Frierson v. The Shaw Univ.

Decision Date19 May 2023
Docket Number5:21-CV45-D
PartiesKENNETH FRIERSON, Plaintiff, v. THE SHAW UNIVERSITY, Defendant.
CourtU.S. District Court — Eastern District of North Carolina
ORDER

JAMES C. DEVER, DISTRICT JUDGE

On February 1, 2021, Kenneth Frierson (“Frierson” or plaintiff) filed a complaint against The Shaw University (“Shaw” or defendant) alleging wrongful employment termination under Title IX of the Education Amendment Act of 1972, 20 U.S.C. § 1681(a) (Title DC') [D.E. 1]. On July 20, 2021, Frierson filed an amended complaint [D.E. 11]. On August 29,2022, Shaw moved for summary judgment [D.E. 26] and filed a memorandum in support [D.E. 27], exhibits [D.E. 28], and a statement of material facts [D.E. 29]. On August 30, 2022, Shaw filed an amended motion for summary judgment [D.E. 32]. On September 21,2022, Frierson responded [D.E. 36] and filed an opposing statement of material facts [D.E. 37]. On October 5, 2022 Shaw replied [D.E. 42]. The same day, Shaw responded to Frierson's opposing statement of material facts [D.E 43]. As explained below, the court grants Shaw's motion for summary judgment.

I.

This action stems from an internal Title IX investigation at Shaw into a student's allegation of sexual harassment against Frierson. See Am. Compl. [D.E. 11 ] ¶¶ 4-14; see also Def. SMF [D.E. 29] ¶¶ 3-4 17-19,23-39; Pl. SMF [D.E. 37] ¶¶ 1, 5. Shaw is a private university that receives federal funding. See Def. SMF ¶ 4; Pl. SMF ¶ 1. Frierson was the Director of Student Retention at Shaw University, an at-will employment position. See Def. SMF ¶¶ 17-19; Pl. SMF ¶ 1. Frierson worked in an office with other employees, as well as student interns. See Def. SMF ¶ 20; Pl. SMF ¶ 1. When Shaw hired Frierson in August 2017, Frierson signed an acknowledgment that he reviewed and understood the Employee Handbook and that he acknowledged and agreed to abide by Shaw's policies prohibiting harassment. See Def. SMF ¶ 21; Pl. SMF ¶ 1. Shaw's harassment policies and employee guides included a student relationship policy and an inappropriate conduct/behavior policy. See Def. SMF ¶¶ 5-16; Pl. SMF ¶ 1.

In August 2017, Frierson (then age 29 and unmarried) began working at Shaw as Director of Student Retention. See Frierson Dep. [D.E. 38-1] 13,50. A female student intern worked in the same office suite as Frierson. Id. at 50-51. The female student was not enrolled in any of the classes that Frierson taught. See Id. at 51-52. She did not report to Frierson as an intern but sometimes worked on issues concerning student retention. See id. at 56-58. Frierson communicated with the student in person, via email, on the telephone, and via text. See Id. at 59. In mid-December 2017, when the student intern left for winter break, Frierson texted the student intern to see if she had left for Los Angeles yet and later texted her to see if she arrived safely. See id. at 75-76. She did not respond. See Id. On January 15,2018, at 10:50 p.m., Frierson texted the student intern and asked, “Are you responding to me now? Okay.” Id. at 76. She did not respond. At 11:28 p.m., Frierson texted the student intern and wrote, “No? Cool.” Id. At 11:30 p.m., the student responded via text, “LMAOOO.” Id. at 77. To which Frierson asked if something was funny, and then he wrote, “See how you play.” Id. The student intern then wrote, “Sir, what do you want.” Id. Frierson responded, “Call me.” According to Frierson, he wanted to speak with the student intern about an event with students for MLK Day. Id.

On January 31, 2018, Frierson learned from Lee Wood (“Wood”), Shaw's Title IX coordinator, that a student intern who worked in the same office as Frierson had filed a sexual harassment complaint against him. See Def. SMF ¶¶24-25, 27, 34; Pl. SMF ¶¶ 3-5,9; Am. Compl. ¶ 10; cf. [D.E. 38-2] 88-95 (emails concerning the complaint of a female student to Shaw administrator Rishard Wedderhum about Frierson's behavior on January 29,2018, where Frierson called the student to his office at approximately 5:15 p.m. to express his feelings for the student). Wood identified the student, asked questions about Frierson and the student's relationship, notified Frierson that Shaw (through Wood) would investigate the alleged sexual harassment, and told Frierson to remain off campus during the investigation. See Def. SMF ¶¶ 34; Pl. SMF ¶ 9; Am. Compl. ¶¶ 10-11.

Shaw's investigation into the student's sexual harassment complaint against Frierson consisted of the student completing an intake form, the student meeting with Wood to review her complaint and to be interviewed, Wood interviewing the student's roommate, and Wood interviewing Frierson. See Def. SMF ¶¶ 28-35; Pl. SMF ¶¶ 5-9. During Frierson's interview, Wood did not tell Frierson the student's specific allegations beyond stating that a female student stated that Frierson was “bothering her.” See Def. SMF ¶ 34; Pl. SMF ¶ 9; Am. Compl. ¶ 10; Frierson Deci. [D.E. 41] ¶ 5. Frierson denied having any physical contact with the student, but did admit speaking with her in person, on the phone, and via text messages. See [D.E. 36] 4.

As part of the investigation, Wood collected evidence, including text messages that Frierson sent to the student and to the student's room mate. See [D.E. 28-4]. The student alleged that Frierson harassed her on multiple occasions, indicated that he wanted to have a relationship with her, and that Frierson used sexual innuendo. See Def. SMF ¶¶ 25, 30, 32; see also [D.E. 28-4]. The student also alleged that Frierson called her between 8:00 p.m. and 9:00 p.m. just to talk, texted her after work hours, and once touched her without her consent in his office. See [D.E. 28-4] 3, 14. The text messages included some sent on a Sunday evening telling the student to “stop playing with me” and to “tell [her roommate] to come to class.” Id. at 14. The student's allegations were supported by her call logs, screen shots of her text messages, and an interview of her roommate, a friend whom the student repeatedly told about Frierson's alleged harassment. See id. at 2-18. The student was not one of Frierson's students, did not report to Frierson, was a senior, was doing well academically, and was not at risk for leaving Shaw early. See Def. SMF ¶¶ 23-24; Pl. SMF ¶ 3. Frierson had no professional need to contact the student because she was not his student and she did not report to him. See Def. SMF ¶¶ 23-24; Pl. SMF ¶ 3.

On February 1, 2018, Wood completed the Title IX investigation and prepared a detailed report. See [D.E. 28-4] 1-18. Wood forwarded the report to Dr. Pamela Denning (Shaw's Associate Vice President of Academic Affairs) and Dr. Renata Dusenbury (Shaw's Vice President of Academic Affairs). See Def. SMF ¶¶ 17,35; [D.E. 34-1] 2. On that same day, Dr. Dusenbury forwarded the report to Shaw's President, Dr. Paulette R. Dillard, for her review and decision. See Def. SMF ¶ 36. Dr. Dusenbury and Dr. Denning recommended terminating Frierson's employment See id. Dr. Dillard received the recommendation, authorized terminating Frierson's employment, and authorized giving Frierson the option to resign in lieu of termination. Id.

On February 1, 2018, around 5:00 p.m., Wood notified Frierson that Shaw had completed its investigation into the student's allegations. See Def. SMF ¶¶ 35-36; Pl. SMF ¶ 10. On February 2, 2018, Frierson met with Wood and Dr. Denning, Frierson's supervisor. See Def. SMF ¶ 37; Pl. SMF ¶ 10. Wood and Dr. Denning notified Frierson that the investigation concluded with a recommendation that Shaw terminate Frierson's employment. See Def. SMF ¶¶ 37-39; Pl. SMF ¶ 10. Wood and Dr. Denning presented Frierson with a resignation letter, which he refused to sign. See Def. SMF ¶¶ 37-39; Pl. SMF ¶ 10. Therefore, Shaw terminated Frierson's employment See Def. SMF ¶¶ 37-39; Pl. SMF ¶ 10.

On July 31,2018, Frierson filed a complaint under Title DC with the Office for Civil Rights (“OCR”) in the United States Department of Education. See Def. SMF ¶ 40; Pl. SMF ¶ 11. On July 30, 2019, the OCR investigation found that Shaw failed to comply with Title IX by failing to provide Frierson with specific notice of the allegations against him, failing to give Frierson a reasonable opportunity to respond to the allegations, and failing to give Frierson an opportunity to confront or question the student or respond to the student's specific allegations against him. See Def. SMF ¶ 41; Pl. SMF ¶ 11.

On July 25, 2019, in response to the OCR investigation, Shaw entered into an OCR Resolution Agreement and agreed to appoint an impartial investigator to reinvestigate the student's allegations. See Def. SMF ¶ 42; Pl. SMF ¶ 11. On October 12,2019, as part of the reinvestigation, Shaw emailed Frierson and asked him for an interview. See [D.E. 34-1] 23. On October 16, 2019, Frierson declined to be interviewed, and he did not otherwise provide any additional information during the investigation. Id. On October 18 and 19, 2019, Shaw again contacted Frierson about its interview request, but Frierson did not respond. Id. at 23 n.l.

On January 17, 2020, the OCR issued its Monitoring Closure Letter to Shaw. See Def. SMF ¶ 43; Pl. SMF ¶ 11. In the letter, the OCR noted that Shaw agreed to comply with the Resolution Agreement by appointing an impartial investigator to reinvestigate the student's allegations. See [D.E. 34-1] 22-24; Def. SMF ¶ 43; Pl. SMF ¶ 11. The OCR letter also noted Frierson's failure to participate in the reinvestigation. See [D.E. 34-1] 23; see also Def. SMF ¶ 43; Pl. SMF ¶ 11. The reinvestigation did not alter the conclusions of the first investigation, and the OCR found that Shaw fulfilled its requirements under the OCR Resolution Agreement. See [D.E. 34-1] 23.

II

Summary judgment is appropriate when, after reviewing the...

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