrying out her new role.
Appeals process for her demotion
On Sept. 20, 2018, Nelson-Bailey submitted a Level Four appeal “related to her wrongful demotion,” according to the court documents. A Level Four appeal is “a review by the President, Senior Vice President for Administration, Provost, or Senior Vice President for Students and Enrollment, as appropriate.” In her appeal submission, she included a letter listing reasons why she disagreed with the initial decision to demote her, specifically appealing to Liebowitz and Lewellen.
The complaint alleges that since the submission of the appeal, Nelson-Bailey has experienced further retaliation. Lewellen monitored her actions, and Nelson-Bailey had to communicate with her own staff through Lewellen. If she needed any resources, Lewellen would be the one to provide them for her, further hindering her ability to do her job.
A month later, on Oct. 17, 2018, Liebowitz denied Nelson-Bailey’s appeal, saying, “[after] examining your appeal in its entirety, I have decided to affirm my original decision and the related conditions. This is a denial of your appeal and a final decision for Brandeis.” No explicit reason for the demotion was put forward in the appeal denial letter, which was provided by MCAD to the Justice. In the closing part of the letter, Liebowitz added that he was “glad to provide the opportunity for [Nelson-Bailey] to remain at Brandeis” and wished her success in her new position.
Two days later, Lewellen provided the promised finalized job description and training to Nelson-Bailey after she asked about it again that morning, but she found that the description was not completed through PeopleSoft as Lewellen had allegedly said. Nelson-Bailey also received a reappointment letter from Liebowitz that day, which was the first time she was provided written documentation of her demotion, the court documents claim.
After the appeal rejection
The complaint document alleges that Nelson-Bailey experienced a reduction in the amount of one-on-one time she had with her supervisors, Lewellen and Uretsky, starting after she filed the discrimination complaint with MCAD. Months later, on March 1, Nelson-Bailey was informed that her probationary period was extended by 45 days on the grounds that she was not “demonstrating the capability to function effectively, collaboratively, and cooperatively as an Assistant Vice President.” The court document says that these accusations are untrue and misleading.
Nelson-Bailey also alleged that she was excluded from “several important lists within the workplace, such as Mr. Lewellen’s out-of-office messages and invitations to attend office events and meetings,” while subordinate and temporary staffers were included.
On March 5, Nelson-Bailey went on medical leave under the Family and Medical Leave Act, due to health problems that the complaint attributes to the defendants’ discriminatory behavior against her. Nelson-Bailey returned to work on May 28 as scheduled, Fogelman said in the June 7 interview. She remains employed at the University, according to a May 20 article from the Boston Globe.
Despite the discriminatory treatment that allegedly occurred, Nelson-Bailey never considered leaving the University, Fogelman said in the June 7 interview. “She’s a very tough, very principled, ethical person … The answer to [discriminatory treatment] was not to leave. The answer was to try to put a stop to this conduct and to try to vindicate her rights which we believe have been trampled on,” he said, adding, “She wants her name cleared.”
Nelson-Bailey echoed that sentiment in a May 28 email to the Justice. “I am a person with integrity and I expect the same from Brandeis who claims to seek, ‘truth, even unto its innermost parts,’” she wrote.
Civil case process
During the May 29 interview, Fogelman explained the process of a civil case, or the proceedings that Nelson-Bailey will follow with her lawsuit. After a plaintiff files a civil complaint — the document that was provided to the Justice — the defendant must file their response to the plaintiff’s allegations. The parties will then go through the process of discovery, which is the exchange of documents, and will conduct depositions, where witnesses, the plaintiff and the defendants must answer preliminary questions under oath. If the parties do not reach a resolution, the case will go to trial.
The defense has filed a position statement with Massachusetts Commission Against Discrimination but has not yet filed any documents in court, Fogelman said in the June 7 interview. The Justice reached out to MCAD and requested access to that document, but was told that the document is not public record.
Though Fogelman is “preparing the case as if we’re going to trial,” he said, his ideal outcome of the case could change as the parties progress through legal negotiations. As of the May 29 interview, his intention was to “go to trial to vindicate [Nelson-Bailey’s] rights.” If the case goes to trial, the trial will not take place for at least two years, Fogelman said in the same interview.
Comparison with other racial discrimination cases
One case similar in nature to this one, outlined in a May 6 Oregonian article, was at Northwest Christian University in Eugene, Oregon when Dr. Johnny Lake, a former professor at NCU, sued the university in April 2018 on four counts. Dr. Lake won based on one of the claims — racial discrimination and creating a hostile work environment. The jury did not find the university liable on his other claims, which included retaliation and disparate treatment, both of which Nelson-Bailey also alleges in the court documents.
Like Nelson-Bailey, Lake sought damages for lost wages and emotional distress. He also ran into trouble resolving issues with his supervisors. When he complained about racist remarks from students, his supervisors “retaliated by giving him negative performance reviews and imposing higher expectations on him than other staff members,” according to the Oregonian article.
Lake was the only Black professor at NCU and was treated differently than his white colleagues during his tenure, according to The Oregonian. Three years after he was hired as an assistant professor, Lake learned that he was passed over for a promotion to associate professor when two of his white colleagues, who had “equal or lesser academic credentials,” were promoted. When he brought up the matter with an NCU dean, the dean “reacted by shouting and telling Lake that it was none of his business,” per the article.
Nelson-Bailey is alleging similar behavior took place, including angry reactions by Lewellen and Uretsky during conversations she had with them.
Where do they go from here?
Employment discrimination cases are not easily won in court. An Oct. 8, 2017 Huffington Post article says that while 19 percent of employment discrimination cases are dismissed, only two percent of the cases that proceed to court win after trial. 58 percent end in settlements and 18 percent lose on summary judgment, a ruling made without a trial based on evidence submitted to the court.
Despite the odds, Fogelman expressed confidence that the case was winnable during the June 7 interview. “I feel very confident about the case,” he said. “I feel very confident about Ms. Nelson-Bailey. She is a fantastic individual and obviously they’re going to come up with some defenses … but I feel very strongly about it.”
— Natalia Wiater contributed reporting.
— This article has been updated after the Justice received records from MCAD. It now includes a redacted version of the official complaint, information about how the case was filed and the contents of Liebowitz’s letter denying Nelson-Bailey’s appeal.