On appeal, university professor alleging due process violation sees hopes vanish
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Wednesday, September 16, 2020

On appeal, university professor alleging due process violation sees hopes vanish

By Brandi O. Brown, J.D.

Even though the court concluded that the professor’s due process rights were violated, it found that the university officials had qualified immunity.

After a federal district court denied its motion for summary judgment in a lawsuit brought by a discharged professor, the defendants, officials of a public university in Texas, found success on appeal to the Fifth Circuit, which ruled that they were entitled to qualified immunity. Although the appeals court concluded that the professor’s due process rights had been violated when the decision-making committee failed to question, or allow him to question, his accuser, that right was not clear at the time. The district court’s order denying summary judgment was reversed and judgment was rendered for the defendants (Walsh v. Hodge, September 15, 2020, Davis, W.).

Accused of sexual harassment by student. In 2014, a medical school professor at the University of North Texas Health Science Center attended a medical conference that changed his life, though not for the better. He attended with two fellow faculty members, as well as two medical students. A night of drinking and dancing resulted in one of the students filing a Title VII complaint against him with the university. The university hired an attorney to investigate. The attorney interviewed the student, the employee, and their fellow attendees regarding what had occurred. According to the employee, what occurred that evening was merely mutual flirtation, which the student had engaged in without apparent unease. The other two faculty members also claimed to have witnessed nothing inappropriate, although one did concede that the student had asked him to walk to her room and had been worried that the employee would be waiting for her at her door. The second student in attendance, however, noted that the accuser looked "uncomfortable" that evening.

Student not made to testify or answer questions. The attorney concluded that the student’s allegation was substantiated and the Dean recommended the employee’s termination. The employee appealed the decision to the University’s Faculty Grievance and Appeal Committee, which consisted of eight voting members and a Chair. The employee sought to circulate photos that he believed constituted evidence that his flirtation was welcomed by the student, but the Chair determined they were not relevant. The employee was not represented by counsel at the hearing. Although the investigating attorney testified to the Committee and answered its questions about her findings, the student was not called upon to testify to the Committee and the employee had no opportunity to cross-examine her. His attempts to bring up the photos were also refused. The Committee recommended he be fired. The Provost agreed and the employee’s subsequent appeals failed to alter the decision.

Summary judgment denied, employer appeals. The employee filed a section 1983 suit against the University and its faculty members/administrators, alleging violation of due process. The University officials moved for summary judgment, which was denied. They appealed. On appeal, the Fifth Circuit considered, first, whether the employee had a meaningful opportunity to be heard and whether the University’s tribunal had been impartial. The court answered the impartiality question in the affirmative. Although one of the Committee members had served as the student’s preceptor and spent time with her each week in various clinics and therefore knew her, the court found that insufficient to establish a due process claim of bias.

He was denied due process. However, to the extent that the employee contended he had been denied due process because he had not been afforded the right to confront and cross-examine his accuser, the court considered the claim under the Mathews v. Eldridge sliding scale. The first factor in that scale—the employee’s private interest—was significant, the court agreed, because termination not only affected his immediate employment interest, but it also impacted future employment opportunities in the academic field. The third factor—the University’s interest—was also significant. It included an interest in preserving its resources to serve its primary function of education, protecting vulnerable witnesses, and providing a safe environment.

Credibility requires questioning. The second Mathews factor went in favor of the employee—under it the court considered the risk of erroneously depriving the employee of an important interest by not having the student testify before the Committee. The risk was particularly great given that the hearing "boiled down to an issue of credibility." It was important, the court concluded, for the Committee to hear from the student and for the employee to have some sort of opportunity to test her credibility, although the court recognized that safeguards were a consideration. The method the employer used as a substitute for her testimony, testimony snippets relayed through the investigator, however, were "too filtered." The court noted that this case involved a graduate student who was probably in her mid-twenties, so requiring some type of questioning wouldn’t necessarily impose an unreasonable burden that might deter her or other similar victims of sexual harassment from coming forward.

However, the court was not convinced that cross-examination by the accused party personally was necessary. Instead, the Committee or its representative should have questioned her, after which the employee should have been allowed to submit questions for the Committee to ask the student. The court noted that its position on the opportunity for real-time cross-examination in the university disciplinary setting is in agreement with that taken by the First Circuit.

Still immune because not established. Nevertheless, the Court reversed the lower court’s decision denying the summary judgment motion because the employer was entitled to immunity. The right the court identified in this opinion had not been clearly established at the time of the employer’s actions. None of the Fifth Circuit case law spoke directly to the procedures that were necessary to protect a public employee’s interest in this scenario nor had it before held explicitly that "in university disciplinary hearings where the outcome depends on credibility, the Due Process Clause demands the opportunity to confront witnesses or some reasonable alternative." It noted that its sister circuits were split on the issue as well and that the right was generally in flux. Thus, the defendants were entitled to qualified immunity and judgment was rendered in their favor.

The case is No. 19-10785.

Attorneys: Julie Ellen Heath (Farrow-Gillespie & Heath, L.L.P.) for Ralph Clay Walsh, Jr. Lanora Christine Pettit, Office of the Attorney General, for Lisa Hodge, John Schetz, Lisa Killam-Worrall and Jessica Hartos.

Cases: PublicEmployees IndividualRights Discharge SexualHarassment CoverageLiability GCNNews LouisianaNews MississippiNews TexasNews

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