Schrader v. Emporia State Univ.
| Decision Date | 21 September 2021 |
| Docket Number | 19-2387-DDC-TJJ |
| Parties | BRIAN W. SCHRADER, Plaintiff, v. EMPORIA STATE UNIVERSITY, RAY LAUBER, DAVID CORDLE, LISA MORITZ, MAX McCOY, and ALLISON GARRETT, Defendants. |
| Court | U.S. District Court — District of Kansas |
This action is the latest entry in a developing genre of cases where a male respondent accused of sexual harassment in a university Title IX proceeding later files a lawsuit for alleged sex discrimination and gender bias in the proceedings against him. The usual case is a male college student suing his former university for expelling him. But this isn't the usual case.
Plaintiff Brian W. Schrader was a professor of psychology at defendant Emporia State University (ESU) for more than 20 years. In 2017, a student in one of his classes filed a sexual harassment complaint against him, triggering a Title IX investigation and, eventually, termination proceedings. After hearing all the evidence from ESU and plaintiff in the Title IX proceeding, a committee of tenured faculty decided that ESU shouldn't terminate plaintiff. But ESU sanctioned him anyway, limiting his ability to interact with students and placing an automatic suspension on his employment should another student file a harassment complaint. And amidst a campus furor about plaintiff remaining an ESU professor-including several public statements from ESU President Allison Garrett about the investigation and the larger culture of sexual harassment on college campuses-that is exactly what happened: another student filed another harassment complaint and ESU immediately placed plaintiff on administrative leave. He eventually resigned while the investigation was pending.
Plaintiff brings this lawsuit alleging several claims against ESU Garrett, and several of ESU's current and former employees involved in the Title IX investigation. He brings claims against ESU for discrimination and a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, for discrimination and retaliation under Title IX of the Educational Amendments Act of 1972, 20 U.S.C. § 1681(a), and for violations of Kansas state law. He also brings claims under 42 U.S.C. § 1983 against Garrett and several other ESU administrators and employees in their individual capacities for alleged procedural due process violations and for impugning his reputation (i.e. a “stigma-plus” liberty interest claim).
Before the court are each defendant's individual Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) (Docs. 89, 91, 93, 95 97, 99) and supporting briefs (Docs. 90, 92, 94, 96, 98 100). Plaintiff has filed responses to each motion (Docs 108, 109, 110, 111, 112, 113). And all the defendants, except ESU, have filed replies (Docs. 120, 121, 122, 123, 124). Also before the court is plaintiff's Motion to Certify Questions of Law to the Kansas Supreme Court (Doc. 125). As explained below, the court denies plaintiff's motion, grants the individual employees' Motions to Dismiss and thus dismisses them from this suit, and finally, grants in part and denies in part defendant ESU's Motion to Dismiss. So, this case will proceed on the surviving claims.
The following facts are taken from the allegations in plaintiff's Third Amended Complaint (Doc. 83) and viewed in the light most favorable to him. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) ; see also Cid v. Bd. of Cnty. Comm'rs, No. 18-4012-DDC-KGS, 2019 WL 161495, at *5 (D. Kan. Jan. 9, 2019) .
Plaintiff started working at ESU in 1996 in the psychology department and eventually became a tenured professor. Doc. 83 at 3 (Third Am. Compl. ¶¶ 14-15). In his 21 years at ESU, he had an unblemished disciplinary record. Id. ).
In the spring 2017 semester, “J.J.” was a student in one of plaintiff's classes. Id. ). Toward the end of the semester, plaintiff met with J.J. to talk about her poor performance on an exam. Id. ). The meeting was unremarkable, but later that day, plaintiff asked J.J. to meet with him again because he discovered that J.J. had cheated on a homework assignment, which was academic misconduct. Id. ). This was not the first time J.J. had cheated on an assignment, so she faced possible expulsion from ESU. Id. ). When plaintiff met with J.J. the second time, she didn't deny plaintiff's allegation of cheating and began to cry. Id. at 4 ). Plaintiff then handed J.J. a tissue, when their “fingers briefly and lightly touched.” Id. ). According to plaintiff, J.J.'s demeanor changed abruptly when she learned of the potential consequences of her academic misconduct and then left the meeting clearly upset. Id. ).
The next day, J.J., who is from South Korea, spoke with the Office of International Education about her meeting with plaintiff. Id. ). A week later, she filed a formal sexual harassment complaint against plaintiff. Id. ). Both plaintiff and J.J. signed non-retaliation and confidentiality agreements about the complaint. Id. ).
That summer, defendant Lisa Moritz, ESU's Title IX investigator at the time, then investigated and prepared a report about J.J.'s complaint. Id. at 5 ). Plaintiff alleges that Moritz's report was “filled with at least twenty inaccuracies, inconsistencies and omissions and included Moritz'[s] own theories that are unsupported by facts or reasonable inferences about what occurred.” Id. ). As examples, plaintiff alleges that “Moritz did not interview J.J.'s boyfriend even though J.J. met with him after meeting with [plaintiff].” Id. ). Nor did Moritz prepare a timeline of events and actions, which, plaintiff claims, “would have shown it to have been very unlikely if not impossible for [him] to have committed any act of sexual harassment given that he was scheduled to make a presentation to a group across campus less than fifteen minutes before the end of his meeting with J.J.” Id. ). And rather than use a disinterested interpreter for her interview with J.J., who was not fluent in English, Moritz relied instead on J.J.'s roommate to translate. Id. ). Moritz's report conceded that this was “not standard practice.” Id. at 6 ).
Moritz's report included her credibility determinations of plaintiff and J.J.: she described J.J. as “honest and genuine, ” but described plaintiff as “somewhat cautious and restrained, ” “overly tidy, ” and “lacking the specific detail and emotion” she expected. Id. at 7 ). The report also recounted a campus police officer's impression of plaintiff as having a “creepy aura about him” without further explanation. Id. at 6 ). Moritz's report concluded that plaintiff had proposed a “quid pro quo” to J.J., where he would not report J.J.'s conduct in exchange for a sexual favor. Id. ). From this, Moritz's report concluded that it was more likely than not that plaintiff violated ESU's policy on sexual harassment. Id. at 7 ).
Moritz then submitted her report to defendant Ray Lauber, ESU's Human Resources Director. Id. at 5 ). Lauber evaluated Moritz's report under a “preponderance of the evidence” standard, following a 2011 “Dear Colleague Letter” from the U.S. Department of Education, Office of Civil Rights. Id. at 7 ). Under that standard, Lauber concluded plaintiff had committed sexual harassment toward J.J. Id. at 8 (Third Am. Compl. ¶ 56). He then submitted that conclusion and a summary of Moritz's report to defendant David Cordle, ESU's Provost. Id. at 7-8 (Third Am. Compl. ¶¶ 51-52, 61). Although the Department of Education later withdrew the 2011 “Dear Colleague Letter” and replaced it with a different letter recommending a “clear and convincing evidence standard, ” in the fall of 2017, neither Lauber nor any other administrator amended the report's conclusion that plaintiff had violated the university's harassment policy under the preponderance of the evidence standard. Id. at 8 ).
In late 2017, Cordle commenced formal termination procedures against plaintiff. Id. at 8 ). After hearing evidence from ESU and plaintiff, both of whom were represented by counsel in a closed hearing, a committee of tenured faculty at ESU determined unanimously-under a clear and convincing evidence standard-that plaintiff did not commit sexual harassment towards J.J. and that ESU shouldn't terminate his employment. Id. at 8-9 (Third Am. Compl. ¶ 63); Doc. 100-1 at 11-12 (Ex. E).[1] But on December 6, 2017, defendant Allison Garrett, the president of ESU, imposed sanctions against plaintiff. Id. at 3-6 (Ex. B). In a letter to plaintiff, Garrett explained:
In a situation such as this where there are no direct witnesses and where both Complainant and Respondent have given compelling interviews regarding what occurred, I find that although the Complainant's case has not been proven by clear and convicting evidence, the report does justify certain precautionary measures.
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