Misconduct

Court Upholds Decision To Terminate Tenured Professor For Alleged Sexual Harassment.

Professor John Heineke became a tenured professor of economics at Santa Clara University, a private institution, in 1972. His employment was subject to the faculty handbook, a part of his employment contract with the University. In 2015, Jane Doe, a Chinese national and MBA student, enrolled in one of Heineke’s classes. She repeatedly met with Heineke in his office outside of office hours, at her own request, for help with the course material. Doe received an “A” in the class and accepted an offer to serve as Heineke’s teaching assistant (TA) for the same course in fall 2015. Heineke and Doe had a friendly relationship and Doe sent complimentary emails to Heineke.

Heineke admits that he tried to “mentor” Doe in European/American culture, including once demonstrating the French style of greeting by pressing cheeks and kissing the air and hugging her several times. Heineke described the contact as brief, nonsexual, and at her request. Doe described the contact as extreme, extensive, and nonconsensual.

During the summer of 2015, Doe canceled a lunch and when Heineke asked to reschedule for later in the summer, Doe responded that she was unavailable during summer break. Despite Doe’s and Heineke’s agreement to defer a meeting until September, Heineke emailed Doe

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In September 2015, Doe responded to the emails, again stating her unavailability and alleging that Heineke had put his hands in her clothes, touched her body and skin, squeezed her bottom, kissed her mouth, pressed his penis against her, and sexually harassed her. Heineke emailed back denying the allegations and expressing shock and disbelief. Doe reported the sexual harassment to the University’s equal employment opportunity office. The University’s Director of Equal Opportunity and Title IX Coordinator Belinda Guthrie met with Doe about her claim, but Doe did not respond to Guthrie’s requests for more information and Guthrie did not pursue Doe’s claim. Guthrie did not initiate an investigation or advise Heineke of the complaint. Heineke did not tell anyone at the University about the emails and deleted them from his account because they “bothered him immensely.”

In January 2017, another female student from China (Student A) complained to Guthrie’s office that Heineke had sexually harassed her. Guthrie hired Michael Henry, an investigator with the National Center for Higher Education Risk Management Group (NCHERM) to investigate. When Henry interviewed Heineke, Heineke did not disclose Doe’s accusations and said “no” when asked if anything like this has ever come up before. Henry also interviewed Doe at length, and her account was consistent with her September 2015 emails. After the interview, Guthrie authorized a separate investigation of Doe’s claim.

In May 2017, Henry interviewed Heineke and seven other witnesses about Doe’s accusations. Heineke again denied that anything like this had happened before. In May 2017, Henry issued a report concluding that Heineke had not sexually harassed Student A. In June 2017, Henry issued a report on the Doe investigation, finding it more likely than not that Heineke had harassed Doe. Based on the investigation findings, the University determined that Heineke engaged in gross misconduct and terminated his employment. Heineke appealed the decision internally, when the appeal was denied and his dismissal was affirmed, he brought multiple actions in court to overturn the termination. None of these succeeded.

For example, for Heineke’s wrongful termination claim alleging age discrimination, the trial court concluded the University made a primafacie showing of a legitimate basis for termination under the faculty handbook for sexual harassment. Heineke admitted he had no objective evidence that he was discriminated against or terminated due to his age. The trial court also found that the veracity of Doe’s allegations was immaterial to the question of whether the University genuinely believed, after conducting an investigation, that Heineke had harassed Doe. The Court of Appeals agreed. The Court of Appeals noted that Heineke did not provide any evidence of age discrimination. Heineke’s “evidence” of pretext was all speculation, hearsay, and conclusory arguments.

For Heineke’s breach of contract claim, the trial court held that the University complied with their faculty handbook terms permitting termination for misconduct, which includes sexual harassment. The handbook authorizes termination when “in the judgment of the Provost, reasons exist to dismiss and terminate the tenure of a tenured faculty member for misconduct.” Heineke argued that this interpretation renders the tenure clause illusory because the University could have its Provost falsely (and/or in bad faith) claim subjectively that a faculty member committed misconduct. The Court of Appeals upheld the trial court’s ruling and noted that the University afforded Heineke all of the processes he was entitled to in the faculty handbook, including a lengthy evidentiary hearing and a thorough decision where the Faculty Judiciary Board made credibility findings and explained its reasoning. The Court of Appeals upheld the University’s decision to terminate Heineke.

Heinekev.SantaClaraUniversity (2023) __ Cal. Ct. App. __ [2023 WL 3116225].

Note:

This case is instructive because it shows the importance of following the process outlined in the employee handbook when terminating an employee for violation of an organization’s policy. In addition, it shows the importance of conducting a thorough investigation into allegations of harassment to support terminating an employee accused of harassment.