The Volokh Conspiracy
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University lecturer's suit over firing based on (allegedly) consensual kissing of student-to-be can go forward
From two Nov. 30 opinions in Wilkerson v. University of North Texas (E.D. Tex.); first, the facts—note that the professor alleges that he didn't know until after the incident that CB had been admitted as a student, though presumably in light of the March 1 party, the professor might have had reason to suspect this:
This case arises from the non-renewal of an employment contract for a non-tenured professor. Plaintiff, Dale Wilkerson, was originally hired by the University of North Texas … in 2003 as a Lecturer in the Department of Religion and Philosophy … in the College of Arts and Sciences. In 2008, Plaintiff was reappointed and promoted to Principal Lecturer. Plaintiff held that position until his termination in June 2014. Principal Lecturer is the highest level attainable at UNT for any teacher who is not tenured or on a tenure track appointment. The only known causes for discharge of teachers with long years of service were because of elimination or reduction of a particular program, a general reduction in force, or the commission of a serious violation of UNT's policies and procedures.
Plaintiff's complaint centers around an allegedly wrongful discharge by UNT that was based at least in part on a relationship that UNT deemed to be inappropriate.
On March 1, Plaintiff met a 26-year-old[ female], CB, at a graduate student recruitment weekend at the house of the Director of Graduate Studies ("DGS") Dr. Gene Hargrove …. CB had applied to UNT in the Fall 2011 semester, and was admitted for the Fall 2012 semester, but deferred her enrollment until the Fall 2013 semester.
On May 31, 2013, Plaintiff was approached at a local bar by CB who was in town for job training. On June 2, 2013, CB went to Plaintiff's house. According to CB's complaint with the Office of Equal Opportunity ("OEO"), Plaintiff held CB down, kissed her, and asked her to undress while at Plaintiff's house. Plaintiff kissed CB again when he dropped her off at her house. Plaintiff admits to kissing CB, but denies holding her down, asking her to undress, or that either kiss was not consensual. CB did not recall who initiated either kiss but claimed that they were not consensual.
On June 30, 2013, CB invited herself to attend a concert in Memphis, Tennessee, that Plaintiff was attending with a platonic female friend over the Fourth of July holiday. CB, Plaintiff, and the female friend agreed to share a hotel room to save expenses. No sort of romantic activity occurred. It is not until this time that Plaintiff claims to have learned of CB's enrollment at UNT. Until this point in time, CB was not taking and had not taken any courses by Plaintiff. Plaintiff was appointed to DGS in September 2013 by Dr. Patricia Glazebrook …, the Department Chair of Philosophy and Religion Studies.
On February 7, 2014, CB filed a complaint alleging sexual harassment by Plaintiff during the June 2, 2013 encounter. On February 24, 2014, the OEO issued a formal complaint.
On March 26, 2014, Glazebrook conducted Plaintiff's evaluation for 2011-2013. Among other statements, she noted that Plaintiff ranked second out of thirteen faculty members for teaching. In early April 2014, Plaintiff asked Glazebrook why he had not received a letter renewing his teaching appointment for the 2014-2015 academic year. Glazebrook told Plaintiff that she was withholding the letter pending the outcome of a complaint to the OEO.
In a report dated May 12, 2014, the OEO found (1) at the time of the incident, Plaintiff did not have authority over CB and therefore could not be in violation of the consensual relationship policy; and (2) there was insufficient evidence to establish a violation of UNT's sexual harassment policy. CB did not appeal the OEO's finding.
On July 3, 2014, Plaintiff received a letter from Glazebrook notifying him of UNT's decision not to renew his contract.
Plaintiff appealed his discharge to the College of Arts and Sciences Grievance Committee ("CASGC"). The CASGC found (1) that Glazebrook violated the Philosophy Department By-Laws; (2) that she had been uncooperative and untruthful during the investigation; (3) that due process and equal protection standards were clearly violated; and (4) that there was no factual basis for firing Plaintiff. The report dated July 25, 2014, unanimously recommended that the Dean reverse Glazebrook's decision.
The CASGC report was forwarded to the Dean of Arts and Sciences, Dr. Arthur Goven …. Goven found that Plaintiff acted with "poor professional judgment" based on statements by Glazebrook that Plaintiff had accepted the job as DGS before June 2, 2013 and knew or should have known that CB would be under his influence in the fall semester.
Plaintiff appealed to the Provost and Vice President for Academic Affairs, Dr. Warren Burggren …. Burggren charged a subcommittee of the CASGC …. In a report dated January 26, 2015, The Subcommittee found that Plaintiff's due process rights had been violated because Glazebrook failed to consult with the Department Personnel Affairs Committee. However, the Subcommittee ultimately found that Plaintiff "did indeed exercise poor professional judgment." The Subcommittee stated that the "charge of poor judgment would remain whether or not Wilkerson was DGS because his involvement with the female student was not appropriate given her position as an incoming graduate student and employee in the [Department]." Further, the Subcommittee recommended that because Plaintiff's incident was one of several cases involving Department faculty members, "[t]hese problems must be addressed in a thorough and systematic fashion." The Subcommittee did not make a recommendation whether Plaintiff should be fired or reinstated.
On March 17, 2015, the Interim Provost and Vice President for Academic Affairs, Finley Graves, sent Plaintiff a letter upholding the decision to not reappoint Plaintiff….
Wilkerson sued, and last week the federal district court allowed his case to go forward. Here's the court's reasoning as to Wilkerson's claim that the investigation violated the federal Title IX sex-equality-in-education provision:
Plaintiff alleges retaliation by a federally funded institution because of his participation in the sexual harassment investigation against him. Defendant argues that Plaintiff is not entitled to protection because he was the person being investigated and Title IX does not protect that kind of person. In response, Plaintiff argues that the phrase "in any manner" found in 34 C.F.R. § 100.7(e) allows the subject of a sexual harassment claim to be protected from discrimination as well as a person who is not under investigation.
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be … subjected to discrimination under any education program or activity receiving Federal financial assistance." With regard to sexual harassment investigations, "no recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual … because he has … testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part." The term "discrimination" is a term that covers a "wide range of intentional unequal treatment; by using such a broad term, Congress gave the statute a broad reach."
A broad reading of the above regulation protects the subject of a sexual harassment claim. Anything less would place too great a weight on false accusations by stripping the subject of the investigation of all protections from the very institution that is supposed to be an impartial tribunal.
Here, CB filed a sexual harassment complaint against Plaintiff. Plaintiff participated and provided evidence in the investigation of CB's sexual harassment claim against him. The OEO exonerated Plaintiff for claims that he violated the Sexual Harassment Policy and the Consensual Conduct Policy. CB did not appeal, therefore making the OEO's decision final.
Nevertheless, Glazebrook fired Plaintiff for "poor judgment." Glazebrook has never said what "poor judgment" refers to. After Plaintiff appealed Glazebrook's decision to fire him, the CASGC found that Glazebrook violated University standards. The CASGC's findings were forwarded to Goven who then took ex parte evidence from Glazebrook and ultimately upheld Glazebrook's decision.
Later, Burggren referred the matter to the Ad Hoc Committee. The Ad Hoc Committee incorrectly stated that CB was a UNT employee at the time of the alleged sexual misconduct. The Ad Hoc Committee further stated that allegations of sexual harassment were a serious problem in the Department of Philosophy.
The Ad Hoc Committee did not allow Plaintiff to hear or refute any of these allegations. Using these facts, the Ad Hoc Committee found that Plaintiff used poor professional judgment and that Plaintiff was fired for cause. At the same time, the Ad Hoc Committee found that Plaintiff's due process rights were violated at the Department level. The Ad Hoc Committee also agreed with the CASGC that Glazebrook violated University standards.
The Court finds that Plaintiff has alleged sufficient facts to support a claim that he was retaliated against by UNT because he was the subject of a sexual harassment investigation and because he provided testimony and evidence in his favor. Defendants' motion on this ground is denied.
Here's the analysis of Wilkerson's Due Process Clause claim:
Plaintiff alleges a property interest in continued employment "by virtue of his written contract, which incorporates the provisions of the UNT Policy & Procedure Manual and the UNT Faculty Handbook, and of the customs of the UNT academic process".Defendants argue that Plaintiff's property claim must fail because Plaintiff's contract was a non-tenured, five-year contract with annual renewals, which is distinguishable from a tenured professor….
Here, Plaintiff has alleged that it is the long-standing custom and practice at UNT that non-tenured teachers who have multi-year appointments can rely on continued employment until the expiration of the full term of their contract as long as their job performance meets or exceeds expectations. Plaintiff has further alleged that he received favorable evaluations up until his termination. In Plaintiff's final evaluation, Glazebrook ranked him as the second best faculty member in teaching. The final evaluation further noted the several honors given to Plaintiff by the Department in 2013.
Finally, Plaintiff alleged that the OEO exonerated him of any violation of UNT's Sexual Harassment Policy or the Consensual Conduct Policy. Assuming these facts are true, Plaintiff has alleged sufficient facts to support a claim against Burggren, Goven, and Glazebrook for deprivation of his property interest in continued employment in light of the policies and practices of UNT.
And here's the analysis of Wilkerson's constitutional freedom of intimate association claim:
Plaintiff alleges that he was retaliated against and denied due process as a result of exercising his right to freely associate with other persons. "The [Supreme] Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State." These relationships are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. These types of associations that have been protected are typically couched in terms of family, such as marriage, childbirth, raising and educating children, and cohabitation with one's relatives.
Plaintiff was fired for a brief consensual relationship. [Here I assume that the court is accepting plaintiff's view of the facts, as it would on a pretrial motion such as this one, and asking whether the plaintiff has a viable legal claim based on those facts.-EV] Based on Plaintiff's allegations, the Court finds Plaintiff has alleged sufficient facts to support a claim against Burggren, Goven, and Glazebrook for infringement of his freedom of association.