Brake, a former employee in the university’s Office of Equity & Compliance, sued after his June 2024 termination. He alleged discrimination and retaliation under the Virginia Human Rights Act, citing his military service and complaints regarding Title IX violations.
Judge Norman K. Moon denied the motion to reconsider Brake’s VHRA discrimination claim (Count V). The court held that Brake established a prima facie case of discrimination based on circumstantial evidence, including text messages from a co-worker and comments by his supervisor regarding military service.
The court rejected Liberty’s argument that Brake failed to identify similarly situated non-veteran comparators. Under Fourth Circuit precedent, veteran plaintiffs are not required to point to specific comparators to survive summary judgment if other circumstances raise a reasonable inference of unlawful discrimination.
The court also found sufficient evidence to allow Brake’s discrimination claim to go to a jury, noting that his positive 2024 performance review was inconsistent with the university’s asserted justification of poor work performance.
However, Judge Moon granted the motion to reconsider Brake’s VHRA retaliation claim (Count VI) in part. The court narrowed the scope of protected activity, excluding Brake’s reports to the Department of Education and his complaints about a supervisor’s prejudgment of Title IX cases.
The court held that the reports to federal officials and internal complaints about procedural violations fell outside the scope of protected activity under the VHRA. Additionally, there was no evidence that the decisionmaker knew of those specific reports.
Brake may proceed to trial on Count VI based solely on his assistance with a co-worker’s sexual harassment complaint and his participation in the resulting investigation. The court found that temporal proximity between these activities and Brake’s termination could support a finding of causation.