United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Ann
Aiken United States District Judge
Plaintiff
CHIXapkaid Pavel asse1ts various claims related to the
termination of his employment against defendants University
of Oregon, Doug Blandy (the University's Senior Vice
Provost for Academic Affairs), Penelope Daughe1ty (the
University's Director of Affirmative Action & Equal
Opp01tunity), and Randy Kamphaus (the University's Dean
of the College of Education).[1] Plaintiff alleges defendants
violated his rights under federal discrimination statutes,
the Due Process Clause, and the First Amendment. I previously
entered summary judgment in defendants' favor on
plaintiffs Due Process Clause claims, and defendants now move
for summary judgment on plaintiffs remaining claims.
Oral
argument on this motion was held on November 29, 2017, at
10:00 a.m. For the reasons set forth below, I GRANT
defendants' second motion for summary judgment (doc. 79).
BACKGROUND
Plaintiff
was a tenured professor at the University of Oregon's
College of Education from September 16, 2010, until the
University of Oregon ("the University") terminated
his employment contract on January 21, 2015, in response to a
student's sexual harassment complaint. At all relevant
times, plaintiff was a member of the United Academics of the
University of Oregon, American Association of University
Professors - American Federation of Teachers, AFL-CIO,
("the Union") and the terms of his employment were
governed by the collective bargaining agreement ("the
CBA") between the University and the Union. At the time
of his termination, plaintiff was the senior Native American
faculty member and the only Native American full professor at
the University. He was also the first tenured professor at
the University to be fired for sexual harassment.
On
November 15, 2014, Janne Underriner, the University's
Director of the Northwest Indian Language Institute, received
a complaint about plaintiffs conduct at a University event
the previous night. The initial complaint came via a phone
call from the father of a first-semester freshman student.
Two days later, in a private interview with the University of
Oregon's Office of Affirmative Action and Equal
Opportunity ("OAAEO"), the student explained that
she knew plaintiff because he was a close family friend
involved in her tribal community. She had been in touch with
him several times before she began courses at the University.
At the November 14 event, the student approached plaintiff to
say hello and took a photo with him. She alleged that
plaintiff asked her to go into the hallway and talk, because
he found it difficult to hear in the crowded main event
space. The hallway was lined with mirrors. The student stated
that plaintiff, who seemed to be intoxicated, got close to
her face and told her to turn and look at herself in one of
the mirrors. The student alleged that plaintiff put his right
arm around her and turned to her face the mirror; while they
looked in the mirror together, he told her she was
"beautiful" and that all the boys were
"drooling" over her. Dugan Deck Ex. A at 9. The
student reported that plaintiff then kissed one of her hands,
pulled her close to him, kissed her cheek and forehead in a
non-platonic manner, rubbed her back, and moved his hand down
past her waist to rest on her butt. When she attempted to
leave the interaction, plaintiff allegedly followed her into
an elevator, stood behind her, and touched her dress and
underwear when the other elevator passengers were facing the
exit doors and could not see what he was doing. The student
did not want plaintiff to touch her in the way that he did
and felt extremely uncomfortable throughout the interaction.
The
University placed plaintiff on administrative leave while it
investigated the student's claim. The formal
investigation launched on November 20, 2014. On November 21,
2014, plaintiff learned the university had placed him on
leave.
In an
interview with OAAEO, plaintiff denied the substance of the
student's allegations and reported that he was
"surprised, shocked and discouraged" by the
allegations. Id. at 17. The were no eyewitnesses to
most of the interaction, but OAEEO interviewed another
student who corroborated some parts of the complainant's
story. OAEEO also interviewed faculty, including Underriner,
who reported that the interaction negatively affected the
student academically, including by causing her to change her
area of study so she would not have to take classes taught by
plaintiff.
OAEEO's
investigatory file also documents a complaint, filed three
years earlier by a Ph.D. student, that plaintiff had
subjected that student to "inappropriate and unwelcome
sexual attention." Id. at 18, This included
inappropriate touching, including "tight hugs, "
touching the student's knee repeatedly during
conversation, and even poking her in the belly button
"as a joke." Id. at 53. The student
reported that, on a work-related trip, the situation
escalated when plaintiff stopped in front of a display window
and turned the student toward the window. After telling the
student to close her eyes, plaintiff allegedly put his hand
on his shoulder and then moved it along her arm to her waist.
He then turned the student toward him, making her think he
was about to kiss her. The student expressly told plaintiff
that she was interested only in a professional relationship;
he responded by telling her that many students tell him they
want to work as part of his research team when, in fact,
those students are simply attempting to get close to him
because they are sexually attracted to him. After that
conversation, plaintiff told the student he no longer knew
how to act around her, suggested they might have to
correspond only electronically, and once again touched the
student's knee during a conversation, at which point the
student told plaintiff she no longer wished to work with him.
That earlier complaint resulted in counseling but not in any
sort of formal discipline.
On
December 18, 2014, Anne Bonner and defendant Penny Daugherty
from OAAEO sat down with plaintiff and union representative
Debra Merskin to discuss the investigation. At the meeting,
Daugherty and Bonner relayed their suspicion that plaintiff
had engaged in a pattern of sexual harassment, and
interviewed him to collect additional information regarding
the accusations. Merskin characterized the tone of the
meeting as passive-aggressive, disrespectful, hostile, and
accusatory. She further stated that, in her experience, OAAEO
always approaches investigations in that aggressive manner-as
though the investigated faculty member's guilt were a
foregone conclusion. After the meeting, Daugherty told
plaintiff that he was free to provide any additional evidence
or documentation by January 6, 2015. Plaintiff believed he
did not have time to adequately respond, so he never
submitted any additional evidence.
At the
conclusion of the University's investigation, plaintiff
and Merskin met with various staff members on January 16,
2015, to discuss the University's findings. Participating
staff members included defendants Doug Blandy and Randy
Kamphaus. The University found by a preponderance of the
evidence that plaintiff violated its sexual harassment policy
and interfered with students' rights to equal access to
education. Specifically, the University found that the
plaintiff "engaged in unwelcome verbal and physical
conduct of a sexual nature" that included touching a
student's back, buttocks, and underwear. Blandy Decl. Ex,
3 at 1. The University also found that plaintiff made
"[inappropriate comments of a sexual nature" and
remarked "on the student's appearance after having
her stand in front of a mirror." Id. These
findings were presented to plaintiff in writing. Plaintiff
had the opportunity to respond but made no comments during
the meeting.
At the
January 16 meeting, the University also notified plaintiff it
intended to terminate their employment relationship on
January 21, 2015. The University gave plaintiff until January
20, 2015, to submit any written response or relevant evidence
to change the termination decision, Plaintiff never replied
with any additional testimony or evidence. Instead, plaintiff
responded with a request for more information. The University
did not comply with plaintiffs request.
January
16 meeting was the first time plaintiff learned that the
university contemplated terminating him.[2]
On May
5, 2015, plaintiff grieved his termination under the CBA. On
February 22, 2016, the University offered plaintiff the
opportunity to engage in arbitration under the CBA. Had the
arbitration proceeded, plaintiff would have been able to
"call witnesses, offer exhibits, and make
arguments" that the University did not fire him for just
cause. Brady Decl. ¶ 4 (doc. 39). Plaintiffs union
withdrew from the arbitration and as such, plaintiff never
received a post-termination hearing.[3]
STANDARD
OF REVIEW
Summary
judgment is appropriate if "there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
moving party has the burden of establishing the absence of a
genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party shows the absence of a genuine issue of material
fact, the nonmoving party must go beyond the pleadings and
identify facts which show a genuine issue for trial.
Celotex, 477U.S. at 324. "Summary judgment is
inappropriate if reasonable jurors, drawing all inferences in
favor of the nonmoving party, could return a verdict in the
nonmoving party's favor." Diaz v. Eagle Produce
Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
DISCUSSION
This
case comes at a unique moment. For years, allegations of
sexual assault and harassment have been swept under the rug
when they instead should have been taken seriously,
investigated, and decisively acted upon. As a glance at any
news source shows, that is changing. The current national
discussion revolves daily around allegations of sexual
assault and harassment, and what institutions, communities,
and governments should do, or should have done, to respond
and protect the vulnerable.
At the
same time, issues of race are coming to the fore in a similar
long-overdue manner. The impacts of our shameful racial
history, pervasive implicit bias, and institutionalized
racism are now part of any meaningful discussion on social or
institutional responsibility in America today. Norms on both
fronts are in flux in dramatic ways, not just within
progressive segments of society, but across the nation as
whole.
The
pressure facing institutions, particularly universities, to
deal swiftly, seriously, and correctly with allegations of
sexual assault is rightfully high, because the stakes for
both victim and accused are also incredibly high. In such an
environment, as the pendulum swings away from a position it
has occupied for so long, shifting presumptions and burdens
of proof, it is liable to take out many in its path. It is of
no small concern that those most likely to experience the
detrimental impacts from any unfair application of these new
priorities will be people of color.
Historically
and currently, people of color shoulder disproportionate
shares of punishment. See, e.g., Demographic
Differences in Sentencing: An Update to the 2012
Booker Report (U.S. Sentencing Commission Nov. 2017)
(reporting that, in the federal system, black male offenders
receive sentences on average 19.1 percent longer than
similarly situated white male offenders). People of color are
also disproportionately the victims of sexual harassment.
See, e.g., Tanya Kateri Hernandez, Sexual
Harassment and Racial Disparity: The Mutual Construction of
Gender and Race, 4 Gender Race & Just. 183, 184-85
(2001) (surveying EEOC sexual harassment complaint data), A
debate rages over whether the shifts in how we deal with
campus sexual assault and harassment will disproportionately
harm men of color, Compare, e.g., Antuan M. Johnson,
Title IX Narratives, Intersectionality, and Male-Based
Conceptions of Racism, 9 Geo. J. Law & Mod. Crit.
Race Persp. 57, 59 (2017) ("There is a history of race
being used as a political tool to shut down conversations
about sexual assault, even when it directly affects black
women.") with, e.g., Janet Halley, Trading
the Megaphone for the Gavel in Title IX Enforcement, 128
Harv. L. Rev. F. 103, 109 (2015) ("To the extent that
the campus-sexual-assault movement expresses the priorities
and visions of white middle-class women, it may not be
providing us with everything we need to know to make fair
decisions in cases involving class, race, and other key
differences.")
It is
well established that implicit bias affects almost every
decision that people make. See, e.g., Justin D.
Levinson et al., Judging Implicit Bias: A National
Empirical Study of Judicial Stereotypes, 69 Fla. L. Rev.
63, 79-82 (Jan. 2017). I would be remiss if I failed to
acknowledge that such bias has wide-ranging impacts on
institutional processes as a whole. As important decisions
are made, both on the grand scale and within the microcosm of
individual situations, we must be mindful of the ever-present
risk of perpetuating longstanding racial injustice. It is
critical to change the way we respond to sexual harassment
and assault, but members of minority communities must not be
sacrificed as part of a knee-jerk reaction to political
pressure to deal harshly with allegations of a sexual nature.
Here, I
am presented with an individual case in which a Native
American professor was fired after a student accused him of
sexual harassment. I cannot adjudicate plaintiffs claims as a
way of advancing my own views of how best to resolve the
broad policy concerns outlined above; I am constrained to
make a ruling based on the evidence presented in this case.
Here, the evidence falls short of the necessary threshold to
proceed to trial.
I.
Employment Discrimination Claims; Race
Discrimination
Plaintiff
alleges that defendants fired him at least in part because he
is Native American. He uses two vehicles to assert his race
discrimination claims: (1) a claim, asserted via 42 U.S.C.
§ 1983, that individual defendants violated 42 U.S.C.
§ 1981, which prohibits racial discrimination in the
formulation (or termination) of contracts, and (2) a claim
that the University violated Title VII of the Civil Rights
Act, which prohibits racial discrimination in making
employment decisions. Here, those two claims can be analyzed
together. To establish race discrimination under Title VII, a
plaintiff must offer evidence that gives rise to "an
inference of discrimination in whatever manner is appropriate
in the particular circumstances." Hawn v. Exec. Jet
Mgmt, Inc.,615 F.3d 1151, 1156 (9th Cir. ...