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Doe v. The Board of Governors of University of North Carolina

United States District Court, M.D. North Carolina

October 1, 2019



          Joi Elizabeth Peake, United States Magistrate Judge

         This matter comes before the Court on a Motion to Dismiss [Doc. #24] filed by-Defendants The Board of Governors of the University of North Carolina, The University of North Carolina at Chapel-Hill, Carol Folt in her official capacity as Chancellor, Ann Lemon in her official capacity as Assistant Provost for Academic Personnel, and Kenneth T. Andrews in his official capacity as Chair of the Department of Sociology. Plaintiffs Amended Complaint [Doc. #15] raises claims for gender discrimination in violation of Title IX of the Education Amendments of 1972 (First Claim), procedural due process (Second Claim), constructive discharge and free speech (Third Claim), breach of contract (Fourth Claim), defamation and breach of confidentiality (Fifth Claim), and negligence and negligence per se (Sixth Claim), and also includes motions for injunctive and declaratory relief, all related to a disciplinary proceeding involving Plaintiff in his position as an assistant professor at UNC. For the reasons that follow, the Court recommends that the Motion to Dismiss be granted as to Plaintiff s federal claims and that the state law claims be remanded to state court.


         Plaintiff filed a 108-page Amended Complaint Because this matter is presented on a motion to dismiss, the Court sets out the contentions as alleged by Plaintiff.

         Plaintiff was an assistant professor at UNC in the Department of Sociology until he left in June 2018. (Amended Complaint ¶ 10.i.) The claims asserted arise out of his interactions with a graduate student, identified as Jane Roe, and her complaints to UNC about Plaintiffs conduct that she believed constituted sexual harassment. Plaintiff contends that the claims made against him were contrived due to Ms. Roe's poor academic performance (id. ¶¶ 31-37), that he had spoken with her about her ongoing poor performance in his classes, including during the spring 2015 semester (Id. ¶¶ 35-36), and that as of February 2015, she was failing the spring course (id. ¶ 37). Around that same timeframe, in March 2015, Plaintiffs supervisor, Kenneth Andrews, spoke with him about a student complaint that his office was "too tightly arranged" and that "it was sometimes uncomfortable and awkward for students to meet" with him because of the configuration, but Plaintiff contends that no other matter was dscussed at that time. (Id. ¶¶ 39, 41.) Plaintiff re-arranged his office in response. (Id. ¶43.)

         As alleged in the Complaint, Ms. Roe's performance did not improve. According to the Complaint, if she received a grade of "low pass," her third while in the University's graduate program, she would not be eligible to continue in the program. (Id. ¶¶ 45-48.) Plaintiff alleges that he assigned a grade of "low pass," and that after Ms. Roe received notification of her grade, she called him and e-mailed him repeatedly, she showed up in person and pled with him to have her grade changed, she put her arms around Plaintiffs torso in tears, she followed him to the parking garage, Plaintiff drove her back to the Sociology Department, and she initially refused to get out of his car until Plaintiff raised his voice to make her leave. (Id. ¶ 51.) On the following business day, Plaintiff alleges that Ms. Roe met with an EOC Deputy Title IX Coordinator to report that Plaintiff had sexually harassed her. (Id. ¶ 53.) Plaintiff further contends that on May 14, Ms. Roe requested a formal investigation of Plaintiff for the time period "fall of 2014 to March 19, 2015," based upon allegations that he had closed door meetings (one-on-one) in which he would have her sit next to him, that on at least ten occasions he placed his hand on her inner thigh for ten seconds, that he would place his hands on her shoulders for several seconds, that he grabbed her hands and looked into her eyes, and that he would write on her assignments to meet him in his office or that he was happy to meet with her. (Id. ¶¶ 54, 57.) Plaintiff contends he had no "meaningful" notice to prepare for his interview with the Administrative Reviewer because he lacked any dates or times for the alleged offenses. (Id. ¶ 59.)

         With respect to the investigation, Plaintiff alleges that the Administrative Reviewer improperly accepted testimony from other witnesses whom Ms. Roe believed could offer similar information about their experiences with Plaintiff but would not accept character evidence about Plaintiff. Plaintiff also alleges that the University's EOC failed to follow its own rules by not attempting to reach an informal resolution of the dispute. (Id. ¶¶ 64-67.) According to the Complaint, Plaintiff was interviewed by the University's Administrative Reviewer on June 9 and 19, further met with the Reviewer several times between June 19 and June 30, and was permitted to review but not copy the Reviewer's notes. (Id. ¶ 81.) According to Plaintiff, the EOC Reviewer was biased because of her tone, because she told Plaintiff, "It's OK, you can tell me," and because of a comment she made that, "She was pretty sure that she understood this case." (Id. ¶ 82, 84.)

         The Complaint alleges that thereafter, on August 20, his supervisor, Kenneth Andrews, sent an email confirming the meeting that occurred on March 24 regarding the arrangement of Plaintiffs office, and mentioned in the email, for the first time, Plaintiffs "too-familiar" touching of students. (Id. ¶ 87.) In his Complaint, Plaintiff admits that he has "had chummy and innocuous 'physical contact' with many students and colleagues in forms such as: high fives, handshakes, and arm around the shoulder, holding of a hand in an emotional crisis, or a friendly punch in the arm, or (the act at issue in this case) a closed, outer fist's tap to the outer knee of someone seated next to him." (Id. ¶ 23.) Plaintiff also concedes that "[a] few students found Professor Doe's office quarters cramped and his familiar, 'non-sexual' contact nevertheless awkward at times." (Id. at ¶ 10l.iv.)

         According to Plaintiff, his contacts with students were originally interpreted as nonsexual, non-aggressive, and non-predatory, but that one witness "recast" her perceptions of the touching based upon her own separate experiences and her friendship with Ms. Roe, and therefore her creditability should have been "unquestionably degraded" by the trier of fact. Id. ¶¶ 95-98.) This witness is referred to in the Complaint as "Jane's Friend/' but is also later identified by Plaintiff as one of Plaintiffs former teaching assistants. As to this witness, Plaintiff alleges that that Jane's Friend told the Administrative Reviewer that she did not originally think that Professor Doe's interactions with her were inappropriate at the time they occurred. (Id. ¶ 97.xii.) However, she reached back out to the Administrative Reviewer to explain that she nevertheless thought "this counts as sexual harassment." (Id.) Plaintiff alleges that this witness was willing to:

"start a war" on "gender issues" if necessary to get them "taken seriously" . . . not because Professor Doe actually sexually harassed her (as her own testimony would indeed later be that Professor Doe "never touched pier] thigh" and that she "never directly said that [she] felt uncomfortable" with his familiar chummy, non-sexual contact) but rather because she had previously been seriously sexually assaulted multiple times .... [and] was actively suffering from and being treated for PTSD.

(Id. ¶ 97.iii, iv.)

         An EOC Report was published on August 24, with redactions made appearing to protect the identity of individuals who were interviewed. Id. ¶¶ 89, 90.) The Complaint, apparently quoting from the EOC Report, alleges that the EOC Report concluded that that it was more likely than not that Plaintiff

"engaged in sexual harassment of Qane Roe] [and there is] sufficient evidence to support a pattern of behavior and propensity by [Plaintiff] to engage in conduct with female students when working side-by-side with them, particularly physical contact of various degrees which made them feel uncomfortable. The evidence makes it more likely than not that [Jane Roe's] version of the events should be considered as true . . . ."

(Id. ¶ 100) (emphasis in Amended Complaint).[1]

         Plaintiff received a letter of reprimand on August 27 from Dean Hartlyn, which also included the content of the email sent to Plaintiff by Defendant Andrews on August 20 regarding the arrangement of Plaintiff s office and his meetings with students. (Id. ¶¶ 104-05.) Jane Roe appealed to the Student Grievance Committee (SGC) contending that Plaintiff should have been more strictly disciplined. (Id. ¶ 107.) Plaintiff completed his EOC training required by the EOC Report, (Id. ¶ 108.)

         While the SGC appeal was pending, Jane's Friend (who was Plaintiffs former teaching assistant) conducted an "invitation-only meeting" on November 13, which included "multiple members of the EOC," including its then director, the purpose of which was to discuss the "'problem' of Professor Doe remaining on campus and exposed to students." (Id. ¶ 111.) The Complaint alleges that Jane's Friend "intentionally dsclosed confidential and defamatorily misleading information." (Id. ¶ 112.) This was one of multiple meetings arranged by Jane's Friend which included UNC administrators and students. Demands were made by Jane's Friend that Plaintiff not teach and that he be dismissed. (Id. ¶ 113.) According to the Complaint, UNC condoned these meetings and participated in them by sending administrators who did not curtail the speech at the meetings by others. (Id. ¶ 114.)

         Plaintiff alleges that SGC hearings were conducted on December 9 and 17, but raised a host of procedural irregularities or questionable testimony. (Id. ¶ 122.)[2] On January 12, 2016, the SGC affirmed the EOCs finding that sexual harassment "has affirmatively occurred." (Id. ¶ 124.) According to the Complaint, the opinion made the following finding:

Specifically, the Hearing Panel concluded that the Respondent engaged in unwelcome physical conduct based on sex that created a hostile, intimidating, or abusive environment for the Grievant. The Hearing Panel determined that the Respondent placed his hand on the Grievant's thigh while they were alone in his office on more than one occasion. Although the Hearing Panel did not conclude that a preponderance of the evidence showed that such conduct occurred with the frequency and duration alleged by the Grievant, the Hearing Panel found that the conduct was sufficiently severe and pervasive that it altered the conditions of the Grievant's ...

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