University responds to Nelson-Bailey lawsuit
The University denied Robin Nelson-Bailey’s allegations of racial and gender discrimination.
Counsel for the University and defendants University President Ron Liebowitz, Executive Vice President for Finance and Administration Stew Uretsky and Interim Vice President for Human Resources Larry Lewellen denied the majority of the allegations from a discrimination lawsuit filed by Robin Nelson-Bailey, the University’s assistant vice president for special projects.
Nelson-Bailey is suing the University, Liebowitz, Uretsky and Lewellen for recurring racial and gender discrimination and retaliation throughout her tenure as vice president of Human Resources. The defendants are represented by Gregory Manousos of Morgan, Brown & Joy LLP. Matthew Fogelman of Fogelman & Fogelman LLC is counsel to Nelson-Bailey.
The discrimination allegedly occurred in large part during Nelson-Bailey’s investigation of former men’s basketball coach Brian Meehan, who was fired in April 2018 following allegations of racism and nepotism.
The defense’s denial was issued in response to the lawsuit’s charges of discrimination under Massachusetts General Law Chapter 151B, Section 4 (4A) and (5). This prohibits workplace coercion and discrimination against employees who file complaints or oppose practices prohibited under Chapter 151B.
The defense denied Nelson-Bailey’s eligibility for punitive damages and relief, calling her claims “speculative in nature.” Nelson-Bailey is seeking a minimum of $2 million in damages for emotional distress and lost wages and benefits.
Nelson-Bailey alleged that she was hindered in her investigation of Meehan by the defendants and by Linda Shinomoto, the former director of employee and labor relations and Title IX coordinator, a claim the defense repeatedly denied. The lawsuit is based on the claim that the discriminatory conduct of the defendants during and after the investigation led to Nelson-Bailey’s demotion and distress.
Nelson-Bailey was demoted from vice president of Human Resources to her current role after an independent investigation into the University’s handling of the Meehan allegations. During a Sept. 4, 2018 meeting after the conclusion of the independent investigation, Nelson-Bailey learned she would be demoted because of her role in the Meehan scandal, and alleges that she was not given anything in writing or other details about the demotion aside from President Liebowitz’s announcement later that day. She also alleges that she was only given the option to appeal the decision or resign, while the defense said she could have appealed the decision, accepted the job or resigned.
The complaint alleges Nelson-Bailey was the only Black woman in a high-level administrative position and the only employee punished for her role in the Meehan investigation, a claim denied by the defense. However, while the defense denied that the majority of high-level administrators are male, it said nothing about another of the complaint’s allegations — that Nelson-Bailey was the only woman employed in a “high-level role” throughout her tenure in the Office of the Executive Vice President of Finance and Administration.
For the entirety of her time at the University, Nelson-Bailey was the only woman and person of color employed in a “high-level role” within the Office of the Executive Vice President of Finance Administration, according to the Internet Archive Wayback Machine. Five out of the six high-level employees in the Office of the Executive Vice President of Finance and Administration during her tenure were white men, or 83.3 percent. This trend has prevailed and worsened — currently all six high-level employees are white, with five out of six still men.
The defense also denied the complaint’s assertion that no male administrators were reprimanded in the aftermath of the independent investigation. The complaint specifically cites Andrew Flagel, the former senior vice president for students and enrollment. Flagel left the University to pursue a research fellowship in October 2017, six months before the Meehan reports surfaced.The defense did not clarify how Flagel’s exit constituted a reprimand connected to the Meehan situation, or if his exit was related to the investigation.
With these facts taken together, Nelson-Bailey alleges in the suit, the University committed discrimination by demoting her.
In its answer to these claims, the defense admitted that Nelson-Bailey was the only human resources employee demoted in the fallout of the independent investigation, but did not find that the action constituted discrimination.
Nelson-Bailey is also ineligible for relief, the defense said, because the damages she suffered were “caused by her own acts, omissions and course of conduct, or by a person or persons for whose conduct the Defendants are not legally responsible.” The identities of the referred persons are unclear.
Throughout the investigative process, the defendants claim to have made “good faith efforts to enforce an anti-discrimination/anti-harassment policy,” and did not act “intentionally, maliciously, willfully or neglectfully” toward Nelson-Bailey.
Under Chapter 151B, punitive damages can be awarded in employment discrimination cases even if the employer did not act with the knowledge or intention to violate anti-discrimination law, per the Massachusetts Supreme Judicial Court decision in Haddad vs. Walmart Stores, Inc.
Moreover, the defense and the complaint shared a common thread — an admission of Nelson-Bailey’s often-fraught relationship with Lewellen, who became her supervisor and successor after her demotion. During one particularly contentious meeting, Nelson-Bailey alleges that Lewellen “uttered, ‘Oh, Jesus Christ,’ at or toward her” when she asked him about training for her new position, an exchange Lewellen admitted took place. However, he denied other actions Nelson-Bailey alleged in the suit, such as withholding a proper job description from Nelson-Bailey and questioning her ability to handle her workload.
Another argument presented by the defense rejected Nelson-Bailey’s suit under the after-acquired evidence doctrine. This doctrine is a defense used in wrongful termination lawsuits wherein the employer discovers incriminating facts about the employee that would have resulted in termination, even discounting the allegations of discrimination. The answer does not specify any evidence that could be used under the doctrine, but may refer to Nelson-Bailey’s alleged handling of the Meehan investigation.
The Justice reached out to Manousos for comment, but did not receive a response.
The prosecution does not have a response to the defense’s answer, Fogelman told the Justice in an Aug. 29 email.
—Editor's Note: A previous version of this article was based on the incorrect complaint. The Justice originally used the Massachusetts Commission Against Discrimination complaint, and corrected it to the civil court complaint.