Pavel v. University of Oregon

          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. ...