A former Emporia State University professor has won his religious discrimination lawsuit against the university.
A Lyon County jury earlier this week awarded Dr. Dusti Howell $5,181,344.55 in compensatory and punitive damages, finding the university violated Howell’s rights under the Kansas Preservation of Religious Freedom act and the Kansas Act Against Discrimination as well as Federal Title VII protections.
The jury said Emporia State and administrators Joan Brewer and Jim Persinger now owe Howell some $2.1 million in compensatory damages — pay he would have been entitled to had he not been forced out — and $3 million in punitive damages. That figure will likely go higher when the judge awards attorney’s fees and other punitive damages.
Lyon County radio station KOVE reports an appeal is likely.
The background
As The Sentinel previously reported, the jury verdict stems from a pair of lawsuits filed in 2022 and later consolidated, alleging that the university discriminated against Howell.
Dr. Dusti Howell, his wife Deanne, and his children are all members of a non-denominational church that also celebrates what in other contexts would be considered Jewish holidays.
Howell, who had been a professor in Instructional Design and Technology at Emporia State University for over two decades — and tenured for 12 years — returned from celebrating the “Feast of Tabernacles” in 2020 to a “conference” with the now-former Dean of the Teacher’s College, Joan Brewer, and now-retired interim IDT department chair Jim Persinger.
“I came back from a one-week church conference, which I’ve gone to since I was six years old and for 23 years at Emporia State — Feast of Tabernacles,” Dusti Howell said. “They said ‘you can’t do that anymore, not without getting an 8-week, preapproved notice from HR, and the dean and your chair.”
“I asked if I could go to a tech conference,” he said. “‘Oh, yeah, you don’t even need to tell us, just go.’ But if you’re gone for a church conference, gone for one day for church. ‘Yeah, you need eight weeks pre-approval. We’ll let you know whether you can go or not.’”
The reason for this? According to Howell, he’d missed two classes — a Tuesday and a Thursday — during which students were to learn to use green-screen technology. However, Howell had already planned to have his graduate teaching assistant cover those days — something common at any university.
“She was probably the best graduate teaching assistant I’ve had there in 23 years,” Howell said, noting that the TA was a former head of department at a university in India and was attending ESU while her daughter was in the nursing program.
“She was fantastic as a graduate teaching assistant, but I was chastised for allowing a graduate teaching assistant to teach in my class,” Howell said. “Wow, really, you can’t use them to teach at all?”
This was the beginning of what the lawsuit alleges is a years-long effort to force Howell out — including multiple false claims against him.
“On November 4, 2020, Dean Brewer sent Dusti a letter of discipline claiming that Dusti had not reported for teaching for ‘weeks’ (when in fact Dusti’s religious absence was a week),” the lawsuit reads. “Brewer claimed Dusti had been absent a week (for the day of Atonement) when in fact it was only one day. Brewer claimed Dusti had sought two weeks of absence (for the Feast of Tabernacles) when in fact it was only one week. Brewer claimed that Dusti had not responded to school emails for upwards of a week (when in fact it was only two days). Brewer contended that meant Dusti was on a leave of absence when he was not. Brewer contended that Dusti had not followed the proper ‘process’ but never identified where in any published policy of Emporia State making such requirements.”
Indeed, Emporia State not only did not have a written policy accommodating religious observances but — according to filings — had a history of discriminating against students who observe the Jewish holidays.
“In 2016, Emporia State University (ESU) considered developing a written policy regarding absences for religious observances (FSB 16004). Its purpose was described as being ‘designed to create a policy on absences for religious observances.’ But the ESU faculty Senate failed to enact such a policy,” the filing reads, and notes that ESU “developed a custom in refusing to accommodate students’ request for religious accommodations.”
Howell’s attorney, Linus Baker, asked for a stay on the lawsuit while the Groff v. Dejoy religious discrimination lawsuit was pending before the United States Supreme Court.
In 2023, the Supreme Court ruled unanimously that employers had the duty to prove a religious accommodation would prove an “undue hardship” on the business before it could be denied, rather than forcing the employee to prove it would not.
Baker said in a phone interview at the time that this was clearly not the case here, as Emporia State had provided Howell the accommodation for years, until Brewer became dean.
Baker said Howell was refused accommodation, disciplined on a series of trumped-up issues or technicalities, not included on email chains, and then disciplined for not knowing about meetings or departmental issues and threatened with termination.
“It was a constructive discharge,” Baker said, referring to a process in which an employer creates a work environment so hostile an employee is forced to resign. “I mean, they just made his life miserable because of his religious practice, which, for the prior administration, had never been an issue.”
Baker also noted that Howell’s need to work around his religious observances was hardly new.
“That’s something he has practiced habitually since he was there,” Baker said. “When he hired on, it was understood, right? So, I mean, it’s not like he had some epiphany during his employment where he changed the rules of the game. This has been Dusti from day one. This has been who he is and still is.”
Eventually, Howell resigned after being demoted to teach only freshman classes — and after having taught only graduate students for years — believing he was about to be terminated.
