Hartman v. Keri
| Decision Date | 27 December 2006 |
| Docket Number | No. 02A03-0603-CV-135.,02A03-0603-CV-135. |
| Citation | 858 N.E.2d 1017 |
| Parties | Virginia HARTMAN and Suzanne Swinehart, Appellants-Defendants, v. Dr. Gabe KERI, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Karen R. Orr, Stuart & Branigin LLP, Lafayette, IN, Attorney for Appellants.
Swaray E. Conteh, The Law Office of Swaray Conteh, LLC, Indianapolis, IN, Attorney for Appellee.
Suzanne Swinehart and Virginia Hartman bring this interlocutory appeal following the trial court's denial of their motion for summary judgment. We address a single dispositive issue on review, namely, whether communications made in the course of official proceedings brought under the antiharassment policies of The Trustees of Purdue University ("Purdue") are protected by an absolute privilege.
We reverse.
In August of 2000, Dr. Gabe Keri became an Assistant Professor of Education in the School of Education at Indiana University-Purdue University at Fort Wayne ("IPFW"). IPFW is jointly owned by The Trustees of Indiana University and Purdue, but is managed by Purdue pursuant to an agreement between the two universities. Keri worked under one-year, renewable contracts that made him eligible for tenure after seven years. However, on April 3, 2003, Dr. Utesch, Keri's supervisor, notified Keri that his employment contract would not be renewed for the 2004-2005 academic year due to unsatisfactory performance.
Swinehart and Hartman had enrolled as graduate students in the School of Education at IPFW in 2000 and 2001, respectively. Swinehart and Hartman both had been employed as Graduate Aides in Education at IPFW. As graduate students at IPFW, Swinehart and Hartman were good friends and worked together. Hartman's worst grade as a graduate student was a "B," which she received in a class taught by Keri in the summer of 2002. Hartman contested that grade to a review committee in a nine-page document, but subsequently abandoned her appeal.
On May 12, 2003, just over a month after Keri received his notice of nonrenewal, Swinehart and Hartman each filed formal complaints ("the Purdue complaints") with IPFW's Affirmative Action Office alleging harassment by Keri. Hartman's complaint also alleged that Keri discriminated and retaliated against her. Among Hartman's assertions was an allegation that Keri retaliated against her by "affecting my grade point average." Appellants' App. at 111. Swinehart claimed that Keri had made inappropriate sexual comments to her personally and to her class between July 2001 and the spring of 2002.
The Purdue complaints were filed pursuant to Purdue's policy for addressing "harassment in the workplace or the educational environment." Id. at 346. That policy is contained in Executive Memorandum No. C-33 ("C-33") and is implemented by Purdue's Procedures for Resolving Complaints of Discrimination and Harassment ("Procedures"). Both documents apply to IPFW. C-33 states that it "seeks to encourage faculty, staff, and students to report and address incidents of harassment." Id. at 348. C-33 defines harassment to include the creation of a hostile educational environment. Further, C-33 provides:
This policy shall not be used to bring knowingly false or malicious charges against any faculty, staff, students, or recognized student organizations . . . . Disciplinary action will be taken against any person or group found to have brought a charge of harassment in bad faith, or any person who, in bad faith, is found to have encouraged another person or group to bring such a charge.
The Procedures stipulate, among other things, that "[t]he proceedings under these Procedures are not those of a court of law, and the presence of legal counsel for the parties is not permitted during the conduct of these Procedures." Id. at 353. The Procedures require that "a Formal Complaint must be filed . . . within ten days of the conclusion of the Informal Process or 120 days following the incident of discrimination and/or harassment." Id. at 355. Here, the Procedures required the initiation of a proceeding ("the antiharassment proceeding") to investigate the merits of the Purdue complaints. As a first step, the Chancellor of IPFW assigned Dr. Elaine Blakemore, Chair of the Department of Psychology at IPFW, to investigate. Blakemore concluded that Keri had created a hostile educational environment for both Swinehart and Hartman and had harassed Hartman.
Following the expiration of his final contract with IPFW, on June 10, 2004, Keri brought a federal lawsuit ("the federal complaint") in the Northern District of Indiana against IPFW and five "DOE" defendants.1 The federal complaint was based on various federal laws, most notably Title VII of the Civil Rights Act of 1964 ("Title VII"), and related state laws under the Indiana Tort Claims Act ("ITCA"), namely, intentional and negligent infliction of emotional distress, negligent supervision, and wrongful termination. Keri alleged, under Title VII, that Dr. Utesch, Swinehart, and Hartman "conspired to smear [Keri's] reputation by making false and unfounded allegations of sexual harassment and ineffective teaching methodologies." Id. at 169-70.
On November 9, 2005, the federal district court granted complete summary judgment in favor of Purdue based on Keri's inability to establish the requisite prima facie cases. In the "Material Facts" section of its opinion, the district court discussed Keri's performance, the Purdue complaints, and the antiharassment proceeding. The court stated, in relevant part:
(c) [Keri's] Third Evaluation and Academic Year 2002-2003 Performance
* * * [S]tudent complaints against [Keri] continued during the 2002-2003 academic year. In March 2003, [Swinehart,] a graduate student employee at IPFW, approached Dr. Utesch and reported that [Keri] had made inappropriate comments to her during her interview for a clinic manager's position. She reported that, in the summer of 2001, [Keri] had told her that she should wear tighter pants and that she did not have big enough "boobs" because she was white. Also in March 2003, a second graduate student employee, [Hartman], reported to Dr. Utesch that during his classes [Keri] bashed homosexuals and Catholics. Dr. Utesch believed [Hartman] because her complaints were consistent with those from other students in other classes taught by [Keri]. . . .
(d) [Keri's] Final Evaluation and Non-reappointment
From November 2001 through March 2003, Dr. Utesch received six student complaints about [Keri]. Two of them were anonymous. All of them accused [Keri] of inappropriate behavior. On the basis of these complaints, and especially on the basis of [Swinehart] and [Hartman's] complaints, Dr. Utesch decided not to recommend [Keri] for reappointment for the 2004-2005 academic year. On March 31, 2003, he wrote concerning [Keri's] conduct:
On-going student complaints have become more serious over the past year. I have had several meetings with [Keri] to attempt to resolve concerns about his teaching effectiveness and his professionalism. There appear to be no changes.
Students continue to be subjected to discussion of inappropriate topics irrelevant to the content of the course within the classroom. He has criticized other faculty and students in public settings. His lectures are often unorganized and ineffective. He has consistently failed to fulfill his responsibilities for supervising students in the clinic setting. The School of Education's protocol for the formal evaluation of faculty by students has been violated because [Keri] did not leave the room while students were completing evaluations. Female students report inappropriate comments about their appearance. The trust and respect of students has been diminished by misuse of power. I conclude that his teaching performance is unsatisfactory.
* * *
(e) IPFW's Investigation of Formal Complaints Against [Keri]
On May 12, 2003, [Swinehart] and [Hartman] each filed a formal complaint against [Keri], claiming that he harassed and discriminated against them in both the classroom and in their work as graduate assistants. Elaine Blakemore was assigned by Chancellor Wartell to investigate the complaints in accordance with IPFW's procedures. She interviewed the complainants and [Keri], as well as Dr. Utesch and two other faculty members in the Department of Education Studies. She also interviewed thirteen current and former students from the Counselor Education program representing four different academic cohorts. Blakemore issued a detailed report with extensive findings on both students' complaints. In the report she acknowledged that, because of the gravity of [the] allegations, the investigation was difficult for her personally. She noted that, during the investigation, [Keri] was cordial and professional, and that he was bewildered by the charges. She also stated that she found both complainants credible and genuinely anguished about their experiences. Blakemore commended [Swinehart] and [Hartman] for their courage to come forward with their complaints:
Finally, I would like to express my utmost respect toward [Swinehart] and [Hartman] for their courage coming forward with their complaints. I spoke to several other students who believed that they had been harmed by [Keri], but were afraid to speak, lest their future careers be harmed. I spoke to former students who said that they had wanted to report their concerns about his behavior once they left the university, but they never had, and that they felt distressed and guilty that they had not. Hence the university should applaud those who are willing to come forward with a serious complaint at possible risk to themselves, particularly when they are taking the risk partly for the good of others.
Blakemore interviewed numerous students and asked them general questions about the School of Education and [Keri]....
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Hartman v. Keri
...reversed the trial court, holding that Hartman's and Swinehart's statements were protected by an absolute privilege. Hartman v. Keri, 858 N.E.2d 1017, 1020 (Ind.Ct.App.2006), reh'g denied. We granted transfer to address this issue of first impression in Indiana. Hartman v. Keri, 869 N.E.2d ......
- Hartman v. Keri