Soloski v. Adams
| Decision Date | 02 March 2009 |
| Docket Number | Civil Action No. 1:06-CV-3043-MHS. |
| Parties | John SOLOSKI, Plaintiff, v. Michael ADAMS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
D. Brandon Hornsby, Office of Brandon Hornsby, Atlanta, GA, for Plaintiff.
Bryan K. Webb, Law Offices of Bryan K. Webb, P.C., Athens, GA, Annette Marie Cowart, Office of State Attorney General, Atlanta, GA, for Defendants.
The matter before the Court is the Magistrate Judge's Report & Recommendation (R & R) and plaintiff's and defendants' objections to the R & R.
The Court adopts the following undisputed facts as stated in the R & R:
This case arises out of allegations that Plaintiff made comments to a female subordinate that she considered to constitute sexual harassment. While Plaintiff acknowledges having made the alleged comments, he contends that they did not violate the University's Nondiscrimination and Anti-Harassment (NDAH) Policy and that he should not have been forced to resign from his deanship and formally sanctioned as a result of those comments.
Plaintiff is a current tenured professor at, and former Dean of, the University of Georgia's Grady College of Journalism and Mass Communications. Plaintiff was hired by the University of Georgia ("UGA" or "the University") to serve as the Dean of Grady College in the Spring of 2001. During the time period, Defendant Michael F. Adams was the President of UGA. Arnett Mace was the Senior Vice President for Academic Affairs and Provost at UGA....
On May 18, 2005, Janet Jones Kendall ("Kendall"), an employee of Grady College in external affairs, presented Plaintiff with a letter complaining that he had made two comments which she contended (1) were offensive to her and (2) created a hostile work environment. Upon receiving the letter, Plaintiff immediately forwarded it to the UGA Office of Legal Affairs ("OLA"), which then began an investigation of Kendall's allegations .... The allegations mentioned in Kendall's letter became the sole basis for an eventual finding by the OLA that Plaintiff violated UGA's NDAH Policy. The two comments were made, respectively, seven months and one month before Kendall wrote the letter complaining about them, but shortly after her supervisor had complained of Kendall's work. There is no evidence that Kendall objected to the comments or asked Plaintiff to refrain from such comments prior to writing. There is no evidence of other comments made by Plaintiff to Kendall that she thought constituted acts of sexual harassment during the four years they worked together.
Plaintiff admits making the comments referenced in Kendall's letter, but claims that they were not intended to be sexual in nature. The first comment was made on October 14, 2004, at an off-campus University dinner function. Plaintiff stated to Kendall: (The Court will refer to this as [the] "eyes" comment.) Plaintiff explained to Washington during the investigation that he made the "eyes" comment in the context of a discussion about his recent Lasik eye surgery, and did not intend it to be a sexual advance.
The second comment was made six months later at a large, off-campus event in Atlanta, the "Capital Campaign Kickoff," on April 14, 2005. Plaintiff said to Kendall: (The Court will refer to this as the "assets" comment.) Plaintiff contends that he did not mean the "assets" comment in a sexual way. Just before making the comment, Plaintiff had been talking about assets disputed in his pending divorce.
From May 18, 2005 to June 29, 2005, the UGA OLA conducted a sexual harassment investigation into the allegations made by Kendall against Plaintiff. The complaint was assigned for investigation to Kimberly Ballard-Washington ("Washington"), the former Associate Director for the UGA OLA.... Washington made the finding that Plaintiff violated the NDAH policy by committing sexual harassment as defined by the policy.
The parties have included facts in their filings regarding several other incidents that Washington uncovered in her investigation, even though as noted above, the finding of a violation of the NDAH policy relied only on the "eyes" and "assets" comments. First, it was alleged that Plaintiff made comments to others about Kendall being pictured in a magazine published in Athens, "Athens Magazine," and that Plaintiff had a copy of the magazine in his office. In the magazine, Kendall wore only a bathing suit. She was working for the UGA College of Journalism at the time she posed for the magazine. Second, Washington was informed that Plaintiff requested that Kendall hand out awards at the Peabody Awards event, an annual function of the Grady School of Journalism. Kendall told Washington that she believed the request that she present the awards was based on her appearance, and that she had refused to do as requested. Third, Kendall told Washington that she had been told that, at a Christmas party, Plaintiff said to a group that, "if [Kendall] was here, all this food would be gone." According to Kendall, as reported by her to Washington, she had also been told that Plaintiff went on to say, "I don't know how she does that [eat so much] and keep that figure or keep that body or something of that nature, she must purge."
On May 12, 2005, six days before she gave Plaintiff the letter containing her sexual harassment complaint, Kendall was reprimanded by her supervisor, Sherrie Whaley, for sending inappropriate emails to various people outside of the University and for her tone in dealing with Plaintiff and Whaley .... It was Washington's perception that prior to Kendall's making her complaint, Kendall and other employees in her department had become frustrated because supervision of them had recently increased. According to Whaley, Kendall had a "poor attitude" and was "not doing her job" around the time she made the complaint against Plaintiff. One employee interviewed by Washington, Sandy Mayfield, stated to Washington that Kendall had a "pattern" of filing complaints against employers in response to supervision ....
According to Plaintiff, on June 16, 2005, Washington told him in a telephone conversation that "they were going to find him in violation of the sexual harassment policy." Plaintiff assumed that Washington was referring to Mace and Adams .... Plaintiff claims that this telephone conversation was the first time he had any indication that he would not be exonerated of the charges of sexual harassment.
Also on June 16, 2005, Plaintiff received a call from Kelly Simmons, a reporter for the Atlanta Journal Constitution ("AJC"). Plaintiff contends that Simmons had "a considerable amount of the details" regarding the investigation. On June 17, 2005, during the time that the UGA OLA was still investigating the sexual harassment complaint against Plaintiff, the AJC ran an article that revealed that UGA was investigating Plaintiff for sexual harassment. The article quoted Mace as confirming the existence of the investigation. According to Washington, UGA's NDAH policy requires that a sexual harassment allegation remain confidential until an official finding is made, and that information about an investigation not be released to the press until ten days after the official finding. It is undisputed that information about the sexual harassment complaint against Plaintiff was leaked to the press before that time, but the source of the information is unknown.
After hearing from Washington and AJC Reporter Kelly Simmons, Plaintiff contacted Mace via email; in that email, he asked whether Mace wanted him to resign his position as Dean.... Plaintiff contends that this email was not an offer to resign, but a means for Plaintiff to try to determine how serious Mace considered the situation. At 11:36 p.m. on June 16, 2005 ... Plaintiff received a voicemail message from Mace, telling Plaintiff that Adams doubted his effectiveness as a dean. Plaintiff called Mace the next morning, June 17, 2005, at which time Mace told Plaintiff that he had to consider the option of resigning.
Washington was in contact with Provost Mace and President Adams during the course of the investigation. Mace's involvement with the OLA investigation began within a few days following the opening of the investigation, and he was updated on the facts of the investigation when he called Washington. While Plaintiff infers that this contact was improper, he asked Mace to find out what was happening. Further, Defendants contend that this communication conformed with common practice, because Mace served as Plaintiff's immediate supervisor. The NDAH Policy, in fact, requires the NDAH Officer to "keep the supervisor/administrator informed of the status of the complaint and [to] seek input from the appropriate supervisor/administrator when implementing corrective action." The NDAH Officer is the Executive Director of the OLA, Mr. Stephen Shewmaker, and/or his designee. In this case, Washington was his designee.
Nevertheless, Mace acknowledged that the Provost is not to have any role in the investigation of a potential violation of the NDAH policy; rather, the Provost's role is to act upon findings made by the OLA. Mace testified that expressing his opinion to the UGA OLA could compromise a sexual harassment investigation, and that if he were to make a statement to the UGA OLA about what should occur in such an investigation, it would put the OLA in a...
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