Trustees of Indiana University v. Cohen

Decision Date30 July 2009
Docket NumberNo. 20A03-0812-CV-590.,20A03-0812-CV-590.
PartiesTHE TRUSTEES OF INDIANA UNIVERSITY, Appellant-Defendant, v. H. Daniel COHEN, Appellee-Plaintiff.
CourtIndiana Appellate Court

Paul H. Sinclair, Paul C. Sweeney, Brian J. Paul, Ice Miller, LLP, Indianapolis, IN, Attorneys for Appellant.

Jay Meisenhelder, Ryan P. Sink, Haskin, Lauter, & LaRue, LLP, Indianapolis, IN, Attorneys for Appellee.


BROWN, Judge.

In this interlocutory appeal, the Trustees of Indiana University (the "University") appeal the trial court's denial of its motion for summary judgment regarding a complaint filed by H. Daniel Cohen. The University raises several issues, which we revise and restate as whether the trial court erred when it denied the University's motion for summary judgment. We reverse.

The relevant facts designated by the parties follow. The University hired Cohen in 1987 to serve as a professor of physics with tenure and as Chancellor of the University's campus in South Bend, Indiana ("IUSB"). A female employee of the University accused Cohen of forcibly kissing and groping her breasts during a private meeting in Cohen's office in November of 1994. As a result of the sexual harassment allegations against him, Cohen agreed to resign his position as Chancellor of IUSB and the University agreed that Cohen would continue to be a professor of physics.

The University and Cohen entered into a letter agreement (the "Agreement") dated May 2, 1995. The Agreement provided that Cohen would resign as Chancellor of IUSB, effective as of May 10, 1995, and that Cohen would receive a one-year sabbatical from July of 1995 until June of 1996. Paragraph 3 of the Agreement stated:

3. If Dr. Cohen returns to the University following his sabbatical, he will be a Professor of Physics, with tenure with the rights and responsibilities attendant to that position. His salary will be ten-twelfths (10/12) of his current salary until he reaches age sixty five. As any other faculty member, Dr. Cohen will be eligible to receive yearly salary increments. In the event Dr. Cohen accepts employment elsewhere prior to age sixty-five, the University's obligations under this paragraph shall cease.

Appellant's Appendix at 456. Paragraph 10 of the Agreement provided:

10. Any future proven act of sexual harassment or retaliation by Dr. Cohen that occurs from the date of this agreement forth in the course of Dr. Cohen's employment will be considered serious personal misconduct and will result in immediate steps to dismiss Dr. Cohen from the faculty. A memorandum to that effect shall be kept in Dr. Cohen's file and in the files of Indiana University Counsel.

Id. at 459.1

In December 1999, J.G., a female student who was enrolled in one of Cohen's classes, filed a complaint with the University's Affirmative Action Office at IUSB (the "AAO") alleging that Cohen had discriminated against her based on gender, religion, sexual harassment, and retaliation. The AAO investigated J.G.'s allegations by interviewing several faculty members and twelve students who had been in Cohen's class with J.G. In November 2000, the AAO sent its written report to IUSB Chancellor Ken Perrin. The AAO report stated:

While neither religious nor sexual harassment occurred in the classroom, students did complain, and the evidence supports the fact that Cohen was authoritarian, condescending, and demeaning in his responses to some students. Cohen admits that he swore in class, made religious references to himself and others that were not relevant to the subject of the class, and would come back at students who challenged his authority. Such comments raise potential questions of professional conduct under the . . . Code of Academic Ethics as adopted by Indiana University especially as it relates to fostering "an atmosphere of mutual trust and respect" in the classroom.

* * * * * *

It is recommended that the Chancellor meet with the Dean of Liberal Arts and Sciences and the Chair of the Physics Department to take whatever steps are necessary to remedy and monitor Cohen's relations with students to ensure proper respect for all students.

Id. at 972.

In June 2000, ten students from one of Cohen's summer session classes wrote a letter to Chancellor Perrin. In the letter, the students complained that Cohen "behaved inappropriately for his position," that Cohen "was constantly cursing and did so directly to students in a small group during an oral exam," that he "consistently ridiculed his students for their lack of knowledge about the subjects he was supposed to be teaching," and that "his demeanor discourages questions and intimidates his students." Id. at 979-981.

On January 3, 2001, Chancellor Perrin wrote a letter to Cohen addressing Cohen's conduct. Perrin noted in his letter that the AAO raised questions of potential violations of the University's Code of Academic Ethics and that he had interviewed six of the ten students who sent a letter to him regarding Cohen's conduct. Perrin's letter stated: "It is evident, in spite of your statements to the contrary, that your behavior in the classroom is offensive to many students. . . . The behavior displayed in your [physical science] classes is in conflict with these core principles of academic ethics, and unacceptable on a student-centered campus." Id. at 958.2

On March 8, 2001, the South Bend Tribune published a letter to the editor written by Cohen in response to an article critical of Cohen written by Nancy Sulok, a columnist for the Tribune. The last paragraph of Cohen's published letter to the editor read:

By the way, have you ever noticed that almost all the women who claim to have been sexually harassed are physically ugly? I guess they just need to deny their lack of attractiveness to the opposite sex, and to use this method to get the attention and money they cannot otherwise command.

Id. at 960.

That same day, Cohen was walking to his office when he walked by a room where J.G. was taking a make-up examination in connection with a math class, which was not taught by Cohen. In his deposition, Cohen testified that he made eye contact with J.G., and when asked how long he maintained eye contact with her, Cohen replied: "Order of five seconds." Id. at 859. J.G. was "visibly very distraught" and "clearly and visibly shaken" by the encounter with Cohen. Id. at 975. J.G. filed a complaint with the AAO describing Cohen's actions and alleging retaliation. On March 23, 2001, Cohen filed a complaint of his own with the AAO in which he stated that he did not stand in the doorway and did not "make any comment to [J.G.] or to anyone else at that time." Id. at 976. Cohen's complaint then argued that J.G.'s allegations constituted retaliation for the grade she had received in Cohen's course and that J.G. filed her complaint against Cohen in response to seeing his article in the Tribune. In March 2001, Chancellor Perrin sent a letter to Cohen suspending him with pay until the completion of the AAO's investigation. Chancellor Perrin stated in his letter: "As you know, retaliation against a person for making a good faith complaint violates the law and university policy." Id. at 989.

The AAO undertook a second investigation of Cohen in response to J.G.'s second complaint. On April 17, 2001, the AAO made a determination that J.G.'s account of the incident between J.G. and Cohen on March 8, 2001, was credible. The AAO's investigation included reviewing J.G.'s and Cohen's complaints and interviewing twelve witnesses, including students and professors. The AAO's report noted that the time and location of J.G.'s make-up exam were determined by her math instructor and the math department's secretary (and the exam had been planned before the Tribune article was published). Furthermore, the math instructor indicated that J.G. "was a good student doing B work in the math class all semester long." Id. at 938. J.G. "had done A work on the exam in question, until the last page, where there were many mistakes. J.G. had completed all but the last page of the exam before Cohen interrupted her." Id. Noting Cohen's submissions to the South Bend Tribune, the AAO's report found: "Cohens's [sic] behavior follows a pattern of harassment and denial. . . . This denial goes beyond defending himself. It is personal, confrontational, and antagonistic toward women who complain about sexual harassment." Id. at 939. The AAO also noted that Cohen "forwarded a copy of [J.G.'s] complaint to the press in violation of FERPA [Family Educational Rights and Privacy Act] law and IU policy. This breach of confidentiality went beyond defending himself." Id. at 940-941. The AAO's report concluded:

We find that Professor Cohen has violated the Indiana University policy on sexual harassment by creating a hostile intimidating learning environment for women. We also find that he violated the sexual harassment policy by retaliating against [J.G.]. . . . He retaliated against [J.G.] even though the evidence in the original complaint was insufficient to sanction him . . . . and we find that Cohen targets women in his derisive and menacing behavior. . . .

Id. at 941. On April 24, 2001, Cohen submitted a memo to Chancellor Perrin in response to the AAO report arguing that the report lacked credibility and was full of bias.

At the request of Chancellor Perrin, the Academic Senate Promotion, Tenure, and Reappointment Committee met and reviewed the AAO's report from April 17, 2001, and Cohen's written response to the AAO's report, and the Committee recommended "that proceedings of dismissal of Dr. Cohen be initiated." Id. at 948. On May 3, 2001, Chancellor Perrin sent a letter to Cohen notifying Cohen that he was being dismissed from the faculty of the University, effective May 13, 2001, on the grounds that Cohen "engaged in serious personal misconduct" and because he "violated the University's Code of Academic Ethics." Id. at 1072-1073. Chancellor Perrin's letter also stated that...

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