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An ex-professor’s claim that he was unfairly caught up in the Me Too movement and dismissed from the University of the Arts without a hearing -- after the university ignored his own sexual harassment claim -- just cleared a major legal hurdle. A federal judge in Pennsylvania ruled that photographer Harris Fogel’s "erroneous outcome" case under Title IX of the Education Amendments of 1972, which prohibits gender-based discrimination, may proceed.
The judge also said Fogel could proceed with a defamation claim against his faculty accuser, who allegedly talked about him negatively to colleagues at a conference, and with a related invasion of privacy claim.
The judge dismissed Fogel’s defamation claim about comments that accuser made to a Title IX coordinator, however, calling such statements “absolutely privileged.”
Fogel still has a long way to go before he wins his case, if he does at all. But the claims against him and his counterclaims show just how complicated sexual harassment cases can be.
“‘Me too’ today reaches into a university's firing of one of its tenured professors based on sexual harassment claims against him,” reads a lengthy memo accompanying the order in favor of Fogel, written by Judge Mark A. Kearney. “A university subject to federal civil rights law must ensure its investigation into the sexual harassment claims is free of gender bias.”
Digging deeper into Fogel’s case against his former institution, Kearney wrote that “this obligation becomes more acute when we learn: during the challenged investigation, the university ignored the same male professor's claims of sexual harassment by his female supervisor at a 2015 conference; and, the university dean repeatedly expressed a personal dislike of the male professor.”
Making clear that he was not weighing in on Fogel’s alleged conduct, but rather his right to move forward with pretrial discovery, Kearney added, “An investigation into sexual harassment must apply uniform standards regardless of the complainant's and accused's sex.”
A Kiss and a Key Card
Fogel’s lawsuit alleges that a female professor of photography at the University of the Pacific, Jennifer Little, wrote to his institution’s Title IX coordinator in late 2017, alleging that Fogel had greeted her by kissing her without her consent in early 2016, in a Las Vegas hotel lobby during the annual meeting of the Society for Photographic Education.
Just a day after that professor contacted Fogel’s institution, he says, another female photographer wrote to the same Title IX coordinator to complain that Fogel handed her his hotel room key card instead of a business card after reviewing her portfolio at a March 2016 photography conference in Houston.
Fogel says the card incident was an accident and that both he and the photographer originally laughed. Similarly, he says that he considered the first accuser a friend and that kisses on the cheek are a common way to greet friends and colleagues in his circle. He believes that his two female accusers knew each other and conspired against him to make Title IX complaints at the same time.
The University of the Arts, in Philadelphia, began investigating Fogel immediately. Among other alleged investigative failures, he says the university didn’t interview a sufficient number of witnesses and didn’t obtain emails between his two accusers to document their alleged “collusion.”
Fogel also says that his university accepted what he calls an unreliable explanation for why the University of the Pacific professor waited 21 months to report the kiss: because she "tolerated" it in exchange for his “support and professional advice.”
During the investigation, Fogel allegedly challenged the female Title IX coordinator’s reliance on what he called "gender-based stereotypical accusations," such as one accuser’s comment that Fogel engaged in “typical male verbal flirting behavior.” But the coordinator did not address his concerns, he says.
Fogel also alleges that the university treats female complainants in Title IX cases differently from male complainants. During the investigation, he says, Fogel told the Title IX coordinator that a female former supervisor had once attempted to give him "an unwanted hug and a kiss" during a 2015 conference in New Orleans.
When he asked why that behavior was acceptable and his kiss was not, the Title IX investigator did not give a “meaningful response” and didn’t investigate the former supervisor, according to Fogel's complaint.
Fogel also says he was denied even a redacted copy of the investigation report. Within a few weeks, the investigator had determined that Fogel “committed serious violations of the University's Sexual Misconduct, Sexual Harassment and Other Forms of Harassment Policy.”
The university allegedly terminated Fogel in March 2018 based on the Title IX report, without allowing him to respond to it or to defend himself during a hearing. He says he was told unrelated job performance issues were part of the decision. The university’s Board of Trustees upheld the decision in August and denied his appeal.
Fogel alleges that the dean who terminated him simply didn’t like him and considered Fogel to be uncollegial and obstructionist.
An ‘Erroneous Outcome’?
The bulk of Fogel's case is based on the idea that the university discriminated against him by, in Kearney’s words, “skewing an investigative process under an erroneous outcome theory to lead to his termination.” In addition to defamation and invasion of privacy, he also claims breach of contract.
Kearney’s memo says that the University of the Arts, in its legal arguments, has thus far misunderstood the case as one of due process. But Fogel’s case is not about due process at all. And erroneous outcome of Title IX claims have been carefully laid out in other cases, such as in Yusuf v. Vassar College.
In that case, Kearney wrote, a federal appeals court explained that plaintiffs claiming a Title IX violation under an erroneous outcome theory "must allege particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding." And to survive a motion to dismiss, Kearney continued, quoting Yusuf, the plaintiff must also allege "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." (That case was initially dismissed in 1993, as a court in New York court determined that the plaintiff presented insufficient evidence that a college panel had found him guilty of sexual misconduct because he was a man facing a female accuser. A federal appeals court reinstated the plaintiff's gender bias claim in 1994.)
The University of the Pacific professor involved in Fogel’s case declined comment on the pending case, especially as it involves defamation claims.
The University of the Arts said in a statement, “We are confident that the university’s actions have complied fully with the law, and in the best interests of the university community. Fogel’s claims are denied in their entirety and will be vigorously defended.”
David F. McComb, Fogel’s lawyer, said, “We believe that university processes need to be conducted with utmost fairness for everyone involved, and Me Too does not change that.”
If Fogel is successful at trial, the court can order his reinstatement for or allow a jury to determine damages to be awarded.
