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EMPLOYER LIABILITY - #MeToo at UNE: Faculty member’s Title VII claim to be heard by jury

by Sara A. Rapport

Dr. L. C. is a faculty member at the University of New England (UNE). In a lawsuit brought in federal court, she alleged that her transfer to a new department reduced her teaching and career opportunities in violation of Title VII of the Civil Rights Act of 1964 and the Maine Human Rights Act (MHRA) even though she consented to the transfer. The case is a painful reminder of the importance of investigating claims of sexual harassment promptly and thoroughly, and fixing the problem if the investigation discloses that the allegations have merit. The #MeToo movement and cases like this one should spur employers to take corrective action, even if that means taking action against important employees.

Yes, that’s sexual harassment

Dr. C. began working at UNE in the Exercise and Sports Performance Department (ESP) in 2009. She was a tenure-track assistant professor and taught exercise physiology and applied exercise nutrition, among other courses. In 2012, she developed and began teaching an environmental physiology course.

In the fall of 2012, Dr. P. V. joined UNE as the ESP chair and became Dr. C’s direct supervisor. Throughout the first month of his employment, he engaged in inappropriate conduct toward her, touching her knee, thigh, and hand during office conversations, and making sexually charged comments to her in e-mails and in person.

Dr. C was fearful of reporting the sexual harassment because Dr. V. evaluated her performance for tenure and merit raises. Eventually, however, she complained to the dean, who asked that she meet with the director of HR.  Dr. C. brought copies of the e-mails to the meeting, and the HR director acknowledged that Dr. V’s communications amounted to sexual harassment.

In a subsequent meeting with Dr. C, the dean and the HR director agreed that Dr. V’s behavior constituted sexual harassment. Strangely, they didn’t approach Dr. V to take disciplinary action but instead recommended that Dr. C. meet with him.  She declined.

The HR director pressed Dr. C to reconsider.  Believing that she had no choice, Dr. C met with Dr. V with the HR director present.  The HR director observed that since Dr. V would remain her chair (and thus her supervisor), “We’ve got to figure out a way to make this work.”

It gets worse

Dr. V did remain Dr. C’s direct supervisor and the chair of her tenure committee, and in June 2013, her fears became reality: Dr. V wrote a negative performance evaluation and submitted it to the dean’s assistant without giving Dr. C the opportunity to submit a rebuttal, as was protocol. Dr. V. also falsely claimed in the cover letter he submitted with the evaluation that Dr. C had failed to sign and return her evaluation.

Fortunately, the tenure committee determined that Dr. C’s performance “far exceeded” Dr. V’s evaluation.  Dr. C requested that UNE remove Dr. V as the chair overseeing her application for tenure.  UNE agreed, but Dr. V. remained her supervisor.

In September 2013, before a tenure decision was made, Dr. C reported that Dr. V came up behind her in the parking lot while she was speaking with a student and “rubbed [her] shoulder and upper back in an [unwelcome] manner.” The HR director investigated.

A student who witnessed the interaction endorsed Dr. C.’s version of the incident, adding that Dr. V. had a “reputation among students of being creepy around women.” The HR director also interviewed a subordinate of Dr. V. who was also present. The subordinate was “not paying close attention” and “did not recall” any touching. Based on those reports, the HR director concluded that no sexual harassment had occurred.

A new dean replaced the dean who had concluded in 2012 that Dr. V had engaged in sexual harassing behavior toward Dr. C.  The new dean stated that she had no knowledge of Dr. C.’s complaints about Dr. V. from September 2012 and September 2013 or that UNE had concluded that Dr. V.’s conduct in 2012 was sexual harassment.

And then it gets even worse

In the fall of 2013, Dr. V. took two actions against Dr. C. that undermined her professionally.  First, he caused her to be removed as the head of UNE’s College Bowl team.  Dr. C had not only founded the team when she began working at UNE in 2009, but she had led it with success.  Dr. V contrived a justification for the decision to remove her that later proved to be false.  Second, he changed the process for admission of nonmajors to her courses, which resulted in a number of students being denied enrollment.

In January 2014, after enduring about one and a half years of harassment by Dr. V., Dr. C. sought a new supervisor. The dean refused and instead suggested that she leave ESP and move to another department. Although Dr. C. didn’t want to transfer, she believed that was the only way she would be free of Dr. V.  She agreed to the transfer on the condition that she would keep her classes and be afforded the opportunity to continue to do her job.  The dean told her that she was looking into transferring her to the College of Arts and Sciences.  She was eventually transferred to the Biology Department.

Dr. V. continued to sabotage Dr. C.  In the spring of 2013, he removed the dedicated laboratory time allotted for one of her classes.  Again, he contrived an explanation, which the dean endorsed.  In the fall of 2014, Dr. V.’s subordinate requested that Dr. C. perform different labs, which she couldn’t do with the necessary equipment.  As a result, she was unable to accommodate the request.

In the spring of 2015, the dean removed Dr. C. from teaching upper-level classes, including the class in environmental physiology she had developed and implemented years before. In making that move, the dean was adopting Dr. V.’s recommendation.  The dean didn’t inform Dr. C. of the changes and instead allowed her to learn of them by reading the published course catalog, which listed the instructors for both courses as “TBD.”

The dean directed Dr. C. to teach two general education courses that fall. Dr. C. believed both classes were more aptly characterized as “remedial.”  Part of the dean’s justification was that she needed to “create some distance” between Dr. V. and Dr. C.  When Dr. C. objected that the dean’s justification didn’t explain why she couldn’t continue to teach the two upper-level classes, the dean announced that she wasn’t “full-time” in Dr. V.’s department.

Later in the year, Dr. C. approached the dean again, requesting that the two upper-level classes, including environmental physiology, be cross-listed with the Biology Department so she could teach them.  Dr. V. convinced the dean to reject her request, and he taught the environmental physiology class instead.  A new visiting professor taught the other upper-level class.

Was transfer voluntary?

In July 2014, the dean removed Dr. C. as an adviser to students in her former department, and Dr. V. had her profile removed from ESP’s website.  External funders had used the website to identify and make contact with Dr. C.  Once she was stripped of her involvement with the department, however, that access ended.

Dr. C. became a member of UNE’s Department of Physical Therapy (PT) in July 2016. She has no expertise in PT, which precludes her from teaching courses on the subject. She also lacks a license in PT, which prevents her from fully participating in her new department.

Dr. C. filed a lawsuit alleging that her transfer was retaliatory in violation of Title VII and the MHRA.  The trial court found that because she admitted her transfer was voluntary, it couldn’t amount to the “adverse employment action” necessary to support a retaliation claim.

And then it gets (a little) better

Enter the U.S. Court of Appeals for the 1st Circuit—which hears appeals from the federal trial courts in Maine (where Dr. C.’s case began), Massachusetts, Puerto Rico, and Rhode Island.  The 1st Circuit rejected the trial court’s conclusion that there was no adverse action because Dr. C. “consented” to the transfer.

First, the court noted that the parties agreed that Dr. C had engaged in protected activity by reporting Dr. V.’s alleged harassment to UNE in 2012. Second, the court held that Dr. C.’s transfer to a new department led to a change in her teaching assignments, her removal from the ESP website, and her removal as an adviser to students in her former department. Those changes could lead a jury to find that the “disparity in duties” before and after the transfer made it an adverse employment action.

Third, the 1st Circuit rejected the argument that because Dr. C. had consented to the transfer, it couldn’t be an adverse action. The court noted that Dr. C. had argued that the dean promised the transfer wouldn’t diminish her professional responsibilities—specifically, her ability to teach the two upper-level courses that were eventually taken from her. According to Dr. C., the dean broke her promise, not only by stripping her of the two courses (one of which she had developed) but also by assigning her remedial-level courses that carried less responsibility and importance than the upper-level courses.

The court concluded that a jury could find that the dean had induced Dr. C. to relinquish her position in the department where she was best suited to teach through false representations and that Dr. C. would have rejected the transfer but for the dean’s misrepresentations. A jury could also find that none of the events would have occurred but for Dr. C.’s reporting of Dr. V.’s harassment. The 1st Circuit therefore rejected the trial court’s dismissal of the case and returned it for trial at which a jury can parse the facts.

Takeaway

This case is a good example of what you should never do. Upon finding that a supervisor has engaged in sexual harassment toward a subordinate, you shouldn’t task the subordinate with the responsibility of “resolving the problem,” on the assumption that the harasser cannot be adversely affected. Regardless of however important and powerful he is, a harasser must be held accountable.

Here, UNE found that Dr. V. was harassing Dr. C. in the fall of 2012. That’s when the university should have either (1) promptly disciplined him in a way that made it clear he had committed an offense that he could not repeat upon pain of termination or (2) fired him outright.  If it chose to continue his employment, UNE should have identified a new supervisor for Dr. C.  Instead, it enabled him to continue the behavior that, according to students, made them feel he was “creepy.”

Moreover, when Dr. V.’s offensive and unlawful behavior continued, UNE continued to make Dr. C. responsible for resolving the problem, initially by endorsing the microaggressions (or macroaggressions) he perpetrated to undermine her and eventually by removing her from the position in which her talent and skills could flourish. When she cried foul, UNE resorted to claiming that her transfer was “voluntary.” The 1st Circuit found that the university’s so-called defense of consent rang hollow.

Employers are responsible for holding harassers, not victims, accountable. The days of Harvey Weinstein are over.

To discuss this case or your own with Sara, you can reach her directly at srapport@whelancorrente.com or 401-270-0180.

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