Lipian v. Univ. of Mich.

Decision Date09 April 2020
Docket NumberCase No. 18-13321
Citation453 F.Supp.3d 937
Parties Andrew LIPIAN, Plaintiff, v. UNIVERSITY OF MICHIGAN, et al., Defendants.
CourtU.S. District Court — Eastern District of Michigan

Elizabeth Ann Marzotto Taylor, Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

Jessica B. Pask, Gregory M. Krause, Brian M. Schwartz, Muhammad Misbah Shahid, Miller, Canfield, Paddock and Stone PLC, Detroit, MI, for Defendants.


Arthur J. Tarnow, Senior United States District Judge

Plaintiff, Andrew Lipian, is a former vocal student at the University of Michigan School of Music, Theatre and Dance ("SMTD"). Plaintiff alleges that a professor at SMTD, David Daniels, sexually harassed him throughout his training, and, in March 2017, sexually assaulted him. He argues that the University ignored repeated warnings that Daniels was sexually aggressive towards students, took complaints of sexual harassment and assault against male students less seriously than those against female students, and ultimately retaliated against him for filing suit.

Defendants have moved to dismiss the case under Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure. Their motions will be granted as to Counts II-VIII of the Third Amended Complaint but denied as to Count I.


The Factual Background will cite to both the Third Amended Complaint ("TAC"), for purposes of the motion to dismiss, and the factual record, for purposes of the motion for summary judgment.

Lipian, Daniels, and the University of Michigan

David Daniels and Andrew Lipian are both countertenor vocalists. They met in October of 2012, when Daniels taught a master class at University of Michigan ("UM") at which Lipian was a student. (Lipian Dep., July 2, 2019, pg. 43, PageId. 5863).

Former defendant, David Daniels, age 52, was hired to teach at the University's SMTD (his alma mater) in fall of 2015. (TAC ¶ 18; Dkt. 203-16; PageId. 6180). Daniels had been a professional opera singer and recording artist for two decades, but he had no teaching experience. He was promoted on the University's website for his operatic achievements. It noted, for instance, that Daniels was the first countertenor to give a solo recital in the main auditorium of Carnegie Hall.1 (TAC ¶ 21). He was also given an expedited path to tenure, and, in his offer of employment on April 9, 2015, he was informed that his tenure review would be conducted in 2017-2018. (Dkt. 203-16, PageId.6180). The Executive Committee of the SMTD "enthusiastically recommend[ed]" his faculty appointment, effective September 1, 2015, noting that he has sung at the best opera houses of the world and been deemed the "most acclaimed countertenor of the day, perhaps the best ever," by the New York Times and "today's gold standard among countertenors" by the Chicago Tribune. (Dkt. 203-17, PageId.6183).

Lipian had graduated from Oberlin College in Ohio in May 2012 with a Bachelor of Arts in philosophy. (Deposition of Andrew Lipian, Dkt. 230-17; pg. 35-36, PageId.5862). Lipian attended the Oberlin Conservatory as a countertenor—indeed the first countertenor ever admitted to the Oberlin conservatory—but due to military and familial obligations, he opted not to finish his vocal major. (Id. ). He worked in the "nonprofit theater industry" between his Oberlin graduation and his 2015 University of Michigan matriculation. (Id. at 37; PageId.5863).

After their October 2012 master class, Daniels and Lipian stayed in touch. (Lipian 44; PageId. 5864). On January 29, 2015, Lipian wrote a message to Daniels congratulating him on his appointment to U of M and telling him that he would make a "brilliant professor." (Lipian 97; PageId. 5878). Lipian also promised that "The minute you get to Ann Arbor, I will come bearing scotch." (Lipian 98; PageId. 5878).

Lipian applied to SMTD, because it was close to his home in Ohio and also a very good music school. (Lipian 99-100; PageId. 5878). He also applied, because Daniels was "regarded as the Luciano Pavarotti of countertenors" and "his presence in the University was a draw for young singers, because he is a very big name in the opera industry." (Lipian 55; PageId. 5867).

Lipian was initially denied admittance to SMTD, because he had to first complete the undergraduate requirements for his vocal degree, which he began, but did not finish, at Oberlin. U of M eventually determined that Lipian could enroll as an undergraduate for a year and then join the SMTD as a graduate student. (Lipian 100-101). During his audition, at which Daniels was present, Lipian stayed overnight with Daniels and his husband. (Lipian 50). On April 28, 2016, Lipian wrote to Daniels that he was eager to work with him, and they discussed registration for Daniels's voice lesson. (Dkt. 203-13; PageId.6039-6043).

Addressing that many of text messages between him and Daniels could fairly be read as friendly or even sexual banter, Lipian has emphasized that he had no choice but to go along with Daniels's banter, lest his reputation be tarnished and his career sabotaged. He feared that because the world of classical vocalists was so small and personal, Daniels could easily retaliate against him by blackballing him. When asked, for instance, about his July 29, 2015 text message looking forward to more "purple thong sessions" with Daniels, Lipian explained that he had no choice but to play along with, and even escalate, Daniels's jokes.

I didn't want to anger him by not responding in kind using the same terminology he would use. Even then I recognize his power in the industry. So I played along. (Lipian 95-96; PageId. 5877).

Lipian joined the SMTD graduate program in fall of 2016, intending to become a professional countertenor. (TAC ¶ 17). In addition to attending Daniels's class, Plaintiff took private lessons with Daniels once per week. (TAC ¶ 24). Daniels held himself as a mentor and promised career assistance and professional connections. (TAC ¶ 28).

The Individual Defendants

Plaintiff names 11 defendants in his Third Amended Complaint. The first is the University of Michigan. (TAC ¶ 3). The other ten are University employees and Plaintiff's allegations of their roles at U of M are as follows. Jeffrey Frumkin was the Associate Vice Provost of Faculty and Academic Affairs and Interim Senior Director of the Office of Institutional Equity ("OIE"). (TAC ¶¶ 4, 70). Elizabeth Seney was an OIE investigator. (TAC ¶¶ 5, 65). Pamela Heatlie was the Title IX Director. (TAC ¶¶ 6). Martha Pollack is alleged only to have been an individual employed by U of M from May 2013 through September 2017. (TAC ¶ 9). Stephen West was the Chair of the Voice Department at SMTD. (TAC ¶ 10). Melody Racine, Aaron Dworkin, and Christopher Kendall were all deans or interim deans of the School of Music, Theater & Dance. (TAC ¶¶ 7, 11, 13). Martin Philbert was the Provost of the University of Michigan (TAC ¶ 8). Mark Schlissel is the President of the University of Michigan. (TAC ¶ 12).

Defendants’ Knowledge of Daniels's Behavior

Plaintiff's Third Amended Complaint provides some detail regarding Daniels's reputation at U of M. One faculty member told West before Daniels's hire, "they're hiring David Daniels, and someone needs to be sure that he's not going to be engaging with young students." (¶ 35; Deposition of Matthew Thompson, Dkt. 230-23, pg. 64; PageId.8740). Though West reportedly asked whether he or Racine should speak to Daniels, Racine denied any knowledge of this exchange. (Deposition of Melody Racine, Dkt. 203-20, pg. 206). The TAC also alleges that it was common knowledge at SMTD that Daniels was outwardly sexual and that many members of the voice department had concerns about Daniels being sexually forward at the SMTD. (TAC ¶¶ 31-32).

These allegations are partially borne out by the record. Eugene Rogers, ombudsperson and Director of Choirs, knew Daniels from when he and Daniels husband, Scott Walters, were both graduate school students at U of M, in 2011. (Deposition of Eugene Rogers; Dkt. 230-21, pg. 5; PageId. 8530). Rogers testified that he was aware of rumors that Daniels was "very outwardly sexual." (Rogers 16; PageId. 8532). Lipian testifies that the classical vocalist world was small, that Daniels was a well-known philanderer, and that there is no way that the other SMTD professors, who were also in this world, did not know about his "proclivities." (Lipian 137-138; PageId. 5888). Dean of SMTD Melanie Racine testified, "I don't recall anyone coming to me saying – he told me "[Daniels] was sexually explicit." " (Racine 172; PageId. 5973). Upon being asked how it could be that 20 students had firsthand knowledge of Daniels's sexually inappropriate communications, but nobody in the faculty or administration had knowledge of Daniels's sexual inappropriateness, Racine answered that in order for the faculty to know something was wrong, the students would have to tell them. (Racine 185-186; PageId. 5975).

During the course of his time at SMTD, Lipian took studio lessons with Daniels, who was the only countertenor instructor. Racine described studio work as an hour lesson per week with an instructor and then a studio class where the students all meet, sing in front of each other, and critique each other's singing in front of the professor. (Racine 117, PageId. 5970). Students typically stay with the same voice instructor for the whole two-year program, but if they wish to change, the SMTD makes that available. (Racine 122, PageId. 5971). Daniels was the only countertenor instructor at U of M. (Id. ). Lipian testified that he would have liked to branch out and maybe take tenor lessons with another instructor, but he was turned down, and he believes he was turned down, because the other professor...

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