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Elmore v. Bellarmine University

United States District Court, W.D. Kentucky, Louisville Division

March 28, 2018




         This matter is before the Court on a motion for preliminary injunction by Plaintiff, Caleb Elmore [DN 3]. A preliminary injunction hearing was held on March 13, 2018. Fully briefed and argued, this matter is ripe for decision.

         I. BACKGROUND

         Plaintiff, Caleb Elmore, is a student at Defendant, Bellarmine University, a private university located in Louisville, Kentucky. On January 25, 2018, Plaintiff filed this action for breach of contract, promissory estoppel, negligence, and violation of Title IX. Plaintiff asserts that Bellarmine imposed disciplinary sanctions against him in retaliation for his complaints of sexual misconduct against a Bellarmine chemistry professor, Dr. Francis Barrios. Plaintiff also filed this motion seeking a preliminary injunction prohibiting Bellarmine from imposing discipline on him “in violation of its contractual obligations and in retaliation for Caleb Elmore asserting a Title IX sexual harassment complaint against a Bellarmine faculty member.” (Motion at 3.)

         Plaintiff contends that in the spring and summer of 2017 Dr. Barrios sought a sexual relationship with Elmore and engaged in a series of sexually explicit text messages. Plaintiff alleges that on September 6, 2017, he and Dr. Barrios had a disagreement regarding a research project and his foreign language requirement that resulted in the end of the relationship.

         On September 7, 2017, Dr. Barrios met with Dr. Pat Holt, his department chair, and communicated that Elmore became upset when Dr. Barrios refused to support his request to count a study abroad experience towards the school's foreign language requirement and that Elmore threatened to kill him. On September 13, 2017, Elmore met with Dr. Holt who informed Elmore that he would be required to withdraw from the research project with Dr. Barrios and indicated that an apology letter to Dr. Barrios from Elmore would “make this go away.” Elmore refused to apologize and refused to relinquish his role in the research project. Elmore maintains that Dr. Barrios made this false allegation against him in retaliation for Elmore ending their relationship and in an effort to intimidate him from reporting the inappropriate relationship to Bellarmine. On September 14, 2017, Dr. Sean McGreevey, Dean of Students, met with Elmore about the alleged incident. Dr. McGreevey testified that he believed Elmore wanted a hearing to explain his side of the story.

         On September 25, 2017, Dr. Barrios filed a formal complaint with Bellarmine in which he alleged Plaintiff violated Bellarmine's Student Code of Conduct by threatening to kill him, and Bellarmine began a formal investigation. On September 26, 2017, Elmore received a notice that he was being charged with a violation of the Code of Student Conduct for the incident on September 6, 2017. Dr. McGreevey again met with Elmore to inform him of the charges. The Notice of Alleged Violation(s) reflected Elmore's name, date of incident, location of incident, time of incident, and described the incident as follows: “[Elmore] allegedly verbally harassed a Bellarmine University faculty member in the faculty member's office with threats of physical harm.” The Notice indicated the Student Code of Conduct violations as “2.00 Harassment, ” “4.00 Violation of Federal, State, Local Law and/or University Policies, ” and “13.00 Disorderly Conduct.” (Preliminary Injunction Hearing, Exhibit 3.)

         An initial hearing on Elmore's Student Code of Conduct violations was set for October 11, 2017. On October 5, 2017, Elmore filed a complaint under Bellarmine's Sexual Misconduct Policy alleging that Dr. Barrios sexually harassed him. Plaintiff requested a stay of his Student Code violation hearing as a result of his sexual harassment allegations. Bellarmine granted the stay.

         Bellarmine conducted an investigation of Elmore's sexual harassment complaint led by Clare Dever and Dr. Kevin Thomas. On December 21, 2017, Bellarmine reset the hearing on Elmore's claim of sexual misconduct by Dr. Barrios to January 12, 2018. On December 22, 2017, Elmore's counsel expressed concerns about the investigative report prepared by Dever and Thomas, specifically the investigators' emphasis on the issue of consent, instead of the issue of discrimination for purposes of Title IX liability. (Preliminary Injunction Hearing, Exhibit 6.) Additionally, Elmore's counsel later requested a delay of the Title IX hearing due to a conflict with the parties' schedules.

         As a result of Plaintiff's sexual harassment complaint and subsequent investigation, Dr. Barrios was dismissed from his position at Bellarmine on December 21, 2017. Bellarmine terminated Dr. Barrios for engaging in a “highly inappropriate relationship with one of your students, ” which included text messages with extensive sexual innuendo, vulgar language, extensive reference to genitalia, threats of violence against a fellow faculty member which was not reported to any campus official, and invitations to visit Dr. Barrios' home. In the letter, Bellarmine noted that the sexual harassment proceeding was still pending, but that regardless of its outcome, the investigation leads them to believe termination is warranted. (Dec. 21, 2017 Letter from Pfeffer to Barrios, Preliminary Injunction Hearing, Exhibit 4.)

         On December 30, 2017, Elmore and his counsel were notified via email from Bellarmine's counsel that Dr. Barrios would not be returning to Bellarmine. Additionally, Bellarmine agreed to the delay of the Title IX hearing, but notified counsel that Bellarmine had decided to proceed with Elmore's student code hearing. Bellarmine added two new code of conduct violations. Specifically, Bellarmine maintained that that Plaintiff violated Bellarmine's Student Code of Conduct resulting when (1) he threatened Dr. Akhtar Mahmood in two text messages to Dr. Francis Barrios on June 2, 2017 (to kill Dr. Mahmood) and July 3, 2017 (to destroy him), and (2) he threatened to kill Dr. Barrios and have him fired on September 6, 2017.

         The email provided in relevant part:

Mr. Elmore is being charged with violating Bellarmine's Code of Student Conduct on three separate occasions.
First, he is being charged in connection with the incident that occurred in Dr. Barrios' office on September 6, 2017. This is the same violation presented to Mr. Elmore last September. Additionally, the hearing will also address alleged threats made by Mr. Elmore toward Dr. Mahmood on June 2, 2017 and July 3, 2017. As you may know, the existence of these threats came to our attention during the course of the investigation associated with the sexual misconduct hearing, and our review of the report and the totality of the circumstances surrounding Mr. Elmore's conduct as a student has led to the conclusion that his conduct as set forth in the text messages from last summer should be addressed in the student code hearing.
These alleged violations are associated with [the] following provisions of Bellarmine's Code of Student Conduct:
2. Intentionally or recklessly harassing or causing physical harm to others or causing apprehension of harm. Harassment includes, but is not limited to, stalking, verbal harassment, hate speech, bullying, cyber-bullying, and verbal threats.
4. Violation of federal, state, or local laws and ordinances, or University policies including the ...

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