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Naumov v. McDaniel College, Inc.

United States District Court, D. Maryland

March 31, 2017

PAVEL NAUMOV, Plaintiff,
v.
MCDANIEL COLLEGE, INC., et al, Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL United States District Judge

         It is 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.

         I. BACKGROUND[1]

         McDaniel 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.[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.

         Additionally, 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.

         As a 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 investigators. Id.

         Prior 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.

         McDaniel's 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 14.

         Dr. 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.

         Dr. 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 16-17.

         On 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.

         On 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.

         The 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.

         On 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 No. 53-26.

         After 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.

         Plaintiff 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.

         Plaintiff 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.

         II. STANDARD OF REVIEW

         The 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).

         The 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.

         III. DISCUSSION

         A. Violation of Title IX Policy (Count I)

         There are potentially two related, but distinct, claims to be considered in Count I.[3] 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.

         1. Title IX: Erroneous Outcome Claim

         Plaintiff 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 gender.

         '"Title 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 ...


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