Jul 30, 2023

Former Emporia State professor’s religious discrimination claims benefit from high court ruling

Posted Jul 30, 2023 8:57 PM
Dusti Howell, former Emporia State professor, explains the events leading up to his 2021 resignation and lawsuits against the university. (Screen capture by Katelynn Donnelly for Kansas Reflector)
Dusti Howell, former Emporia State professor, explains the events leading up to his 2021 resignation and lawsuits against the university. (Screen capture by Katelynn Donnelly for Kansas Reflector)

Kansas Reflector

EMPORIA — Two lawsuits filed by a former Emporia State University professor against the university and two faculty members have resumed after a recent U.S. Supreme Court ruling set a new precedent for unlawful discrimination cases.

Dusti Howell, the former tenured professor, filed the civil lawsuits in 2021 and 2022 in Lyon County District Court against the university; Joan Brewer, former dean of the Teachers College; and Jim Persinger, chairman of the Psychology and IT Departments. Howell alleges Brewer and Persinger pushed him out of his position as a precursor to the firings of 33 ESU faculty members last year.

Before his resignation in 2021, Howell worked in the IT department for nearly 24 years. He claims he never received backlash for the time he took off to observe both Christian and Jewish holidays until Brewer became dean of the Teachers College.

Howell’s case “seems to be emblematic of a larger sense that … if you’re a faculty member, you are a disposable commodity,” said  Chapman Rackaway, a former professor at Flint Hills Technical College in Emporia and current professor and chairman in the Department of Political Science at Radford University. “And I think that’s very dangerous.”

Both Howell and Gerald Groff, the plaintiff in Groff v. Dejoy and a former U.S. Postal Service carrier in Lancaster County, Pennsylvania, claimed their employers created a hostile work environment after repeated absences on what the plaintiffs considered to be holy days of worship.

Howell identifies as a Christian but observes most traditional Christian and Jewish holy days.

“Without Groff, (Howell’s) case could have become Groff,” Rackaway said. “… Howell would have probably taken it all the way to the Supreme Court, and then maybe they would have made the decision based on (Howell’s) case, rather than on Groff’s.”

The shift in unlawful discrimination cases after Groff v. Dejoy is a huge win for Howell, said Linus Baker, his attorney.

“I filed a motion to stay, anticipating the law was going to change, and it did,” Baker said. “It certainly helps Professor Howell. … The analysis certainly puts more on the employer to justify their own actions.”

Baker also represented Molly Ellis in Ellis v Flint Hills Technical College, another unlawful discrimination case.

Before Groff was decided, the burden of proof in discrimination cases such as Howell’s rested on the employee. Now the responsibility lies with the university to prove it encountered “undue hardship,” or was faced with unreasonably burdensome challenges when accommodating his absences.

According to the petition, Brewer and Persinger imposed an unwritten regulation requiring Howell to request time off for religious events up to eight weeks in advance, despite ESU having no written policy regarding religious accommodations. Howell also alleged that students were encouraged by Brewer and Persinger to file complaints against him for his time off.

Howell said the last straw was his demotion to teaching undergraduate students. 

“It was like telling your all-star shortstop, ‘You’re gonna play left handed this year,’ ” Howell said. “We had a really good program. … They were forcing me to bat left-handed and field left handed.”

Brewer and Persinger, who are defended by assistant attorneys general Stanley Parker and Carrie Barney, deny all allegations.

The university and Parker declined to comment.

Judge James Fleetwood will oversee the case because all four judges of the Lyon County District Court recused themselves. Baker credits their recusal to an anonymous letter written to the judges. The letter, along with documents including student evaluations and discrimination complaints made by LGBTQ community members, are confidential under a protective order filed by the defense.

Baker predicts a jury trial next year, but there is no set hearing date.