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Frost v. University of Louisville

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

May 29, 2019

DR. CHRISTOPHER FROST PLAINTIFF
v.
UNIVERSITY OF LOUISVILLE, ET AL. DEFENDANTS

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE

         I. INTRODUCTION

         This matter is before the Court upon Plaintiff Dr. Christopher Frost's Amended Motion for Preliminary Injunction and Permanent Injunction. DN 21. Defendants have responded (DN 22), and Plaintiff has replied (DN 24). This matter is now ripe for adjudication. For the reasons that follow, Frost's motion for preliminary injunction and permanent injunction will be GRANTED IN PART and DENIED IN PART.

         II. BACKGROUND

         This litigation arises out of the termination of Plaintiff Dr. Christopher Frost from his tenure-track appointment as an Assistant Professor of Biology at the University of Louisville. Frost filed this action on March 27, 2019, pursuant to 42 U.S.C. § 1983. Frost seeks a preliminary injunction restoring him to his tenure-track appointment asserting that Defendants deprived him of protectable property and liberty interests without due process of law under 42 U.S.C. § 1983.

         The parties jointly filed a stipulation of facts (DN 19) and the relevant facts are undisputed. The Court adopts the stipulation and reproduces it below as presented by the parties:

         1. On March 13, 2015, the University of Louisville (“U of L”) offered Dr.

         Christopher Frost a probationary, tenure-track appointment as an Assistant Professor of Biology in the College of Arts and Sciences. Dr. Frost accepted the offer. A true and accurate copy of the March 13, 2015 offer letter is attached as Exhibit 4 to the Amended Complaint.

         2. The March 13, 2015 offer letter stated that, “the conditions governing employment at the University of Louisville are contained in the University's governance document, the Redbook.”

         3. The March 13, 2015 offer letter further provided that:

Your review for tenure will be no later than academic year 2020-2021, with tenure to be effective July 1, 2022. If your review during academic year 2020-2021 results in a decision not to grant tenure, your appointment for 2021-2022 would be terminal. Termination of your appointment prior to that time would be subject to the provisions of the Redbook. The policies and procedures for all personnel reviews are specified in the Redbook and the College of Arts and Sciences Personnel Policy and Procedures.

         4. Over the course of his three-year tenure at the University, Dr. Frost has supervised the work of graduate and undergraduate students. Dr. Frost supervised the laboratory research, article-writing and other post-graduate work of three graduate students, one postdoctoral scientist and eight undergraduate students, all of whom work in the laboratory created by Dr. Frost.

         5. In 2017, the National Science Foundation awarded Dr. Frost in excess of $700, 000 for use in his on-going research (the “Grant”).

         6. On July 7, 2018, Dr. Frost hosted a potluck at his home. He invited those students who worked in his lab. He also included his accuser, Jane Doe, in the invitation. Doe is a student in the Biology Department at the University of Louisville. Defendants Ernst and Schroeder concluded that Doe was under the age of 21 at the time of the July 7, 2018 potluck. Defendants Ernst and Schroeder made no finding respecting whether Dr. Frost knew Doe was under 21 at the time of the potluck.

         7. Dr. Frost bought a six-pack of beer for himself for the July 7, 2018 event. The invitees were permitted to bring alcohol to the event; that is, it was BYOB. Doe alleged that Dr. Frost offered her a beer but that she turned it down because she already had one. Dr. Frost disputes the allegation that he offered Doe a beer. He agrees that Doe was drinking beer at the potluck. Defendants Ernst and Schroeder “were unable to confirm Dr. Frost offered [a beer] to Ms. [Doe].” Case Summary Report at 5.

         8. Doe indicated that she wanted to stay after the other potluck attendees left. Dr. Frost and Doe continued talking in the living room. While the parties were not able to reach a stipulation as to the events leading up to Doe's consumption of bourbon, they agree that Doe drank some bourbon at Dr. Frost's home. The parties also agree that Defendants Ernst and Schroeder “were unable to confirm that Dr. Frost poured bourbon in a glass for Ms. [Doe].” Case Summary Report at 5.

         9. Afterward, Doe became ill, and while she was vomiting into a toilet, Dr. Frost held her hair back and rubbed the top of her back. Defendants Ernst and Schroeder “confirmed Dr. Frost placed his hands on Ms. [Doe]'s upper back and her hair.” Case Summary Report at 6.

         10. On November 5, 2018, Doe brought a complaint alleging harassment based on gender/sex against Dr. Frost. Ms. Doe lodged her complaint with the University's Employee Relations Department. Defendants Laura Schroeder and Donna Ernst interviewed Ms. Doe on November 5, 2018 as a part of their fact finding pursuant to the U of L's sexual harassment policy (Personnel Policy 1.02).

         11. On November 6, 2018, Dr. Frost received this e-mail message from Defendant Laura Schroeder (f/k/a Laura Carter):

On November 5, 2018, Human Resources received a complaint from [Jane Doe] alleging harassment based on gender/sex. The complaint names you as a respondent.
The University takes complaints of this nature very seriously. Our office has initiated an investigation in accordance with University policy and procedures. An investigation is generally completed within sixty (60) business days of receipt of the complaint; you will be notified if additional time is necessary. Upon the conclusion of the investigation you will receive a copy of our findings.
The same laws that prohibit discrimination and harassment also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding. The University will investigate any reported retaliation any person who is party to a complaint process under these guidelines that are consistent with University policies and procedures and the law.
Our office will contact you to schedule an appointment and further discuss the allegations in the complaint. If you have any questions regarding this matter, please do not hesitate to contact me.
Thank you,
Laura Carter
EEO - Employee Relations Specialist
Human Resources . . . .

         12. On November 6, 2018, Dr. Frost sent this email to Defendant Schroeder (f/k/a Carter): “Dear Laura Carter, I would like to be informed of the specifics of the complaint. Thank you, Dr. Frost.”

         13. On November 7, 2018, Ms. Carter, now Schroeder, sent this email to Dr. Frost: Good Afternoon Dr. Frost, The harassment complaint based on gender/sex contained the following allegations:

• You hosted a potluck at your house in the summer in which students were invited;
• Alcohol was served; and
• Inappropriate touching occurred.

         We will further discuss these allegations when we meet and you will have an opportunity to respond and ask questions. This is a fact finding meeting, not a formal hearing.

         14. The Sexual Harassment Policy (Personnel Policy 1.02) sets forth the process for investigating and resolving complaints made pursuant to the Sexual Harassment Policy.

         15. The Redbook applies to all faculty and staff members employed at the University.

         16. Defendants Ernst and Schroeder interviewed six witnesses as a part of their fact finding investigation. Two had attended the potluck. Four had not attended the potluck. The identities of those students whom Ernst and Schroeder selected for interviews were not disclosed to Dr. Frost in advance of or during his interview. None of the specific statements made by his accuser or any other interviewee was disclosed to Dr. Frost in advance of or during his interview.

         17. Dr. Frost was interviewed by the University's Employee Relations and Compliance Office on December 5, 2018. Dr. Frost provided Ernst and Schroeder with a copy of Doe's post-complaint effort to follow him through ResearchGate, a social media website.

         18. Dr. Frost was not given the opportunity to question or cross-examine Jane Doe or anyone else whom Defendant Ernst and Defendant Schroeder interviewed.

         19. On January 14, 2019, Defendants Ernst and Schroeder disclosed their findings, whom they selected to interview, statements which they obtained and selected for inclusion in the report, and the conclusion they drew that Dr. Frost had violated the U of L's sexual harassment policy. Those findings and conclusions are contained in a “Case Summary Report.” Defendants Ernst and Schroeder emailed the report to Dr. Frost, Dean Kimberly Kempf-Leonard, Provost Beth Boehm, and Chief Human Resources Officer John Elliott. They also emailed their report to Dr. ...


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