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You Can't Say That

June 10, 2013

A Pennsylvania appeals court ruled Friday that Slippery Rock University was within its rights to dismiss a professor who had sexual discussions with students on a spring break he was leading.

The faculty union at Slippery Rock had challenged the dismissal and won an arbitrator's order that the professor have his job restored. But the appeals court reversed that decision. By a 2-1 vote, the appeals court rejected the union's procedural objections to the dismissal, as well as the professor's claim that the discussions were "trash talk," not harassment.

The case concerns the conduct of Robert Ammon Jr., who at the time of his dismissal was a tenured full professor and chair of the sports management department at Slippery Rock. In 2010, he led 19 students on a spring break trip to Spain. A student complained about a night Ammon accompanied students to a bar, asked each student how many sexual partners they had had, and said that he had had 100 partners, five of them after he was married. Also that night, a student asked Ammon to name his favorite student, and he reportedly said that one of the female students in the group would be his favorite "if she sucked his dick."

Ammon, the court's decision notes, did not dispute any of the student's account. While he admitted that his comments were unprofessional, he said that was so because he was intoxicated, and characterized his comments as "trash talk," not harassment. The student who complained thought otherwise. Further, in 2006, the university had reprimanded Ammon for sexually harassing a student, and he had agreed to resign if such conduct were repeated in the future. With one student and her mother threatening to go to the administration, Ammon reported the incident himself (although the student then followed).

In July 2010, the university dismissed Ammon for "unprofessional conduct" -- for being intoxicated with students and for "making inappropriate sexual comments to and about students."

The Association of Pennsylvania State College and University Faculty, the union, challenged the dismissal. The union argued that Ammon had never received a formal statement of a complaint, as required by the contract, and that various communications he did receive from administrators did not constitute that first formal notification. The university noted in its defense that Ammon is the one who reported the complaint first, but the arbitrator found this "unpersuasive." The university appealed, arguing both that the arbitrator's ruling was incorrect, and that Slippery Rock has a legal obligation to act against sexual harassment.

The appeals court rejected the arbitrator's finding that Ammon didn't get notification of the charges against him. The court also ruled that the case involved serious obligations of Slippery Rock to protect its students. Title IX of the Education Amendments of 1972, the decision said, requires Slippery Rock to prevent where possible, and deal with, sexual harassment of students.

"The public places its confidence and trust in Commonwealth educators, and an educator violates this trust when he engages in discriminatory behavior with students who are placed in his care. The Commonwealth and United States have a long-standing and well-defined public policy against sexual discrimination, and [Ammon]s conduct clearly implicates and violates this public policy," the decision said. Restoring him to his job, as the arbitrator ordered, "poses a substantial risk of undermining this public policy."

The decision also noted that Ammon's role as a professor and department chair "places him in a position of repeated exposure to female students, and he continued his inappropriate behavior after he was disciplined in 2006 for similar conduct, which indicates a substantial risk that female students will be subjected to similar action in the future. The implications of allowing public university employees to violate not only the trust of the students and employers, but also the general public, contravene long-standing public policy. To deny the university the ability to appropriately discipline [Ammon] for his conduct would place the university in violation of Title IX."

The dissent in the case did not focus on the Title IX issues, but said that the arbitrator's concerns about the lack of formal notification of the complaint were legitimate due to the lack of clarifying language in the contract about what constitutes such notification.

The president of the union said via e-mail that it would not be possible for him or for Ammon to react to the court's decision over the weekend.

 

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