United States District Court, D. Maryland
J. HAZEL United States District Judge
possible for an institution or individual to seek to do the
right thing, motivated by proper motives and, yet, do so in
the wrong way. This may be such a case. Defendant McDaniel
College, Inc. ("McDaniel"), its President,
Defendant Dr. Roger Casey, and its Provost, Defendant Dr.
Jeanine Stewart (collectively, along with Chairman of the
Board of Trustees Defendant Martin Hill,
"Defendants"), became aware of a potential claim of
harassment, hostile work environment and stalking from a
departing professor and immediately initiated an
investigation. But the target of that investigation,
Plaintiff Dr. Pavel Naumov, has adduced sufficient evidence
to create a genuine dispute of material fact as to whether
the manner in which Defendants pursued the investigation,
which led to his termination, violated their own Title IX
Policy and, thus, breached an agreement between the parties.
As a result, having held a hearing on this matter on February
13, 2017, see Loc. R. 105.6 (D. Md. 2016), the Court
grants, in part, and denies, in part, Defendant's Motion
for Summary Judgment. Specifically, Plaintiffs claims for
Violation of the Title IX Policy (Count I) and Violation of
Faculty Handbook (Count IV) will be merged and will survive
as one count, while claims for Intentional Infliction of
Emotional Distress (Count II) and Violation of Due Process
(Count III) are dismissed.
is a liberal arts college located in Westminster, Maryland.
ECF No. 53-11 ¶ 3. Plaintiff joined the faculty at
McDaniel in 2005 as an Assistant Professor of Computer
Science. Id. ¶ 4. In 2011, Plaintiff was
awarded tenure and promoted to Associate Professor of
Computer Science. ECF No. 53-12 at 2. Dr. Stewart served as
Provost and Dean of Faculty for McDaniel College for two
years, until the end of the 2014-2015 academic year. ECF No.
53-8 at 3-4. On April 28, 2014, Dr. Sara More, an Associate
Professor of Computer Science at McDaniel, who had worked
with Plaintiff, informed Dr. Stewart that she planned to
resign her tenured position at McDaniel and accept a
non-tenure-track position at Johns Hopkins University. ECF
53-5 at 8. Dr. More stated that she would probably not have
considered leaving McDaniel if not for the presence of
Plaintiff. Id. Dr. Stewart arranged for follow-up
mee:ings with Dr. More and Dr. More shared her concerns
regarding Plaintiff in more detail. Specifically, Dr. More
relayed that, despite repeated requests that he stop,
Plaintiff made frequent comments about her appearance. ECF
53-6 at 2. On one occasion, when she was wearing a sweater
with circles, Plaintiff stared at her chest and said
"I'll be thinking of circles all day."
Id. Additionally, Plaintiff would walk Dr. More to
her car at the end of every day, even after having been asked
not to do so. Id. Dr. More did not allege any
inappropriate touching by Plaintiff, but felt that their
interactions defied appropriate social boundaries and had
been uncomfortably intense, with Plaintiff once telling her
"if I weren't married I would marry you."
Id. at. 3. Dr. More also complained that, as her
date of departure approached, Plaintiff asked if the two of
them could have lunch together, which bothered her because
she thought it was inappropriate for just the two of them to
have lunch and not the entire department. Id. at 5.
Dr. More shared with Dr. Stewart a lengthy letter, emails and
cards she had received from Plaintiff. ECF No. 53-6 at 6. Dr.
Stewart's impression of the communications was that they
were "overly perscnal and presumptuous" and
"smacked of adolescent intensity." Id. at
7. In an email discussing the documents Dr. More permitted
her to read, Dr. Stewart wrote: "[Dr. More] brought with
her four documents that she allowed me to read, but did not
want to photocopy or leave in my possession. This is
consistent with her ongoing request to be treated as an
anonymous witness rather than a complainant."
Id. at 6.
result of the information provided by Dr. More, Dr. Stewart
told Dr. More that she felt obligated to file a Title IX
claim on behalf of McDaniel and that an investigation would
follow. ECF No. 53-6 at 2-3. Dr. Stewart recorded in her
notes that Dr. More was "comfortable w[ith] this
(assuming confidentiality and hoping 10 be gone before
conclusion)." Id. at 4. Additionally, Dr. More
agreed that she would share documentation from her file with
to discussing the investigation, it is useful to understand
the policies that were intended to guide the investigation
and results. There were three editions of the McDaniel
Faculty Handbook in place during the relevant time period in
this case: a February 2014 edition, an August 2014 edition
and a December 2014 edition. ECF No. 53-11 ¶ 6. All
three editions reference McDaniel's "Affirmative
Action / Equal Opportunity Manual, " and provide that
"when a grievance is alleged to be discrimination or
harassment, procedures outlined in the Affirmative Action
Manual will be followed." Id. ¶¶ 6-7.
The Affirmative Action Manual includes the McDaniel Title IX
Policy as an appendix. Id. ¶ 7.
Title IX Policy was first enacted in approximately 2012 and
was updated several times. ECF No. 53-11 ¶ 8. A Title IX
workshop for faculty was scheduled in November 2012, changes
to the policy were disseminated by email to the faculty on
April 1, 2013, and faculty and staff were required to
participate in annual Title IX training beginning on June 5,
2014. Id. The June 2014 Title IX Policy was the
version in effect at the time a Title IX complaint was filed
against Plaintiff in September 2014. ECF No. 53-14. It
provides that "if the respondent is a faculty member,
his/her tenure status is not a protection, since
discrimination, harassment and sexual assault violate basic
human rights guaranteed by law, and tenure is not a guarantee
against sanction due to either established academic
principles or civil or criminal laws." Id. at
Stewart reported Dr. More's complaints to McDaniel's
Title IX advisor, Dr. Julia Jasken, who ordered an
investigation. ECF No. 53-8 at 5-6. The investigation was
conducted by Campus Safety Detective Eric Immler.
Id. at 29. After an investigation was completed, Dr.
Casey, McDaniel's President, and Dr. Stewart discussed
the results and believed that they had an obligation imposed
by the Department of Education's Office of Civil
Rights' Dear Colleague Letter, dated April 4, 2011
("Dear Colleague Letter"), to pursue a complaint on
behalf of Dr. More and the college even if Dr. More
"wished to remain as anonymous as possible." ECF
53-15 at 8-9.
Stewart met with Plaintiff on August 25, 2014, at which time
she explained the charges against him, informed him of the
Title IX Policy, gave him the option to resign before any
formal hearing began, gave him access to the Human Resources
Department and encouraged him to speak with his own counsel.
ECF No. 53-8 at 32-33; ECF No. 53-13 at 7. Plaintiff was also
informed during tie meeting that he was being suspended with
full pay and was to remain away from campus until further
notice. ECF No. 53-8 at 16. He was, however, invited to
contact Title IX Coordinator Jennifer Glennon, if needed,
and, even though he had no access to send campus email, he
was given permission to speak to witnesses. Id. at
August 29, 2014, Plaintiff declined the opportunity to resign
and requested that the formal grievance procedures specified
in the policy begin. ECF No. 53-3 at 57. Dr. Casey discussed
with Dr. Stewart the need for her to remove herself from the
role the Provost would typically serve so that she could be
designated as the complainant in a Title IX proceeding
against Plaintiff. ECF No 53-15 at 3-9.
September 8, 2014, Dr. Stewart, as the complainant, filed a
formal Title IX grievance against Plaintiff. ECF No 53-10 at
2. In accordance with McDaniel's Title IX Policy, on
September 12, 2014, Plaintiff was notified that a preliminary
hearing would take place during the week of October 6, 2014
to decide Aether to schedule a formal hearing. ECF No. 53-16
at 2. The Title IX Coordinator appointed five faculty or
staff members to sit as the Grievance Committee to consider
the charges against Plaintiff. ECF No. 53-13 at 8. Plaintiff
did not object to the composition of the committee and wrote
in his journal: "I doubt I could have found better
candidates myself" ECF No. 53-18 at 2-3. The Grievance
Committee held a preliminary hearing, and in accordance with
the Title IX Policy, they reviewed the complaint without
knowing the identities of the complainant or respondent. ECF
No. 53-19 at 3-4. The Grievance Committee decided to
institute a formal hearing and The parties were notified by
email. ECF No.
Grievance Committee held several meetings including hearings
on October 11 and 15, 2014. ECF No. 53-11 ¶ 13. Both
Plaintiff and Dr. Stewart presented lists of witnesses and
Plaintiff provided a list of suggested questions. ECF No. 21.
After hearing testimony, the Grievance Committee decided that
Plaintiff was responsible for harassment, hostile environment
and retaliation in violation of McDaniel's Title IX
Policy, but was not responsible for stalking. ECF No. 22. The
decision was communicated to the parties by letters emailed
to both. ECF Nos. 23 & 24. Plaintiff acknowledged
receiving the results but complained that they were delivered
by email and not in person. ECF No. 53-11 ¶ 14.
October 31, 2014, Plaintiff filed an appeal of the Grievance
Committee decision. ECF No. 53-11 ¶ 14. According to the
Title IX Policy, the Appeal Panel is to consist of the
Provost, Vice President for Finance and the Vice President /
Dean of Student Affairs. ECF No. 53-14 at 15. Since the
Provost, Dr, Stewart, was the complainant, she recused
herself and no one was appointed in her place. ECF No. 53-13
at 12. The Appeal Panel met several times and they were
provided with written appeal documents from Plaintiff and all
documents and transcripts from the Grievance Committee
hearings. ECF No. 53-13 at 13-14, 99. On November 21, 2014,
the Appeal Panel issued its decision, affirming the Grievance
Committee's decision that Plaintiff was responsible for
harassment and hostile environment but overturned the
decision that Plaintiff was responsible for retaliation. ECF
reviewing the case, Dr. Casey, as President, recommended that
Plaintiff be dismissed from the College for reasons of
serious professional misconduct consistent with moral
turpitude and for deliberate violation of the rights and
freedoms of faculty members. ECF No. 53-9 at 14-15. On
December 3, 2014, the Appeal Panel upheld the recommended
sanction of dismissal. ECF No. 53-29. In accordance with the
Title IX Policy, Dr. Casey informed Plaintiff that he would
seek the additional recommendation of the Faculty Affairs
Committee ("FAC"), which was required because
Plaintiff was a tenured faculty member. ECF No. 53-30 at 2.
submitted a letter with exhibits to the FAC, which included
the assertion that Dr. Casey was dissatisfied with Plaintiff
in Spring 2013 when Plaintiff requested secret paper ballots
to vote on the appointment of Dr. Stewart as Provost. ECF No.
53-3 at 7-9, 47-54. He claimed that the investigation was a
pretext for their desire to dismiss him. ECF No. 53-3 at
47-48. During his deposition in this case, Plaintiff
speculated that Dr. Stewart may have been motivated by her
feminist beliefs but then acknowledged he had no evidence to
support that speculation. Id. at 11. He also opined
that Dr. Stewart might have retaliated against him because of
his work on the Faculty Development Committee and his
discussions about travel budgets and funding. Id. at
10. Dr. Casey gave a PowerPoint presentation about the
process to the FAC and then left the meeting. ECF No. 53-9 at
12. Dr. Stewart, who is normally a member of the FAC, recused
herself from their work on the case. ECF No. 53-8 at 10. The
FAC voted by majority vote that the recommended sanction of
dismissal was appropriate. ECF No. 53-31. On January 14,
2015, the Board upheld the sanction of dismissal and
Plaintiffs employment was terminated effective January 20,
2015. ECF No. 53-33 at 3.
admits that he neither sought nor received treatment for any
kind of emotional distress arising out of his employment at
McDaniel. ECF No. 53-34 at 5-6.
STANDARD OF REVIEW
court "shall grant summary judgment if the movant shows
that 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(c). A material fact is one that "might
affect the outcome of the suit under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue over a material fact exists "if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. In
undertaking this inquiry, the Court must consider the facts
and all reasonable inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). But this Court must also abide by its affirmative
obligation to prevent factually unsupported claims and
defenses from going to trial. Drewitt v. Pratt, 999
F.2d 774, 778-79 (4th Cir. 1993).
burden is on the moving party to show:
that there is no genuine issue as to any material fact.
However, no genuine issue of material fact exists if the
nonmoving party fails to make a sufficient showing on an
essential element of his or her case as to which he or she
would have the burden of proof.
Benton v. Prince George's Cmty. Coll, No. CIV.A.
DKC 12-1577, 2013 WL 4501324, at *3 (D. Md. Aug. 21, 2013)
(citing Celotex Corp. v. Catrett, ATI U.S. 317,
322-23 (1986)). Thus, upon a motion for summary judgment, the
opposing party "may not rest upon . .. mere allegations
or denials, " but rather, "must set forth specific
facts showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 248.
Violation of Title IX Policy (Count I)
are potentially two related, but distinct, claims to be
considered in Count I. Although not clearly articulated in the
Amended Complaint, Plaintiff now contends that he was fired
because of his gender in violation of Title IX and, more
specifically, that his termination was an "erroneous
outcome that was motivated by gender bias." ECF No. 58
at 28. Additionally, Plaintiff asserts that the process by
which he was investigated and terminated violated a
contractual obligation owed to him through McDaniel's
Title IX Policy. Both claims will be addressed in turn.
Title IX: Erroneous Outcome Claim
claims that Defendant's decision to pursue charges and
terminate him violated his rights under Title IX. Title IX of
the Education Amendments of 1972 provides in relevant part:
No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any education program or
activity receiving Federal financial assistance . ..
20 U.S.C. § 1681(a). An implied right of act en exists
for enforcement of Title IX. Cannon v. Univ. of
Chicago, 441 U.S. 677, 717 (1979). Such a right exists
where the Plaintiff has been (1) discriminated against on the
basis of gender, (2) by an educational institution receiving
federal funds. Preston v. Comm. Of Va. Ex rel. New River
Cmty. Coll, 31 F.3d 203, 206 (4th Cir. 1994). McDaniel
has not disputed that it is an educational institution
receiving federal funds, thus, the only issue for analysis is
whether Plaintiff was discriminated against on the basis of
IX claims against universities arising from disciplinary
hearings' are analyzed under the 'erroneous
outcome' standard, 'selective enforcement'
standard, 'deliberate indifference' standard, and
'archaic assumptions' standard." Doe v.
Univ. of the South,687 F.Supp.2d 744, 756 (E.D. Tenn.
2009) (quoting Mallory v, Ohio Univ., 76 F App'x
634, 638 [6th Cir. 2003)). Plaintiff proceeds under the
"erxnecus outcome" standard. ECF No. 58 at 28
("Dr. Naumov contends that McDaniel's decision