Fall v. Indiana University Bd. of Trustees

• Decision Date: 23 July 1998
• Docket Number: No. 3:96-CV-205.,3:96-CV-205.
• Citation: 12 F.Supp.2d 870
• Parties: Lynn FALL, Plaintiff, v. INDIANA UNIVERSITY BOARD OF TRUSTEES and Daniel Cohen, Ph.D., Defendants.
• Court: U.S. District Court — Northern District of Indiana

12 F.Supp.2d 870

Lynn FALL, Plaintiff, v. INDIANA UNIVERSITY BOARD OF TRUSTEES and Daniel Cohen, Ph.D., Defendants.

No. 3:96-CV-205.

United States District Court, N.D. Indiana, Fort Wayne Division.

July 23, 1998.

COPYRIGHT MATERIAL OMITTED

Brian J. Hurley, Douglas Alexa Koeppen and Hurley, Valparaiso, IN, for Plaintiffs.

Susan B. Tabler, Ice Miller Donadio and Ryan, Indianapolis, IN, John C. Hamilton, Doran Blackmond Ready Hamilton and Williams, South Bend, IN, Kelly A. Evans, Constance Baker Phillips, Ice Miller Donadio and Ryan, Indianapolis, IN, for Defendants.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This matter is before the Court¹ on two motions for summary judgment filed on May 15, 1998; the first by Defendant the Board of Trustees of Indiana University ("the University"), and the second by Defendant Daniel Cohen ("Cohen").² On June 8, 1998, the Plaintiff, Lynn Fall, ("Plaintiff") filed response briefs to the motions of the University and Cohen, and Cohen and the University filed their respective replies on June 19 and June 26, 1998.

On the very day that the University filed its reply, the Supreme Court handed down two decisions which arguably created new rules of law applicable to this case. See Burlington Industries, Inc. v. Ellerth, ___ U.S. ___, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, ___ U.S. ___, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Accordingly, the Court allowed the parties an opportunity to address these cases. The Plaintiff and the University filed supplemental briefs on July 9, 1998, and supplemental response briefs on July 16 and 17, 1998, respectively.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons hereinafter provided, the motions for summary judgment will be DENIED.

II. FACTUAL BACKGROUND

The Plaintiff's amended complaint advances three counts: the first asserts a sex discrimination claim against the University pursuant to 42 U.S.C.2000e-2(a)(1), as amended ("Title VII"); the second asserts a state law battery claim against Cohen; and the third advances a claim under 42 U.S.C. § 1983 ("§ 1983") against Cohen in his individual capacity.³

In early 1994, the Plaintiff, as a resident of Plymouth, Indiana, attended a meeting with IUSB representatives including Jacqueline Caul ("Caul"), IUSB's Director of Off Campus Programs. The purpose of the meeting was to generate interest in IUSB classes to be held in Plymouth. After the meeting Caul approached the Plaintiff and inquired if she would be willing to represent IUSB on a part-time temporary basis to promote those classes. (Plnf. dep. at 87-89, 106.)

The Plaintiff was no stranger to IUSB, having previously been a student there, and later, an employee of a design/construction firm that solicited business from IUSB. (Plnf. dep. at 129-132.) In both instances, the Plaintiff became acquainted with Cohen in his role as Chancellor of IUSB. (Id.)

The Plaintiff accepted Caul's offer to be a liaison with the Plymouth community, and Plaintiff commenced her employment with IUSB in March of 1994, and in that capacity would have meetings with Cohen, albeit casual and brief. (Id. at 145-147.) Ultimately, the Plaintiff's position with IUSB grew to full-time employment with salary and benefits commensurate with the status of the job, although she was only in an "acting" position, meaning that the job was temporary and would need to be "posted" (i.e., she would have to reapply) at the end of one year, or by July 31, 1995. (Id. at 111, 506, 532.)

Caul, and not Cohen, is the person who hired the Plaintiff. (See Cohen dep. at 214-215.) In fact, Cohen was concerned about the effect of this new position on IUSB's budget. (Id. at 214.)

At any rate, on November 11, 1994, while on the IUSB campus, the Plaintiff received an e-mail message from Cohen. (Plnf. dep. at 153-54.) The message requested that the Plaintiff make an appointment to see him regarding legislative issues and the effect of the recent 1994 election. (Id. at 154.) The Plaintiff proceeded to Cohen's office to make the appointment. (Id. at 161-62.) However, Cohen was available, and indicated that he would be able to see the Plaintiff that day. (Id. at 162-63.)

When the Plaintiff entered Cohen's office, he closed the door behind her. (Id. at 173.) The two sat and talked about the state legislature until Cohen got a "look" on his face that made the Plaintiff uneasy. (Id. at 175.) The Plaintiff claims that Cohen then told her that the e-mail topic had been merely a "ruse" to get her into his office. (Id. at 175-76.) Feeling uneasy, the Plaintiff decided to leave. (Id. at 176.) However, as the Plaintiff stood to leave, Cohen put his arms around the Plaintiff and grabbed her "like a gorilla." (Id. at 178.) Cohen then started kissing her, forcing his tongue in her mouth, and started grappling with his hands down her blouse. Cohen succeeded in forcing his hand down the Plaintiff's blouse far enough to grope her breasts as he was grabbing her. (Id. at 179.) The Plaintiff was eventually able to break away from Cohen, stating at the same time, "I really have to go." (Id. at 180.) At that point Cohen stepped aside and opened the door for the Plaintiff to exit. (Id. at 180-81.) The Plaintiff left Cohen's office and immediately proceeded to a restroom where she vomited. (Id. at 186-88.) The Plaintiff describes the action in Cohen's office as an attack that made her feel paralyzed, terrified, and unable to physically resist. (Id. at 178, 184-86.)

The Plaintiff did not complain to anyone immediately following the incident. (Id. at 190-91.) However, she did attempt to avoid further contact with Cohen, which she was able to do since she only needed to occasionally visit the IUSB campus to pick up her mail. (Id. at 106-07.)

Nevertheless, the Plaintiff voluntarily attended a Christmas party hosted by Cohen the next month. (Id. at 194-95.) On this occasion, she merely said "Hello" to Cohen and continued on into the party. (Id. at 198-99.) She also had contact with Cohen at a school of business Christmas party at Caul's house which she voluntarily attended. (Id. at 200.) Thereafter, the Plaintiff's next contact with Cohen was on January 13, 1995, while the Plaintiff was attending a reception at an art department lecture. (Id. at 204.) At the reception, a food table was located a few feet from Cohen's office. (Id. at 204-05.) Although Cohen was not participating in the lecture, he exited his office to obtain something from the food table. (Id. at 205.) At the food table, Cohen and the Plaintiff engaged in conversation. The Plaintiff asked Cohen whether he had seen the attendance figures for Plymouth. (Id. at 207.) The Plaintiff relates that Cohen responded as follows: "Well, the Plymouth numbers look good but let's look at everybody else's numbers and, you know, there is probably going to be a cut in off-campus programs and we know where that cut will be." (Id. at 208.) The Plaintiff took this comment as meaning that her job would be the one "cut." (Id. at 208-11.) Nevertheless, the Plaintiff concedes that at the time she was hired the Chancellor was not pleased about spending money on her salary. (Id. at 500.) The Plaintiff contends that the food table conversation was Cohen's way of letting her know that she was going to be punished because she "didn't do what he wanted ...." (Id. at 652.)⁴

On February 23, 1998, the Plaintiff reported the November incident to Caul, her immediate supervisor. (Id. at 231.) Caul indicated to the Plaintiff that Caul had an obligation to take the information to her superior, Lester Lamon, Vice-Chancellor for Academic Affairs for the IUSB campus ("Lamon"). (Id. at 232.) At some point in the conversation, Caul indicated that this was not the first time that someone had complained about Cohen. (Id. at 238.) However, the Plaintiff decided to go to Lamon herself, which she did the same day. (Id.)

Lamon's first reaction upon hearing the Plaintiff's explanation of the November incident was to say "Oh no, not again," because it reminded him of a similar complaint that a female IUSB employee had made against Cohen in the fall of 1989. (Lamon dep. at 40-41.) Lamon then suggested that if the Plaintiff wanted to file a charge in the matter, she should meet with an affirmative action officer, but the Plaintiff hesitated, not feeling confident about speaking to "anybody on that campus who answered to Dan Cohen." (Plnf. dep. at 236.)

After a few days the Plaintiff spoke with Jack Tharp ("Tharp"), Vice Chancellor of Student Affairs at the Kokomo branch campus of Indiana University. (Id. at 238.) Tharp advised the Plaintiff to contact Shirley Boardman ("Boardman"), the University's Affirmative Action Director. (Id. at 242.) The Plaintiff unsuccessfully attempted to contact Boardman several times before finally speaking with her on March 5, 1998. (Id. at 243.)

Once notified of the Plaintiff's complaint, Boardman immediately launched an investigation, and told the Plaintiff the University was making the matter its "highest priority." (Id. at 494.) Boardman interviewed the Plaintiff, informed Cohen that the Plaintiff had brought a charge against him, and supervised the interviews of at least thirty witnesses. (Boardman dep. at 27, 37, 42.) Boardman ultimately recommended that University Counsel Dorothy Frapwell advise University President Myles Brand to take "quick, appropriate and definitive action" against Cohen. (Id. at 49.) Cohen ultimately entered into an agreement with the University in which he resigned as Chancellor of IUSB and took a one-year sabbatical, a result based, at least in part, upon the University's investigation of the November incident and the resulting report.⁵

The University never notified the Plaintiff of the results of Boardman's investigation, or of Cohen's resignation. (Plnf. dep. at 546, 549.)

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper ...