Haegert v. Univ. of Evansville

• Court: Indiana Supreme Court
• Writing for the Court: DAVID
• Citation: Haegert v. Univ. of Evansville, 977 N.E.2d 924 (Ind. 2012)
• Decision Date: 13 November 2012
• Docket Number: No. 82S01–1204–PL–235.,82S01–1204–PL–235.
• Parties: John HAEGERT, Appellant (Plaintiff below), v. UNIVERSITY OF EVANSVILLE, Appellee (Defendant below).

977 N.E.2d 924

286 Ed. Law Rep. 660

34 IER Cases 1165

John HAEGERT, Appellant (Plaintiff below),

v.UNIVERSITY OF EVANSVILLE, Appellee (Defendant below).

No. 82S01–1204–PL–235.

Supreme Court of Indiana.

Nov. 13, 2012.

Darlene Robinson, Oakland City, IN, Attorney for Appellant.

Kenneth J. Yerkes, Paul L. Jefferson, Hannesson I. Murphy, Indianapolis, IN, Attorneys for Appellee.

William M. Waltz, Indianapolis, IN, Attorney for Amicus Curiae, Indiana Chamber of Commerce, Inc.

Bryan H. Babb, Gregory W. Guevara, Indianapolis, IN, Attorneys for Amicus Curiae, Indiana Legal Foundation, Inc.

Anthony C. Maidenberg, Indianapolis, IN, Attorney for Amicus Curiae, Independent Colleges of Indiana, Inc.

On Petition to Transfer from the Indiana Court of Appeals, No. 82A01–1008–PL–369

DAVID, Justice.

An encounter between a tenured professor at a private university and his department head turned into a formal complaint of harassment against the professor. After extensive internal proceedings, the professor's tenure was rescinded and he was dismissed from the university's faculty. He filed suit claiming breach of his employment contract and tenure agreement, and the trial court granted summary judgment in favor of the university. We affirm.

I. Facts and Procedural History

John Haegert joined the University of Evansville's faculty in 1979 and received his tenure in 1982 as a professor in the English Department. Margaret McMullan, a creative writing professor, chaired the English Department from 2000 to 2005.¹ On August 25, 2004, McMullan was in the English Department lounge interviewing a prospective student and her parents. Haegert walked into the lounge accompanied by a female student, said “Hi, Sweetie” to McMullan, walked up to her—standing with his belt buckle at her eye-level, about a foot from her face—and stroked his fingers under her chin and along her neck.

As will be explained in greater detail below, this encounter triggered a formal complaint by McMullan against Haegert through the University's disciplinary review process. The outcome of that process was Haegert's dismissal from the University, two lawsuits, and this appeal.

A. Haegert's Employment Contract

The terms of Haegert's appointment were, like all other tenured professors, governed by a yearly tenure contract with the University. Haegert's tenure contract for the 2004–2005 academic year, executed on March 30, 2004, incorporated by reference the University's Faculty and Administrator Manual (“Faculty Manual”), containing various University policies, terms, and conditions. The Faculty Manual also incorporated a number of national academic standards drafted by the American Association of University Professors and others (collectively, the “AAUP Guidelines”).

Under his contract, Haegert agreed “to perform the duties in accordance with standards of performance established by the University and to abide by and to fulfill all duties, responsibilities, and obligations imposed by the Board's governing rules or by the University.” (App. at 448.) Failure to do so would be considered “cause for the University to terminate the appointment.” (App. at 448.) Of particular importance to this case are several provisions within the Faculty Manual expressing the University's policy (and corresponding disciplinary procedures) with respect to harassment and sexual harassment.

Harassment is defined by the Faculty Manual as “verbal or physical conduct which has the intent or effect of unreasonably interfering with the individual's or group's education and/or work performance, or creating an intimidating, hostile, or offensive educational and work environment on or off campus.” (Supp. App. at 127.) The Faculty Manual's definition of sexual harassment is a variation of that used by the Federal Equal Employment Opportunity Commission (EEOC) and incorporates two forms of sexual harassment: quid pro quo and hostile environment.² In the latter regard, sexual harassment is defined as:

[A]ny unwelcome sexual advance, request for sexual favors, reference to gender or sexual orientation, or other verbal or physical conduct of a sexual nature when:

* * * 2. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or educational experience, creating an intimidating, hostile, or offensive working or academic environment and when this conduct has no germane or legitimate relationship to the subject matter of a course.

(Supp. App. at 129.) In short, a “[h]ostile environment occurs when unwelcome sexual conduct from any employee, student, or faculty member interferes with job or academic performance or creates an intimidating, hostile or offensive work or learning environment.” (Supp. App. at 129.) Examples of sexual harassment identified in the Faculty Manual include:

• Physical assault

• Unwelcome sexual advances, including unwanted touching, flirting, fondling, hugging, patting, pinching, or leering

• Verbal abuse or degrading propositions of a sexual nature including sexually-oriented jokes, kidding or teasing

• A sexually suggestive environment that interferes with the accomplishment of studies or work

(Supp. App. at 130.) Despite the more detailed definition of sexual harassment and particular examples provided, allegations of both harassment and sexual harassment are investigated and adjudicated using the same procedures outlined in the Faculty Manual.

These procedures begin with a recommendation to pursue informal resolution of the complaint; ideally with direct communication between the complainant and the alleged harasser. This is to avoid formal intervention on matters that may arise from mere misunderstanding, ignorance, or misinterpretation. However, “[a] complainant is not required to seek informal resolution to complaints prior to seeking a formal resolution.” (Supp. App. at 131.)

A person seeking to file a formal complaint of harassment must do so within 180 days of the most recent alleged conduct. Such a complainant is advised to consult the University's Affirmative Action Officer (AAO) ³ or a policy coordinator ⁴ and discuss what happened, whether investigation is warranted, and the complaint procedure. If the complainant elects to proceed, a formal complaint is filed by providing the AAO or policy coordinator with a signed, written complaint containing the allegations and requesting an investigation.

When the alleged harasser (now the respondent) is a faculty member, the AAO is to convene a review committee to investigate the complaint, chaired by the AAO and including the faculty ombudsperson, a representative of the appropriate staff or administrator group, and a policy coordinator. The committee is charged with investigating the complaint to determine (1) whether the conduct occurred as alleged; and (2) whether that conduct constitutes harassment.

The Review Committee has thirty days to complete its investigation and review, after which the AAO provides the President of the University with a written recommendation that either there is, or is not, sufficient evidence supporting the alleged violation.⁵ These findings and recommendation shall also be sent to the complainant and respondent. If the alleged conduct is found to have occurred and constitute harassment, the AAO “will impose formal sanctions in accordance with University policy.” (Supp. App. at 135.) These may include, without limitation, a formal warning, suspension, or termination. “Every precaution will be taken to ensure that the harassment is stopped immediately.” (Supp. App. at 135.)

Faculty members have a right to an appeals process by way of a written appeal to the Faculty Appeals Committee (FAC).⁶ The FAC will go over the Review Committee's proceedings, call witnesses (if necessary) to provide further information, and make a written recommendation to the AAO and President as to its findings within thirty days. Whether an appeal is sought or not, the President's decision will be communicated, in writing, to both the complainant and respondent.

The Faculty Manual also provides an additional procedure specifically for when dismissal of a tenured faculty member is considered. In such cases, the Faculty Professional Affairs Committee (FPAC) ⁷ will conduct an “informal inquiry” into the matter and “determine whether in its opinion dismissal proceedings should be undertaken, without its opinion being binding upon the President.” (Supp. App. at 165.) Any dismissal following this inquiry is preceded by a statement of reasons, and appeal may be had to the FAC. “The President, however, will normally not reach a decision until the Vice President for Academic Affairs and the Faculty Appeals Committee have made their recommendations.” (Supp. App. at 165.)

As a final resort, the faculty member can submit a request to the University's Board of Trustees, asking for its consideration. The Board of Trustees studies “all pertinent information” and decides whether to uphold or reverse the appeal. (Supp. App. at 166.)

B. McMullan's “Anecdotal File”

Haegert's August 25, 2004, encounter with McMullan was not the first instance in which his conduct had been complained of, investigated, or addressed—and for similar circumstances. In early 2002, both McMullan and the University's AAO, Jennifer Graban, received independent informal complaints from several female students expressing concern about Haegert's behavior towards women. ⁸ These complaints all followed the same themes: derogatory comments about women, explicit commentary, and inappropriate touching. The complainants particularly referenced his use of words like “Sweetie,” “Honey,” “Babe,” and “Hon”; called his language “crude and scary”; and said they felt uncomfortable when Haegert would hug them or other female students. (App. at 353, 354, 357, 364, 366–68.)

Graban asked McMullan to meet with Haegert concerning his behavior, and McMullan did so. During this meeting, McMullan advised Haegert that several students had...