Monahan v. University of Utah

Full title: MICHAEL J. MONAHAN, Plaintiff, v. UNIVERSITY OF UTAH; J. BERNARD MACHEN…

Court: United States District Court, D. Utah, Central Division

Date published: Apr 5, 2005

Case No. 2:03-CV-34 TC (D. Utah Apr. 5, 2005)

Opinion

Case No. 2:03-CV-34 TC.

April 5, 2005

ORDER

TENA CAMPBELL, District Judge

This case was brought principally under 42 U.S.C. § 1983 by Plaintiff Michael J. Monahan, a former employee of the University of Utah, whose employment was terminated in August 2001 after a University finding that he had sexually harassed a student. Mr. Monahan asserts substantive and procedural due process as well as breach of contract claims against the Defendants University of Utah ("University"), former University President J. Bernard Machen,¹ and University Senior Vice President David W. Pershing (collectively, the "Defendants"), in connection with termination of his employment. President Machen is named in his individual capacity² and Vice President Pershing is named in his official as well as his individual capacity.

1 Mr. Machen was President of the University at the time the events at issue in this case occurred. Accordingly, the court will refer to him as President Machen for purposes of this Order.

2 Mr. Machen was originally named in his official capacity. But now Mr. Machen is only being sued in his individual capacity, because he is no longer President of the University.

This matter is currently before the court on Defendants' four motions for partial summary judgment (combined, the four motions for partial summary judgment are the equivalent of one motion for complete summary judgment),³ in which the Defendants raise, among other things, the defense of qualified immunity. Those four motions are (1) "Defendants' Motion for Partial Summary Judgment: Due Process" (Docket No. 74), (2) "Motion for Partial Summary Judgment: The Individual Defendants are Entitled to Qualified Immunity Regarding Attorney Representation" (Docket No. 70), (3) "Defendant Machen's Motion for Summary Judgment" (Docket No. 78), and (4) "Defendant University of Utah's Motion for Partial Summary Judgment: Breach of Contract Claims" (Docket No. 76). Also before the court is Plaintiff's Motion to Strike the Second Declaration of Julene Persinger.

3 Two other defendants, Elizabeth A. Peterson and Phyllis A. Haskell, were dismissed from the suit on December 6, 2003. (See Dec. 6, 2003 Order, Docket No. 48.) In addition, certain claims against all of the Defendants were dismissed earlier in the case. (See id.; May 23, 2003 Order, Docket No. 25.) The Defendants' current motions seek summary judgment on all remaining claims.

Having fully considered the motions and all related filings, the arguments of counsel, and the governing law, the court now enters its Order. For the reasons set forth below, the court (1) GRANTS IN PART AND DENIES IN PART Defendants' Motion for Partial Summary Judgment: Due Process, (2) GRANTS Defendant Machen's Motion for Summary Judgment; (3) GRANTS Defendants' Motion for Partial Summary Judgment: The Individual Defendants are Entitled to Qualified Immunity Regarding Attorney Representation; (4) GRANTS IN PART AND DENIES IN PART Defendant University of Utah's Motion for Partial Summary Judgment: Breach of Contract Claims; and (5) DENIES AS MOOT Plaintiff's Motion to Strike the Second Declaration of Julene Persinger.

BACKGROUND

On August 22, 2001, Plaintiff Michael J. Monahan's employment with the University of Utah as Supervisor of Facilities in the Art Department was terminated. As grounds for termination of his employment, the University cited to its findings (based on its internal investigation) that Mr. Monahan had sexually harassed a female art student, Christine Holubar, over a two-year period by creating a hostile environment. Mr. Monahan denied Ms. Holubar's claim and, exercising his rights under the University's policy, went through the University's hearing and review process (described in more detail below). He, however, did not prevail and was not reinstated by the University. This lawsuit followed.

Ms. Holubar's Complaint

On April 27, 2001, Christine Holubar, an art student at the University of Utah, filed a formal complaint against Michael J. Monahan alleging sexual harassment. At the time, Mr. Monahan was a University employee working as Supervisor of Facilities in the Art Department.

Ms. Holubar filed her complaint with the University of Utah's Office of Equal Opportunity Affirmative Action ("OEO/AA"). According to the University's Non-Discrimination Policy, a formal internal⁴ complaint "must be filed with the Office of Equal Opportunity and Affirmative Action within 120 days of the date when the alleged discrimination occurred, or the date of the most recent alleged discriminatory acts or events." (University of Utah OEO/AA "Filing Options Timeline," p. MHN00096 of Ex. 5 attached to Decl. of Morris Haggerty in Supp. of Defs.' Mot. for Partial Summ. J.: Due Process [hereinafter "Haggerty Due Process Decl."].) That is, "[a] complaint alleging harassment or discrimination must be filed within 120 calendar days of the date of the last alleged occurrence." (University Policy 2-32R7 VI.A.2., attached as Ex. 9 to Haggerty Due Process Decl. (emphasis added).) The parties dispute the meaning of "last alleged occurrence," which is a legal issue the court will address below.

4 An "internal" complaint is one filed with the University, whereas an "external" complaint is one filed with the Utah Industrial Commission (part of the State of Utah's Anti-Discrimination and Labor Division) or the federal Equal Employment Opportunity Commission. (See University of Utah Office of Equal Opportunity Affirmative Action "Filing Options Timeline," p. MHN00096 of Ex. 5 attached to Decl. of Morris Haggerty in Supp. of Defs.' Mot. for Partial Summ. J.: Due Process.)

According to the University, the "last alleged occurrence" happened on February 14, 2001, when Mr. Monahan sent Ms. Holubar a Valentine's Day card with the pre-printed message "I love you" inside. The date of February 14, 2001, fell within 120 days of April 27, 2001, the date Ms. Holubar filed her complaint. But Ms. Holubar's complaint alleged activities that occurred as far back as the Fall of 1999. (See Holubar Discrimination Complaint Form, attached as pp. MHN00142-143 and MHN00095-99 in Ex. 5 to Decl. Of Morris Haggerty in Supp. Of Defs.' Mot. For Partial Summ. J.: Breach of Contract Claims [hereinafter "Haggerty Breach of Contract Decl."].)

Ms. Andrea Brown, an investigator employed by the OEO/AA, began investigating Ms. Holubar's allegations around May 8, 2001.

Notice to Mr. Monahan of Ms. Holubar's Complaint and Mr. Monahan's Initial Response

On May 11, 2001, Ms. Brown sent a one-page memorandum to Mr. Monahan notifying him that Christine Holubar had filed a complaint of sexual harassment against him. Her notice summarized Ms. Holubar's allegations. (See May 11, 2001 Mem. from Andrea Brown to Michael Monahan, attached as Ex. 4 to Haggerty Due Process Decl. at p. MHN00211.) The May 11th notification asked Mr. Monahan to "provide a written response to the OEO/AA by 5pm on Monday, May 14, 2001." (Id.)

Later that same day, Mr. Monahan sent a two-page facsimile to Ms. Brown. (See May 11, 2001 Facsimile from Monahan to Brown, attached as pp. MHN00219-221 to Ex. 4 of Haggerty Due Process Decl.) He also spoke to Ms. Brown on the telephone that day, and Ms. Brown took notes of that conversation. (See Tr. of Andrea Brown's May 11, 2001 interview notes, attached as Ex. 4 to Haggerty Due Process Decl. at pp. MHN00217-218.)

Ms. Brown continued her investigation after receiving Mr. Monahan's initial response. On June 20, 2001, she sent an e-mail to Mr. Monahan informing him that the investigation was ongoing and that if he had any questions or comments, to contact her. (See June 20, 2001 E-mail from Andrea Brown to Michael Monahan, attached as Ex. 4 to Haggerty Due Process Decl. at pp. MHN00100, MHN00222.) Mr. Monahan replied that day in an e-mail, in which he acknowledged receipt of Ms. Brown's e-mail and noted that he would like to meet with her in the near future to discuss his questions and comments. (See June 20, 2001 E-mail from Mr. Monahan to Ms. Brown, attached as Ex. 4 to Haggerty Due Process Decl. at p. MHN00222.)

The next day, June 21, 2001, Mr. Monahan had a telephone conversation with Ms. Brown, who took notes of the interview. According to Ms. Brown's notes, Mr. Monahan asked for a list of individuals who knew about the complaint and investigation. Ms. Brown told him she would not give him the names of witnesses. (See Tr. of Andrea Brown's June 21, 2001 interview notes, attached as Ex. 4 to Haggerty Due Process Decl. at pp. MHN00223-224.) The purported reason for not disclosing the witnesses was an abstract concern about retaliation (abstract because there is no evidence of an actual threat of retaliation or actual retaliation) and the University's need to fulfill its investigative duties by getting information from knowledgeable witnesses who would otherwise not come forward without the cloak of confidentiality.

On June 29, 2001, Ms. Brown sent Mr. Monahan a brief memo reporting the status of the investigation. (See June 29, 2001 Mem. from Andrea Brown to Michael Monahan, attached as Ex. 1A to Haggerty Due Process Decl.) She simply said that the investigation was ongoing, that the investigative report was not yet finished, but that she hoped to resolve the matter "in the near future." (Id.) Mr. Monahan did not respond to Ms. Brown's June 29, 2001 communication.

On August 3, 2001, Ms. Brown sent an eleven-page letter to Mr. Monahan summarizing the results of her investigation of Ms. Holubar's complaint. (See Aug. 3, 2001 Letter from Ms. Brown to Mr. Monahan, attached as Ex. 1B to Haggerty Due Process Decl.). In the letter, Ms. Brown set forth the University's policy on sexual harassment and the standard of proof (preponderance of the evidence) that must be met in order to find that sexual harassment occurred. (Id. at 1-2.)

The University's sexual harassment policy applies a subjective standard for the alleged victim rather than the objective standard required by the federal Title VIII statute regarding sexual harassment cases filed in federal court. University of Utah Policy 2-6A defines "sexual harassment" as:

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, education, living environment or participation in a university activity; (2) submission to or rejection of such conduct by an individual is used as the basis for or a factor in decisions affecting that individual's employment, education, living environment, or participation in a university activity; or (3) such conduct [that] has the purpose or effect of unreasonably interfering with an individual's employment or education performance or creating an intimidating, hostile, or offensive environment for that individual's employment, education, living environment, or participation in a university activity.

(Id. (emphasis added).)

In her letter, Ms. Brown concluded that:

Monahan's behavior toward Holubar was sexual in nature, severe and/or pervasive, and unwelcome/unwanted. The undisputed allegations support a finding that Monahan clearly exhibited a pattern of hostile environment sexual harassment. . . . [T]he information provided by Holubar, Monahan, and numerous witnesses indicates that Holubar has, more likely than not, been subjected to a sexually hostile work and educational environment by Monahan.

(Id. at 8 (emphasis added).) The identities of the "numerous witnesses" cited by Ms. Brown were not revealed in the letter. (See id.) The letter incorporated the text of the final report that Ms. Brown eventually sent to Vice President Pershing.

At the end of her letter, Ms. Brown stated that "it is the recommendation of the OEO/AA that Monahan be terminated from employment at the University of Utah." (Id. at 11.) She also informed Mr. Monahan of his right to respond:

In keeping with the University of Utah Policy 2-32, VI. C. 3., you [Mr. Monahan], as well as the charging party [Ms. Holubar], have ten (10) days from the time you receive this summary to submit to this office any written or verbal comments and/or additional documents you believe will be helpful in presenting your issues, if you so desire. In accordance with OEO/AA policy, that date will be August 17, 2001. Any such comments and/or documents will be appended to the final report and forwarded to David W. Pershing, Senior Vice President for Academic Affairs, in accordance with University Policy 2-32.

(Id. at 1 (emphasis added).) The possible sanctions and remedial actions available under University policy for discrimination and harassment cases "shall be appropriate to the circumstances and may include the imposition of a fine, suspension, or termination or expulsion." (University Policy 2-32R7.IX.A.) The OEO/AA's Report on the Results of Ms. Brown's Investigation

On August 17, 2001, the OEO/AA issued its report regarding the results of Ms. Brown's investigation. (Aug. 17, 2001 Report from Andrea Brown, University OEO/AA, to David Pershing, University Sr. VP for Academic Affairs (hereinafter "OEO/AA Report") at 11 (attached as Dep. Ex. 27 to Pl.'s Principal Ex. Summary, Docket No. 166).) The OEO/AA Report contained the following language setting forth or summarizing testimony of unidentified witnesses:

Some witnesses heard Monahan talk about Holubar. One witness states that Monahan said he loved her and adds that "[Monahan] freaks out when he sees Chrissy with her boyfriend." Another witness states that when Monahan was told that Holubar is "such a sweet girl," his reply was, "You're preaching to the choir, kid. I wanted to marry her." That witness also alleges that Monahan said, "when [I] learned that Holubar was living with someone, it was the saddest day of [my] life."

(OEO/AA Report at 5 (emphasis added).)

Five witnesses, including staff, faculty and students, state that Monahan asked them out on dates. Four of those report that after they told him "no," he continued to ask them out. Three of those four indicate that his behavior was not offensive to them, but one said she was uncomfortable, and it was unwelcome to all in that each woman told him "no." Similar to Holubar, that witness states that she tries to stay away from him and if she needs something, "I have a faculty member ask him for help." Another witness states that she also received a Valentines Day card, but that she did not feel uncomfortable about it. Regardless of whether Monahan's requests for dates made those women uncomfortable, the requests were unwelcome because they repeatedly told Monahan "no." It should have been clear to Monahan that his behavior was unwelcome and unwanted.

Ten witnesses, including staff, faculty and students, report that Monahan has dated students and attempts to date students. Five of those witnesses report knowing that some students objected to Monahan's behavior.

(OEO/AA Report at 6 (emphasis added).)

As stated previously in this report, Holubar is not the only person who was pursued romantically by Monahan. Other women attest to receiving unwelcome requests for dates. Three witnesses state that Monahan asked them for dates numerous times even after they told him "no." The witness reports lend credibility to Holubar's allegations that Monahan asked her out on numerous occasions, even after she said "no." Regardless of whether any of Monahan's individual requests was explicitly offensive, in combination, the conduct was wide spread and serious.

Regarding his personal conduct, the perceptions of some witnesses include that Monahan pursues "lots of girls, freshman," that, "He's a nice guy, lonely, targeting young girls," that, "He tends to go after first years," that, "he might favor a pretty girl," and that, "He likes girls who are . . . perky, youngish." One witness also believes that "cute, dateable women who flattered him would get more privileges." Another witness alleges hearing Monahan make sexual comments about women in general, such as, "Look at her ass, isn't it great?" and, "Look at the breasts on that woman." A third witness asserts knowing of a student who felt harassed by Monahan over the telephone, but could provide no further specific information.

(OEO/AA Report at 6-7 (emphasis added).)

[B]ased on statements from Holubar, Monahan, and witnesses, it appears that he exhibited a two year pattern of pursuing her and expressing his feelings for her, after she said "no," and clearly conveyed her lack of interest in a relationship with him.

(OEO/AA Report at 8 (emphasis added).)

Three witnesses report that they also were repeatedly asked out on dates by Monahan even after they declined. This indicates more likely than not that Monahan did engage in the behavior. . . . Therefore, the information provided by Holubar, Monahan, and numerous witnesses indicates that Holubar has, more likely than not, been subjected to a sexually hostile work and educational environment by Monahan.

(OEO/AA Report at 8 (emphasis added).)

Two witnesses allege that Monahan either failed to assist them or claimed he would not assist them after they declined his request for a date. One of those witnesses states:

He started asking me out, I told him I didn't want to, he'd get rude or mean. He wouldn't get things for me or help me. Things he should have done, he sends me to someone else. . . . He wants an explanation as to why I don't want to go out with him. Then he gets upset, won't help us, not even light bulb changes.

The second witness states:

He was one of the people who asked me to do something: dinner, drinks, etc. He made it clear that he wanted something more, to date. I told him I wasn't interested. He'd say, "I'd move this table, but you won't go out with me." I'm strong, it didn't bother me. . . . He'd keep asking me to do things. I'd say "no."

(OEO/AA Report at 9.)

[N]ine witnesses report that Monahan attempts to date students and has dated students in the past.

(OEO/AA Report at 10.)

Two things that make this case particularly grievous. First, Monahan does not believe that there is anything wrong with his behavior and does not understand the serious impact of his actions on students. Second, there is clear witness support that Monahan's conduct is ongoing and pervasive. Holubar is not the only woman who was pursued by Monahan even after his advances/requests were declined. While most chose to ignore him, one witness reports feeling similarly to Holubar. That witness stated that she is uncomfortable with Monahan's behavior and she avoids him. The factual information indicates that Monahan has engaged in at least a two-year pattern of inappropriate behavior with students.

(OEO/AA Report at 10-11 (emphasis added).)

Based on Ms. Brown's findings, the OEO/AA recommended "that Mr. Monahan be terminated from employment at the University of Utah." (OEO/AA Report at 11.) The OEO/AA Report was sent to Vice President Pershing. Ms. Brown also informed the University Art Department about the OEO/AA recommendation.

The University Art Department's Action and Mr. Monahan's Plea to Dr. Pershing

After Andrea Brown issued the OEO/AA Report, Elizabeth A. Peterson, Acting Chair of the Department of Art Art History, and Phyllis A. Haskell, Dean of the College of Fine Arts,⁵ sent Mr. Monahan a letter on August 16, 2001, giving him notice of the termination of his employment, effective August 22, 2001. (Aug. 16, 2001 Letter from Peterson Haskell to Monahan (attached as Dep. Ex. 62 to Pl.'s Principal Ex. Summary, Docket No. 166).) The letter specifically stated:

5 Both Ms. Peterson and Ms. Haskell were once named as defendants in this action, but the court dismissed them from the lawsuit in December 2003. (See Dec. 6, 2003 Order (Docket No. 48).)

The purpose of this letter is to notify you that after reviewing the summary of the investigation into the allegations of sexual harassment made against you, and at the recommendation of [OEO/AA] with the concurrence of the Office of Employee Relations (ER), we have decided to terminate your employment as Supervisor of Facilities for the Department of Art and Art History with the University of Utah. This decision is based on the OEO/AA investigation, the result of which is, [sic] detailed in the summary report provided to you on August 3, 2001.

The effective date of your termination will be August 22, 2001.

You have the right to appeal this action in accordance with the provisions of University Policy and Procedure No. 2-32, Discrimination, Harassment, Staff Employment Grievances: Office of Equal Opportunity and Employee Relations, by providing a written request for a hearing to the OEO/AA. . . . .

(Id. (emphasis added).)

Mr. Monahan appealed the decision and requested a hearing. In addition, Mr. Monahan, through counsel, sent a letter to Vice President Pershing on August 17, 2001, setting forth the alleged procedural flaws in Ms. Brown's investigation. The letter requested that Vice President Pershing "independently review the investigation" and "acknowledge that the investigation was conducted in an unfair manner that was violative of my client's rights, and that the suggested discipline of termination, even assuming the truth of all of the allegations, is excessive and unduly severe." (Aug. 17, 2001 Letter from Hobbs to Pershing at 1 (attached as Dep. Ex. 74 to Pl.'s Principal Ex. Summary, Docket No. 166).) Vice President Pershing replied to the letter by recommending that Mr. Monahan raise his concerns at a formal hearing. (See Aug. 30, 2001 Letter from Pershing to Hobbs (attached as Dep. Ex. 30 to Pl.'s Principal Ex. Summary, Docket No. 166).)

The Formal Hearing

Pursuant to Mr. Monahan's request, the University held a formal hearing on October 11, 2001, and a transcript of the proceeding was created. (See Oct. 11, 2001 Hearing Tr., attached as Ex. 10 to Haggerty Due Process Decl.) The hearing was governed by the Hearing Guidelines set forth in University Policy 2-32R7.VII.D. ("Hearing Guidelines") (attached as Ex. 9 to Haggerty Due Process Decl.) Those Hearing Guidelines read in relevant part as follows:

3. Both parties may be accompanied and counseled by an advisor of their choice who will be permitted to attend, but not participate in, the proceedings . . .

4. The Committee and each party may request the appearance of witnesses and the production of documentary evidence. Whenever possible, advance notice of witnesses to be interviewed shall be given to all parties.

5. Whenever possible, all materials submitted for consideration by any party or otherwise considered by the Committee shall be made available to all parties at least three (3) days prior to the scheduled hearing. In exceptional circumstances, the Committee may allow a party to submit evidence or materials at the time of the hearing. . . .

7. At the hearing, the parties shall have the right (through the Committee Chair) to question witnesses, to present evidence and call witnesses on their own behalf, in accordance with the Committee's procedures established for the conduct of hearings. . . .

9. The Committee shall not be bound by strict rules of legal evidence or procedure and may consider any evidence deemed relevant. . . .

18. The OEO/ER shall send a copy of the Committee's findings and recommendations to the cognizant vice president, the complaining party and the responding party.

(Policy 2-32 Hearing Guidelines at VII.D., attached as Ex. 9 to Haggerty Due Process Decl. (emphasis added).)

During the hearing, pursuant to the Hearing Guidelines, Mr. Monahan was allowed to have his attorney present, but the attorney's only role was to accompany and counsel his client. Although the attorney was not allowed to participate in the proceedings, the Committee did permit him to make a couple of objections during the hearing. (See, e.g., Tr. at 66-67, 69-70 (objecting to Ms. Brown's suggestion of the potential for retaliation against confidential witnesses by Mr. Monahan's supporters); Complaint ¶¶ 30, 32.)

During the hearing, Mr. Monahan called numerous character witnesses to testify on his behalf. For the University, Ms. Holubar and Mr. Danield Gerhart⁶ testified, and Andrea Brown proffered evidence, including statements of witnesses who were not in attendance and whose identities and statements were not revealed before the hearing began. Mr. Monahan was able to cross-examine Ms. Holubar, Mr. Gerhart, and Ms. Brown through the Chair of the Committee.

6 Mr. Gerhart was a graduate student at the time Ms. Holubar filed her complaint against Mr. Monahan. Mr. Gerhart was a friend of Ms. Holubar and was aware of Ms. Holubar's circumstances. (Tr. at 86.) The fact that Mr. Gerhart was to testify at the hearing was not revealed to Mr. Monahan before the hearing.

The following is a series of excerpts from the hearing transcript relating to presentation of evidence from witnesses who were not in attendance and whose identities and the nature of their testimony were not revealed until the hearing:

MS. BROWN: . . . [I]n the course of this investigation, we do talk to several people. It's not a very formal, structured thing. We're not getting signed affidavits. We're not necessarily recording the interviews. These things are conducted in this way under University of Utah policy.

Another thing to keep in mind, I think you already know this, is that ultimately we're using these witnesses not — none of these witnesses that came to me volunteered to come to me. None of them filed complaints against Mr. Monahan, and we didn't make our decisions based on finding out that Mr. Monahan took some action, in fact, against any of the witnesses. Absolutely not. The decisions were made on information regarding Ms. Holubar. What the witnesses do is lead to credibility. They show whether or not the behavior was pervasive. But we didn't take any violations against Mr. Monahan based on his conduct with those witnesses.

(Tr. at 74 (emphasis added).)

MS. OAKES [COMMITTEE CHAIR]: [To Mr. Monahan:] Any questions for this particular witness [Dan Gerhart]?

MR. MONAHAN: Right. Okay. I'd like Dan to tell us from whom, what several witnesses he heard that I wanted to marry Chrissy.

MS. OAKES: Could you [Mr. Gerhart] let us know more specifically how many and who the witnesses were who told you that Mr. Monahan had said he wanted to marry Ms. Holubar?

MS. BROWN: I'm sorry. That wasn't him [Mr. Gerhart]. That was another witness. . . . No it wasn't [testified to] here today. It's in the report that [the OEO/AA issued].

(Tr. at 106-07 (emphasis added).)

MS. BROWN: . . . We're talking about the issue of is it pervasive, lingering, ongoing, repetitive? And indeed, we have found in the course of this investigation that pervasive has been satisfied not only by Ms. Holubar and the witnesses, but simply by Mr. Monahan's statements himself.

(Tr. at 114 (emphasis added).)

MS. BROWN: . . . [W]e are responsible to protect the environment for all students, present and future. Mr. Monahan, you see it in the report and in the response, does not appear to acknowledge the potential — well, the problem — not the potential problem — the problem with his behavior toward Ms. Holubar. Further, he doesn't appear to acknowledge the potential problems with asking out young students, some less than half his age, even after they tell him `no' or `nah' or `no thanks' or, `I've got a boyfriend.' Okay? But again, all that's doing [presenting the experience of others] is leading to credibility. The decision was made based on what Ms. Holubar went through.

(Tr. at 122-23 (emphasis added).)

MALE [COMMITTEE MEMBER]: I do have a question. You said that termination was the best solution for a prompt reaction. Why was not a severe reprimand considered as an option?

MS. BROWN: It was considered as an option.

MALE [COMMITTEE MEMBER]: Why was that not pursued?

MS. BROWN: Because of the fact that this behavior was pervasive, all right? It occurred over a two-year period. It was not an isolated incident. Because we had indication that it may have occurred toward other witnesses. Again, those witnesses did not file complaints so I didn't make a finding on those, but those witnesses lent credibility to Ms. Holubar's statement.

(Tr. at 124-25 (emphasis added).)

FEMALE [COMMITTEE MEMBER]: . . . [D]id you [Ms. Brown] interview anybody else — and again, correct me if this is not relevant — besides Susie Holt, is that her name, that had been pursued by Michael? . . .

MS. BROWN: Yes, and I can refer to it in the report. There were actually — actually referred to, I think there were five women who ultimately said that they had been asked out by [Mr. Monahan]. . . .

FEMALE [COMMITTEE MEMBER]: . . . Did they have similar reactions that Chrissy did?

MS. BROWN: There was one who had the most — There were a couple that used terms like `ick' or `creepy', but there was one who had a very similar response to Ms. Holubar. Yeah.

(Tr. at 132-33 (emphasis added).)

MR. MONAHAN: Would you [Committee Chair] ask Ms. Brown who were the six women who claimed that I asked them out?

MS. OAKES: [to Ms. Brown] Can you tell us who the six witnesses were?

MS. BROWN: I can. . . . It's not six [witnesses]. It's five. I'm on page six of my report. It says `Five witnesses including staff, faculty, and students state that Monahan asked them out on dates.' They are Elizabeth Peterson, Midori Watanuki, Wendy Miller, Winnie McDonald, and as you already knew, Suzanne Holt. . . .

MR. MONAHAN: Just another question for Ms. Brown. Why aren't they here?

MS. OAKES [to Ms. Brown]: Is there a reason that you didn't call them as witnesses?

MS. BROWN: . . . I, in looking at all my witnesses, chose to just pick a few because I wanted Chrissy and I to have most of the time. I thought that was the best evidence. But of these five, there is one individual who I did want to be here and would have been here if it weren't for the fact that she is out of town. She . . . had a very similar response; and that's Wendy Miller. . . .

(Tr. at 134-35 (emphasis added).)

FEMALE [COMMITTEE MEMBER]: [D]id [Wendi Miller] confront Michael about her feelings and did he stop there? . . .

MS. BROWN: . . . [T]he answer to the question is yes, she did object to the behavior. She did tell him no. . . .

FEMALE [COMMITTEE MEMBER]: And in her opinion, did he stop after that?

MS. BROWN: No, he did not. . . . She is the visual resources curator. [Reading from Ms. Miller's statement to Ms. Brown:] `I started five years ago. He started asking me out. I told him I didn't want to. He'd get rude or mean. He wouldn't get things for me or help me, things he should have done. He sends me to someone else.' I mean, you're remembering this now. It's in the report. You didn't know who it was. [Continuing reading from Ms. Miller's statement to Ms. Brown:] `He wants an explanation as to why I don't want to go out with him. Then he gets upset and won't help us, not even light bulbs. I keep telling him `no' when he asks me out. I try to stay away from him. About six months ago was the most recent time he asked me out. Now I have a faculty member asking for help alone, or with me.' So, I mean, you've got the relevant parts in your report, but now you know who it is.

(Tr. at 136-37 (emphasis added).)

FEMALE [COMMITTEE MEMBER]: I have a question for you [Mr. Monahan] about the word `no.' In your response to . . . the allegation in question No. 2, it said that four women reported that after they had told you `no' you continued to ask them out. Then three of those four indicate that your behavior was not offensive to them, but one said that she was uncomfortable. In your response to that, you say, `I categorically deny having asked anyone out after they have clearly declined or said `no." Is the word `no' clear or does it take more than the word `no' to be clear?

Tr. at 156-57 (emphasis added).

MS. BROWN: . . . Ms. Holubar has had extreme discomfort throughout this experience, not just the investigation, but the two years, and the witness statements have added credibility to Ms. Holubar, especially when you consider a woman who does not know her. That woman who had a similar experience and similar impact, Wendy Miller, doesn't know her from Eve. Okay? So they didn't get together and come up with this statement. Totally isolated events, similar events with Mr. Monahan.

Tr. at 160-61 (emphasis added).

The Committee agreed with the OEO/AA and found that Mr. Monahan violated the University's sexual harassment policy by creating a hostile work environment for Ms. Holubar. But the Committee also recommended that the decision to terminate Mr. Monahan's employment be overturned and that a lesser disciplinary action be taken against Mr. Monahan. (See Oct. 22, 2001 Mem. from Committee to Univ. Sr. V.P. David Pershing, attached as Ex. 1D to the Haggerty Due Process Decl. [hereinafter "Committee Report"].)

Senior Vice President Pershing's Decision

The Committee Report was sent to Dr. Pershing, as was the OEO/AA Report. The record is not clear regarding whether Dr. Pershing reviewed anything other than those two documents,⁷ although it is clear that the materials reviewed by Dr. Pershing did not include the hearing transcript. (Dep. of David W. Pershing at 22 (attached as Ex. 5 to Pl.'s Combined Compilation of Dep. Testimony Relating to Pending Mots. For Summ. J.).)

7 As noted earlier, Mr. Monahan's counsel Lincoln Hobbs send a letter to Dr. Pershing prior to the hearing, in which Mr. Hobbs complained of alleged procedural deficiencies in the investigation process. Because that letter was written and sent before the hearing, it did not raise the additional procedural concerns that Mr. Monahan now raises before the court. Nothing in the record shows that the deficiencies in the hearing process were brought to the attention of Dr. Pershing.

On November 5, 2001, Dr. Pershing issued his decision. (See Nov. 5, 2001 Letter from Pershing to Monahan, attached as Ex. 7 to Decl. of Morris O. Haggerty in Supp. of Defs.' Mot. For Partial Summ J.: The Individuals Defendants are Entitled to Qualified Immunity Regarding Attorney Representation [hereinafter "Haggerty Qualified Immunity Decl."].) He determined that Mr. Monahan had, more likely than not, created a hostile environment for Ms. Holubar in violation of University Policy. But he disagreed with the OEO/AA's termination recommendation and the Committee's sanctions recommendation.

Instead, he recommended that Mr. Monahan be removed from his position in the Art Department and placed in another appropriate position at the University with assistance from the University's Human Resources Department. If the search for a different position was not successful within six months, Mr. Monahan was to be reassigned to another position within the College of Fine Arts where he would not have any contact with Ms. Holubar. After Ms. Holubar completed her degree, the College of Fine Arts would have the discretion to move Mr. Monahan back to his original position within the Department of Art. During the six-month search for a job, Mr. Monahan was to receive half of his salary beginning from the date of Dr. Pershing's November 5, 2001 letter. Any loss in pay would constitute a fine for his conduct. He also received a final written warning that similar behavior toward Ms. Holubar or anyone else would result in termination of his employment, and if he retaliated against Ms. Holubar in any way, he would lose his job. (Id. at 3.)

According to Dr. Pershing's deposition testimony, his decision was based, at least in part, on an understanding that more than one person had complained of Mr. Monahan's conduct, an assumption he gained from reviewing all of the documents before him, including the OEO/AA Report.

Q You're [sic] understanding is that more than one other person had complained of [Mr. Monahan's] conduct?

A Yes. That's my memory, although this was a long time ago.

Q Okay. And you based your determination on the assumption that there were numbers of individuals; correct?

A I did.

Q Might your determination have been different if, in fact, there was one other individual who had ever complained of Michael Monahan?

A No, I'm sorry, it would not have.

Q Okay. Would it have mattered in your determination respecting the nature of the severity of the conduct?

A Yes, I did take that into consideration. . . .

Q Okay. And your understanding [that there was a hostile environment] came from the OEO report; correct?

A It did.

Q Anyone else?

A Well, from the OEO report and from the hearing committee conclusion.

(Pershing Dep. at 19, 22.)

In his letter to Mr. Monahan, Dr. Pershing stated that "[u]nder [University Policy] PPM 2-32 it is your right to appeal this decision by filing a written request with OEO/AA for presidential review. You must file any such request within ten days after you receive this decision. If you do not file a request within that time, this decision is the final and binding decision of the University of Utah." (Nov. 5, 2001 Letter at 3.)

Mr. Monahan filed a request for appeal to President Machen, so Dr. Pershing's decision did not become the final and binding decision of the University. Instead, Dr. Pershing's letter, along with other documentation, was forwarded to President Machen for review.

Mr. Monahan's Appeal to President Machen and President Machen's Decision

University policy sets forth the procedure for appeal to and review by the President in Part VIII.B of Policy 2-32:

1. . . . Upon [a party's] request [for review], the vice president shall transmit to the president the final decision as well as the entire record of the matter including the Committee's findings, and recommendations. The vice president shall also provide written justification for the final decision if it is inconsistent with that of the Committee.

2. The president shall consider and review the record in its entirety, and may solicit whatever counsel and advice the president deems appropriate to assist in arriving at a final determination. Neither the president nor vice president may base a decision on confidential information unless the nature of that information is fairly communicated to the parties and a reasonable opportunity to respond is given to the parties.

(University Policy 2-32R7. VIII.B. (emphasis added).) The University's policies provide that "disciplinary actions should not be disproportionately severe in relation to the grounds for their imposition, and should give due consideration to any special considerations that may tend to reduce the seriousness of the employee's actions or omissions." (Compl. ¶ 41.)⁸

8 Defendants admitted the allegation in paragraph 41 in their Answer.

Mr. Monahan's timely request for an appeal to President Machen consisted of a one-sentence sentence letter to the OEO/AA stating the following: "Pursuant to University of Utah Policy and Procedures 2-32, I am requesting a Presidential review of Senior Vice President David Pershing's decision which I received on November 8, 2001." (Nov. 9, 2001 Letter from Monahan to Thomas Loveridge, Director of OEO/AA, attached as Ex. 15 to Haggerty Due Process Decl.) There was no further correspondence by Mr. Monahan or his counsel to President Machen.

The University Department of Human Resources put together the file for President Machen to review. The record before him apparently consisted of (1) Ms. Holubar's charge of discrimination against Mr. Monahan;⁹ (2) Mr. Monahan's reply to Ms. Holubar's allegations; (3) the OEO/AA Report; (4) the Committee Report; and (5) Vice President Pershing's November 5, 2001 Letter to Mr. Monahan. (Dep. of J. Bernard Machen at pp. 14-15, attached as Ex. 4 to Pl.'s Combined Compilation of Dep. Testimony Relating to Pending Mots. For Summ. J.).)

9 Plaintiff objects to this document on the grounds that it is hearsay. (See, e.g., Pl.'s Mem. In Opp'n to Def. Machen's Mot. For Summ. J. at p. 6 ¶ 14.) Apparently, the charge of discrimination, although reviewed and signed by Ms. Holubar, was not written by her. Rather, it was written by a third party who summarized Ms. Holubar's allegations based on a conversation Ms. Holubar had with Andrea Brown at the OEO/AA office. There is nothing requiring the University President to adhere to the rules of evidence when reviewing the record. And because the charge of discrimination is not being considered by the court for the truth of the matter asserted, Plaintiff's objection is without merit.

President Machen issued his decision to Mr. Monahan in November 2001. (See Nov. 27, 2001 Letter from Machen to Monahan, attached as Ex. 1E to Haggerty Due Process Decl.) He stated:

After considering your request, I affirm the finding of Senior Vice President Pershing that you engaged in sexual harassment. I disagree, however, with the sanction stated in the Senior Vice President's decision. I agree instead with the sanction recommended by the Office of Equal Opportunity and Affirmative Action and originally imposed by Associate Vice President and Dean Haskell and Acting Chair Peterson. Your employment with the University is therefore terminated effective August 22, 2001. This is the University's final decision in this matter.

(Id. (emphasis added).)

Apparently, during the time President Machen reviewed the materials relating to Mr. Monahan's case, his office received two facsimile communications regarding Mr. Monahan's case. But President Machen testified that he never saw the correspondence, did not know the contents of the correspondence, and did not know who sent the correspondence. He based his decision on the finite record before him and nothing else. He did not discuss the case with anyone during his review. (See, e.g., Machen Dep. at 6-7, 11-12.)

President Machen said that he decided termination was the appropriate sanction because, among other things, at every level of review it was concluded that Monahan more likely than not sexually harassed Ms. Holubar. (Machen Dep. at 19, 34, 37.)¹⁰

10 Vice President Pershing, in his deposition, ventured that President Machen had a zero tolerance view of sexual harassment and that such a view may have played into President Machen's decision to terminate Monahan despite Pershing's recommendation of a less severe sanction. (See Pershing Dep. at 29.)

In December 2002, Mr. Monahan filed suit in state court. The action was removed to this court by Defendants in 2003.

ANALYSIS

Legal Standards

Summary Judgment

Federal Rule of Civil Procedure 56 permits the entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The court must "examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

Qualified Immunity

The qualified immunity doctrine "protects public officials performing discretionary functions unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'" Johnson v. Martin, 195 F.3d 1208, 1216 (10th Cir. 1999) (internal citations omitted). When a claim of qualified immunity is raised in the context of a motion for summary judgment, the court, viewing the evidence in a light most favorable to the nonmoving party, must first determine whether the plaintiff has sufficiently asserted the violation of a constitutional right. Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 841 (10th Cir. 2005). Then, if the plaintiff has done so, the court must determine whether the asserted right was clearly established at the time the defendant acted. Id. at 841-42.

The First Circuit recently articulated the same inquiry as a three-part test, which the court finds helpful in framing the analysis in this case. It stated: "We first consider whether the plaintiff's allegations, if true, establish a constitutional violation. The second question is whether the right was clearly established at the time of the alleged violation. Finally, we ask whether a similarly situated reasonable official would have understood that the challenged action violated that right."Whalen v. Massachusetts Trial Court, 397 F.3d 19, 23 (1st Cir. 2005) (emphasis added).

"When evaluating a qualified immunity defense, after identifying the constitutional right allegedly violated, courts must determine whether the conduct was objectively reasonable in light of clearly established law at the time it took place."Pierce v. Gilchrist, 359 F.3d 1279, 1297 (10th Cir. 2004) (emphasis added). "Requiring the law to be clearly established provides defendants with `fair warning' that their conduct is unconstitutional." Mimics, Inc., 394 F.3d at 842 (quoting Hope v. Pelzer, 536 U.S. 730, 739-40 (2002)). "The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as plaintiff maintains." Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003). To determine whether a constitutional right is clearly established, the Supreme Court recently noted, "its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has been held unlawful, but it is to say that in light of pre-existing law, the unlawfulness must be apparent." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (emphasis added). Put another way, the inquiry is "whether the law put officials on fair notice that the described conduct was unconstitutional." Pierce, 359 F.3d at 1298 (emphasis added).¹¹

11 If the law is clearly established, an official raising the defense may still claim "extraordinary circumstances" and avoid suit if he can prove that "he neither knew nor should have known of the relevant legal standard." Mimics, Inc., 394 F.3d at 842. "Extraordinary circumstances" may include reliance on a state statute or regulation or on legal advice. Id. But, "[i]t is the defendant's burden to claim such extraordinary circumstances and prove that his conduct was objectively reasonable." Id. The defense of extraordinary circumstances has not been raised in this case, and so the court will not address it.

The touchstone of the inquiry here is whether President Machen and Vice President Pershing were on notice that their conduct was unlawful. See Roska, 328 F.3d at 1248. "Although the best indicium of `fair notice' is whether the law was clearly established at the time of the constitutional violation, Harlow [ v. Fitzgerald, 475 U.S. 800 (1982),] makes clear that other factors may be relevant in determining the `objective reasonableness' of the state actor's conduct." Id. (emphasis added).

Importantly, the qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 343 (1986) (citing Harlow v. Fitzgerald, 475 U.S. 800 (1982)). A showing of negligence, even if it is gross negligence, is not sufficient to establish liability under 42 U.S.C. § 1983. Johnson v. Martin, 195 F.3d 1208, 1219 (10th Cir. 1999).

Also important is the requirement that Mr. Monahan (who bears the burden of establishing that the defendants violated a constitutional right, even on summary judgment)¹² "`do more than identify in the abstract a clearly established right and allege that the defendant has violated it.' A plaintiff `must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity.'"Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 517 (10th Cir. 1998) (internal citations omitted). Mr. Monahan's Section 1983 Claims

12 See Jantz v. Muci, 976 F.2d 623, 627 (10th Cir. 1992) ("A defendant government official need only raise the qualified immunity defense to shift the summary judgment burden to the plaintiff.").

Mr. Monahan brings two claims under Section 1983.¹³ Specifically, Mr. Monahan asserts that his procedural due process rights and his substantive due process rights were violated by the Defendants when he was investigated and ultimately fired from his position based on the assertion that he sexually harassed Ms. Holubar by subjecting her to a hostile environment.

13 "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983.

An important distinction between the parties' positions must be noted here. The Defendants assert that Mr. Monahan was investigated and found to have violated University Policy because he sexually harassed Ms. Holubar. Mr. Monahan asserts that the University took his case one step further and actually pursued its investigation and made its termination decision based on the University's theory that he was a serial harasser who had violated the University's sexual harassment policy more than once in the past and was a danger to students, staff, and faculty in the future. The Defendants deny that the University relied on a serial harasser theory when the OEO/AA pursued the investigation and the University ultimately terminated Mr. Monahan's employment.¹⁴ They maintain that any evidence relating to other purported victims of Mr. Monahan's conduct was used as evidence of Ms. Holubar's credibility, nothing more, and that the termination decision was based solely on a finding that Ms. Holubar more likely than not was subjected to a hostile environment by Mr. Monahan. As will be noted in more detail below, the court agrees, based on the record before it, that the University did pursue a serial harasser theory that tainted the proceedings and resulted in a violation of Mr. Monahan's due process rights.

14 But see Defendant University of Utah's Mem. in Support of Motion for Partial Summ. J.: Breach of Contract Claims at 19 ("Brown conducted a full investigation, tracking down factual information about Holubar's claims to see whether Monahan should be disciplined or exonerated but also tracking down information as to whether Monahan was a serial harasser and a danger to the student community.") (emphasis added); id. at 20 (noting that relevant question was "whether [Monahan] harassed Holubar or others, or the appropriate action (i.e., is he a danger in the future).") (emphasis added).

Procedural Due Process — Was a Constitutional Right Violated?

Mr. Monahan alleges that his procedural due process rights were violated at the pretermination stage and the post-termination stage of the proceedings.

Does Mr. Monahan Have a Protected Property Interest?

In order to maintain an action for violation of procedural due process rights, Mr. Monahan must first establish that he has a protected property interest. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Langley v. Adams County, Colorado, 987 F.2d 1473, 1480 (10th Cir. 1993). The parties do not dispute, and the court agrees, that Mr. Monahan had a property interest in his continued employment at the University. See Watson v. University of Utah Med. Ctr., 75 F.3d 569, 578 (10th Cir. 1996) ("Under Utah law an employment manual or handbook that provides employees cannot be fired except for cause can rebut the presumption of employment at will"); University Policy 2-32R7 II. (referencing University Policy and Procedures No. 2-9, Termination of Nonacademic Staff and Disciplinary Sanctions); Oct. 22, 2001 Hearing Committee Report to Pershing at 2 (noting that Mr. Monahan appealed a "Cause Finding" that resulted in his termination).

Mr. Monahan also asserts a liberty interest in his reputation and ability to obtain future employment. The parties presume, without analysis, that Mr. Monahan has a liberty interest. But the court may not make such an assumption. See Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999) (holding that court may not assume individual has protected liberty interest before determining whether due process was afforded).

To succeed on his claim that Defendants infringed on his liberty interest, Mr. Monahan must establish four elements. "First, to be actionable the statements must impugn the good name, reputation, honor, or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must bepublished." Watson, 75 F.3d at 579 (quoting Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994)) (internal citations omitted; emphasis added).

The court cannot discern, based on the record before it, whether the statements were false (in particular because of the court's concerns about the procedural due process afforded Mr. Monahan and the serial harasser theory espoused by the University), nor can the court decide whether the statements were published by the University (the record is not clear). Nevertheless, because the analysis of whether Mr. Monahan received procedural due process is the same for both his protected property interest and his purported liberty interest,see, e.g., Watson, 75 F.3d at 577, the court need not determine in this instance whether he had a liberty interest affected by the Defendants' actions. Mr. Monahan's protected property interest in continued employment at the University is sufficient to move on to the next part of the analysis. Was Mr. Monahan's Constitutional Right to Procedural Due Process Violated?

"The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'"Mathews v. Eldridge, 424 U.S. 319, 333 (1976). To determine the form of due process necessary, the court must balance the competing interests at stake: "the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43 (1985) (citingMathews v. Eldridge, 424 U.S. at 335).

In this type of case, a public employee who may only be discharged for cause must be given written or oral notice of the charges against him, an explanation of the employer's evidence, and a meaningful opportunity to be heard (either in writing or orally) by an impartial tribunal (i.e., an opportunity to present his side of the story to an unbiased decision maker).Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985);Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 517 (10th Cir. 1998); Langley v. Adams County, Colorado, 987 F.2d 1473, 1480 (10th Cir. 1993). "The procedural requisites and formality of pre-termination procedures vary depending on the importance of the interests involved and the nature of post-termination proceedings. Under Loudermill, the adequacy of pre-termination procedures must be examined in light of available post-termination procedures." Langley, 987 F.2d at 1480 (internal citation omitted). Because Mr. Monahan was given a post-termination¹⁵ evidentiary hearing in August 2001, the pretermination procedures, including the hearing, "need not be elaborate." Montgomery v. City of Ardmore, 365 F.3d 926, 935-36 (10th Cir. 2004) (quotingCleveland Bd. of Educ. v. Loudermill). Accordingly, these less demanding procedural requirements are acceptable if the more extensive post-termination proceedings given to the individual were procedurally sound.

15 This assumes that the August 16, 2001 letter to Mr. Monahan from Phyllis Haskell and Elizabeth Peterson actually served to terminate him effective August 22, 2001. The record is not altogether clear. Even if Mr. Monahan was not terminated until President Machen's decision announced in his November 27, 2001 letter, the court would analyze the situation similarly, so the actual date of the final termination decision is not important here.

The amount of pretermination procedural due process given to Mr. Monahan¹⁶ would have been sufficient if the post-termination procedures were sound.¹⁷ See, e.g., Powell v. Mikulecky, 891 F.2d 1454 (10th Cir. 1989):

16 Shortly after Ms. Holubar filed her April 26, 2001 discrimination complaint, Mr. Monahan received written notice of the discrimination complaint on May 11, 2001, from Andrea Brown of the OEO/AA. He responded in writing by facsimile to Ms. Brown on the same day. He also responded orally through telephone conversations with Ms. Brown on May 11, 2001, and June 21, 2001. Further, on August 3, 2001, Ms. Brown sent Mr. Monahan a copy of the OEO/AA Report (which was much more detailed than Ms. Brown's initial notice of the charges) and gave him another opportunity to respond. Mr. Monahan did respond in writing through an August 17, 2001 letter to Vice President Pershing written on his behalf by his legal counsel, Lincoln Hobbs. All of this occurred before Mr. Monahan's employment was terminated by the University.

17 Among other things relating to the pretermination procedures, Mr. Monahan contends that the August 16, 2001 letter notifying him that his impending termination would be effective on August 22, 2001, violated his due process right to respond by cutting short his ten-day response time. He asserts that he was not allowed to respond within a meaningful time before termination. Even assuming the termination occurred when the August 16, 2001 letter was issued rather than when President Machen issued his decision on November 27, 2001, this has no bearing on the court's analysis. Mr. Monahan did respond before he was terminated on August 22, 2001 (through Mr. Hobbs' August 17, 2001 letter). The fact that his effective termination date may have cut short Mr. Monahan's ten-day response time is of no matter in the federal due process context, because violation of internal procedures does not necessarily constitute a deprivation of a person's federal due process rights. See, e.g., Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 522 (10th Cir. 1998) ("a university's failure to follow its established guidelines in overseeing grievance `does not in and of itself implicate constitutional due process concerns'").
Mr. Monahan also contends that when he was initially notified of Ms. Holubar's discrimination complaint, he was given seventy-two hours over a weekend to respond and that did not give him an opportunity to obtain counsel to assist in his response. Mr. Monahan has not stated a due process violation, in particular because there is no automatic right to counsel at the pretermination stage, particularly in light of post-termination procedures available. See, e.g., Frumkin v. Board of Trustees, Kent State Univ., 626 F.2d 19, 22 (6th Cir. 1980); White v. Health Midwest Dev. Group, 889 F. Supp. 1439, 1445 (D. Kan. 1995).

[In Loudermill], the [United States Supreme] Court was careful to point out that "the pretermination hearing need not definitively resolve the propriety of the discharge." Rather, the central purpose of the pretermination hearing is merely to serve as "an initial check against mistaken decisions — essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action."

The pretermination hearing is merely the employee's chance to clarify the most basic misunderstandings or to convince the employer that termination is unwarranted. The pretermination hearing is intended to supplement, not duplicate, the more elaborate post-termination hearing. Because the post-termination hearing is where the definitive fact-finding occurs, there is an obvious need for more formal due process protections at that point. To duplicate those protections at the pretermination stage would cause unnecessary delay and expense while diffusing the responsibility for the ultimate decision to terminate the employee. The idea of conducting two identical hearings runs counter to traditional principles of adjudication.

Powell, 891 F.2d at 1458 (internal citations omitted). But the court finds that the post-termination hearing did not satisfy constitutional due process requirements in this case.

In this case, given the nature of the accusations against Mr. Monahan (Ms. Holubar's sexual harassment complaint and the University's theory that Mr. Monahan was a serial sexual harasser), the hearing was constitutionally inadequate. Mr. Monahan, whose livelihood and reputation were on the line, did not have the ability to cross-examine all of the adverse witnesses whose testimony was offered at the hearing, nor did he have the opportunity to have his attorney represent him at the hearing. See, e.g., McClure v. Independent Sch. Dist. No. 16, 228 F.3d 1205, 1211-1212 (10th Cir. 2000) (holding that use of affidavits containing accusations that "might stain a reputation and threaten a livelihood" deprived school teacher of due process at termination hearing because she did not have opportunity to cross-examine all adverse witnesses; also noting that a full post-termination hearing should include the right to representation by an attorney).

Here, stigmatizing allegations of serial sexual harassment were made at a termination hearing against a veteran employee (who had little or no notice of all of the witnesses or the nature of their testimony). The risk of an erroneous deprivation and Mr. Monahan's interest in retaining the position he held for twenty-four years outweighed the University's interest in reducing administrative burdens.¹⁸

18 The University claims that the lack of notice was justified by witnesses' reluctance to come forward. The record is unclear as to whether the absent witnesses were in fact reluctant to testify, but the University's overall interest in protecting witnesses does not outweigh an individual's right to confront his accusers at an evidentiary hearing deciding that individual's employment fate and affecting the employee's reputation.

Defendants contend that Mr. Monahan received all the due process he had a right to because he was allowed to cross-examine his accuser, Ms. Holubar. The Defendants assert that the absent witnesses were not "key" witnesses (purportedly their testimony was presented merely to lend credibility to Ms. Holubar's testimony). The court finds that the University pursued a serial harassment theory that made the absent witnesses key to the case against Mr. Monahan. In other words, he had more than one accuser. He was not given the opportunity to confront the other accusers, and that was a violation of his due process rights.

The Defendants claim that the recommendations and decisions made throughout this process were based solely on the finding that Mr. Monahan harassed Ms. Holubar and nothing else. The court does not find this argument persuasive. Nothing in the Hearing Committee's report to Vice President Pershing reveals, one way or the other, what testimony the Committee based its decision on. There is simply no way of knowing whether the Hearing Committee took into account the evidence presented by the University to suggest that Mr. Monahan was a serial harasser and a danger to others in the future. Indeed, there is evidence that other participants in the process, including Ms. Brown, the OEO/AA office, and Vice President Pershing did take the serial harasser concerns into account in determining what sanction would be appropriate. (See e.g., OEO/AA Report; Pershing Dep. at 19, 22.) The questionable evidence tainted the process and the end result.

Defendants also argue that Mr. Monahan waived his right to cross-examine the witnesses at the hearing because he did not request their presence pursuant to his rights under University Policy. In this case, some of the witnesses were not identified, nor was the nature of their testimony and allegations, before the hearing. His waiver of a constitutional right, to be valid, would need to be knowing. See Nose v. Attorney General of the United States, 993 F.2d 75, 79 (5th Cir. 1993). Given the lack of notice of the absent witnesses' identities and nature of their testimony, the court finds that Mr. Monahan did not waive his right to cross-examine the absent witnesses. The cases of West v. Grand County, 967 F.2d 362 (10th Cir. 1992), and Prebble v. Brodrick, 535 F.2d 605, 616 (10th Cir. 1976), upon which Defendants rely, are distinguishable. In Grand County, it appears there were no obstacles to the plaintiff calling a known witness to the hearing. In Prebble, the employee made admissions that nullified the need to cross-examine witnesses who would have testified on the very same issue that the plaintiff had already admitted. Here, Mr. Monahan did not admit to the allegations of serial sexual harassment, and he contested aspects of Ms. Holubar's allegations. Accordingly, the court rejects Defendants' contention that Mr. Monahan waived his right to cross-examine the absent witnesses.

In short, the court finds that the University violated Mr. Monahan's procedural due process rights.¹⁹ Because the record was tainted by the procedurally inadequate hearing, the subsequent decisions made by Vice President Pershing and President Machen, who relied on the report of the Hearing Committee, as well as other items in the record including the OEO/AA Report (but not the hearing transcript), were also procedurally infirm under the Due Process Clause.²⁰ But the question of President Machen's and Vice President Pershing's qualified immunity remains.

19 The Defendants suggest that the result would have been the same even if all the procedures requested by Mr. Monahan were offered, and so, they argue, there was no damage to Mr. Monahan. But the issue of damages is not before the court. Moreover, in light of the court's holding that the individual defendants have qualified immunity, consideration of the argument in support of the University's defense would be fruitless, because the Plaintiff may not receive monetary damages from the University.

20 Mr. Monahan asserts that President Machen's decision to impose a more severe sanction on appeal (i.e., termination as opposed to the sanctions imposed by Vice President Pershing's decision) violated his due process rights. Such a violation can occur only if the sanction was increased as a result of actual vindictiveness on the part of the decision maker. Yu v. Peterson, 13 F.3d 1413, 1416-1417 (10th Cir. 1993). Mr. Monahan has not provided any evidence (although he presents much speculation) to counter the University's evidence that the decisions were not based on any motive of vindictiveness. Accordingly, President Machen's decision to increase the sanctions was not a violation of Mr. Monahan's due process rights. The same analysis and conclusion applies to Mr. Monahan's claim that Vice President Pershing's increase of sanctions above those recommended by the Hearing Committee also violated Mr. Monahan's due process rights.

Procedural Due Process — Was the Right Clearly Established?

"When evaluating a qualified immunity defense, after identifying the constitutional right allegedly violated, courts must determine whether the conduct was objectively reasonable in light of clearly established law at the time it took place." Pierce v. Gilchrist, 359 F.3d 1279, 1297 (10th Cir. 2004) (emphasis added). "Requiring the law to be clearly established provides defendants with `fair warning' that their conduct is unconstitutional." Mimics, Inc., 394 F.3d at 842 (quoting Hope v. Pelzer, 536 U.S. 730, 739-40 (2002)). The "fair warning" factor requires that the court consider "whether a similarly situated reasonable official would have understood that the challenged action violated that right." Whalen v. Massachusetts Trial Court, 397 F.3d 19, 23 (1st Cir. 2005) (emphasis added). The record in this case shows that a reasonable person in the position of President Machen and Vice President Pershing would not have understood that making a decision on the record before them violated Mr. Monahan's due process rights.

Neither President Machen nor Vice President Pershing had any connection to the investigation or hearing. Their only roles were to review the record provided to them and make a decision based on that record and University policies and procedures.

Mr. Monahan asserts that President Machen and Vice President Pershing violated his constitutional rights because they did not provide him with a meaningful opportunity to be heard by an unbiased decision maker. Specifically, he contends that they did not review the entire record, that they were in a position to take action to correct the procedural infirmities that occurred at the hearing, and that, despite their failure to do either, they recommended termination based on a flawed record. Mr. Monahan is asserting an alleged right to have Vice President Pershing and President Machen review the entire record, including the transcript of the hearing, before making their decisions on his employment status. He also contends that President Machen was a biased decision maker because of President Machen's purported relationship with Dean Haskell.

In determining whether the right asserted by Mr. Monahan is clearly established, the court must determine whether Vice President Pershing and President Machen either knew or had reason to know that the procedures followed below were constitutionally inadequate. Johnson v. Martin, 195 F.3d 1208, 1216 (10th Cir. 1999) (qualified immunity doctrine "protects public officials performing discretionary functions unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'") (internal citations omitted; emphasis added).

As noted earlier, the touchstone of the inquiry here is whether President Machen and Vice President Pershing were on notice that their conduct was unlawful. See Roska, 328 F.3d at 1248. "Although the best indicium of `fair notice' is whether the law was clearly established at the time of the constitutional violation, Harlow [ v. Fitzgerald, 475 U.S. 800 (1982),] makes clear that other factors may be relevant in determining the `objective reasonableness' of the state actor's conduct." Id. (emphasis added). The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 343 (1986) (citing Harlow v. Fitzgerald, 475 U.S. 800 (1982)). A showing of negligence, even if it is gross negligence, is not sufficient to establish liability under 42 U.S.C. § 1983. Johnson v. Martin, 195 F.3d 1208, 1219 (10th Cir. 1999).

Nothing in the record suggests that either individual knew or should have known about the procedural infirmities that tainted the reports they were reviewing, or that a reasonable person in their circumstances would have or should have known of the procedural problems tainting the record. It is possible that, if they had reviewed the transcript (which they did not), they would have had sufficient notice of the problem and would have been in a position to fix it. Even though the University policy required forwarding the entire record to the decision makers and required the decision makers to base their decisions on the full record, (see, e.g., University Policy 2-32.VIII.B.2 ("The president shall consider and review the record in its entirety.")), failure to follow University procedures does not in and of itself rise to the level of a constitutional violation. See Tonkovich, 159 F.3d at 522 ("a university's failure to follow its established guidelines in overseeing a grievance `does not in and of itself implicate constitutional due process concerns.'"); Atencio v. Board of Educ. of Penasco Ind. Sch. Dist. No. 4, 658 F.2d 774, 779 (10th Cir. 1981) (same); Bates v. Sponberg, 547 F.2d 325, 331 (6th Cir. 1976) ("mere departure from the university regulations, standing alone, did not deprive [the plaintiff] of any right which can be asserted in this [federal] court").

Moreover, President Machen's and Vice President Pershing's failure to review the evidence in the form it was presented to the Hearing Committee did not per se constitute a due process violation. See Bates, 547 F.2d at 332-33 (holding that summary of evidence in a report provided by the grievance committee and university president to the university board of regents "provided a sufficient basis for the Board of Regents to acquire a `personal understanding' of the evidence supporting the charges against [the plaintiff].") As the United States Supreme Court noted in Morgan v. United States, 298 U.S. 468 (1936), "[the] necessary rule [that "the one who decides must hear" the evidence in order to provide a meaningful review] does not preclude practicable administrative procedure in obtaining the aid of assistants in the department." 298 U.S. at 481, quoted in Bates, 547 F.2d at 332. Essentially, the ultimate decision maker may delegate the duty of reviewing the complete record and summarizing the substantive aspects in a manner that provides a "sufficient basis for the decision maker to acquire a `personal understanding' of the evidence. . . ." Bates, 547 F.2d at 333. The court agrees with the Bates court's assessment of the issue:

We think the crux of the issue, in terms of due process under the Fourteenth Amendment, is not whether the due process hearing to which Professor Bates may have been entitled was held in the presence of the authority having final responsibility to determine his discharge, but instead whether the hearing accorded him was meaningful. We believe this question must be measured in terms of the issue to be decided, who is ultimately to decide it, and the manner by which the hearing is employed in the decisional process, in light of the realities of efficient administration in modern government. We thus agree with Professor Davis [author of Administrative Law treatise] in the interpretation which he places upon Morgan:

The [Morgan] court declared: "Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates." Since the only purpose of shifting and analyzing of evidence by subordinates is to save the time of the deciding officers, this necessarily means that deciding officers may "consider and appraise" the evidence by reading a summary or analysis prepared by subordinates.

Bates, 547 F.2d at 332 (quoting 2 Davis Administrative Law § 11.03 at 44-45 (1958)) (emphasis added). In Mr. Monahan's case, the record does not show that President Machen and Vice President Pershing were aware of the underlying procedural problems tainting the findings reported to them. The Committee Report provides no notice to either decision maker that the information they were reviewing was tainted. To their eyes, their subordinates, who were properly delegated the duties of reviewing and summarizing the evidence and making a recommendation, had fulfilled all the necessary duties. The situation here, when viewed in its entirety, shows that a procedural due process violation occurred, but under qualified immunity rules, President Machen and Vice President Pershing are immune because they did not know, and a reasonable person in their positions would not have known, that the evidence they reviewed was tainted.

As for the issue of attorney representation at the hearing, the same notice analysis applies. In addition, neither President Machen nor Vice President Pershing had any role in drafting the University policy that prohibits attorney representation at the evidentiary hearing. There is no affirmative link (as required by 42 U.S.C. § 1983), between their actions and the deprivation of Mr. Monahan's right to have an attorney represent him at the hearing. See Ledbetter v. City of Topeka, Kansas, 318 F.3d 1183, 1187 (10th Cir. 2003) ("a plaintiff must show that an affirmative link exists between the [constitutional] deprivation and either the [defendant's] personal participation, his exercise of control or direction, or his failure to supervise.") (internal citation omitted).

Finally, the record does not support the proposition that President Machen was biased in his decision-making or that he had any conflict based on the alleged connection between him and Dean Haskell (the evidence shows there was no material professional or personal relationship between President Machen and Dean Haskell).

The court finds that both Vice President Pershing and President Machen are entitled to qualified immunity from suit. According, the Defendants are entitled to summary judgment on that issue.

Substantive Due Process — Was a Constitutional Right Violated?

In order for Mr. Monahan to show that his substantive due process rights were violated, he must show that he had an interest protected by substantive due process law, and, if so, the actions that deprived him of that right "shock the conscience."Tonkovich, 159 F.3d at 528. "[T]he threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998), quoted by Tonkovich, 159 F.3d at 528. "To satisfy this standard, `a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misuing government power.'"Tonkovich, 159 F.3d at 528 (internal citation omitted) (emphasis added).

Mr. Monahan alleges that his substantive due process rights were violated because (1) President Machen and Vice President Pershing made their discretionary decisions without any written guidelines; (2) the University did not provide notice of its sexual harassment policy; and (3) the sanction ultimately imposed was not supported by the record.

In the Tenth Circuit, it is not clear that public employment is a right protected by federal substantive due process law.Hennigh v. City of Shawnee, 155 F.3d 1249, 1257 (10th Cir. 1998); Curtis v. Oklahoma City Public Sch. Bd. of Educ., 147 F.3d 1200, 1215 n. 17 (10th Cir. 1998). Moreover, even if Mr. Monahan had a protected interest in the substantive due process context, nothing in the record suggests that the actions highlighted by Mr. Monahan shock the conscience. The court also notes that the "Due Process Clause `is not a guarantee against incorrect or ill-advised personnel decisions.'" Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992) (quoted in Tonkovich at 534).

The court finds that there was no violation of Mr. Monahan's substantive due process rights. Accordingly, Defendants are entitled to summary judgment on Plaintiff's substantive due process cause of action. Mr. Monahan's Breach of Contract Claims Against the University

Breach of Contract

The parties do not dispute that the University Policies and Procedures constitute a binding contract between the University and Mr. Monahan. Mr. Monahan contends that the University breached various provisions of that contract.²¹ The court finds that the language at issue in Mr. Monahan's breach of contract claims is unambiguous and will interpret the plain language of those provisions as a matter of law. WebBank v. American Gen. Annuity Serv. Corp., 54 P.3d 1139, 1145 (Utah 2002); Interwest Construction v. Palmer, 923 P.2d 1350, 1358 (Utah 1996).

21 Defendants, in their Memorandum in Support of their Motion for Partial Summary Judgment regarding Plaintiff's Breach of Contract Claims, assert in their "Statement of Undisputed Fact No. 1" that they have provided the court with Mr. Monahan's list of alleged violations of University policy. Specifically, they cite to Exhibit 7 attached to the Haggerty Breach of Contract Declaration. That Exhibit 7 does not provide (nor does any other exhibit in the record) what Defendants state it provides. Rather, it lists the various ways in which Plaintiff alleges he was deprived of due process. This does not assist the court in determining exactly which provisions of the University Policy the Plaintiff is alleging were breached. The allegations in the Complaint do not shed light on this issue either. Accordingly, the court will define the scope of Plaintiff's breach of contract claims according to the policy provisions and actions discussed in the following briefs: Docket Nos. 76 (Motion regarding Breach of Contract claims), 77 (Memo in Support), 92 (Memo in Opposition), 103 (Reply), 140 (Defendants' Supplemental Reply), 147 (Plaintiff's Supplemental Reply).

120-Day Provision

Mr. Monahan alleges that the University violated University Policy 2-32, which provides, in relevant part, that "[a] complaint alleging harassment or discrimination must be filed within 120 days of the date of the last alleged occurrence." (University Policy 2-32. VI.A.2.) Specifically, he alleges that the University breached that provision by pursuing information concerning events that occurred more than 120 days before Ms. Holubar filed her discrimination complaint on April 27, 2001.

Mr. Monahan essentially interprets this provision to mean that all events constituting a finding of harassment must have occurred within 120 days of the complainant's charge of discrimination. This makes no sense, particularly given the nature of hostile environment sexual harassment, which is generally established by showing a series of events occurring over time rather than through a singular event or over an artificially finite period of time. To interpret the provision that way is to artificially limit hostile environment harassment claims to those that completely arise within 120 days or less.

Moreover, nothing in the provision's language limits the scope of the University's investigation. It simply places a limit on the University's pursuit of a claim where the last related event occurred more than 120 days before the discrimination charge was filed (and, even then, an exception exists for good cause shown).

In this case, the last event occurred on February 14, 2001, when Mr. Monahan sent a Valentine's Day card to Ms. Holubar. The date of February 14, 2001, fell well within 120 days of April 27, 2001. That is all the University must show. There was no violation of this provision.

Scope of the University's Investigation

Mr. Monahan alleges that the University improperly expanded the scope of its investigation by interviewing witnesses it was not allowed to interview under University Policy 2-32, which provides, in relevant part, that "[t]he OEO/ER shall interview the complaining party, the responding party and any other persons believed to have pertinent factual knowledge of the allegations and shall also review any other relevant evidence, including documentary material." (University Policy 2-32. VI.C.2.) As the University notes, "the policy merely provides the minimum requirements for an investigation. The policy does not limit the witnesses who may be interviewed during the investigation." (Defs.' Mem. in Supp. of Mot. for Partial Summ. J.: Breach of Contract Claims at 9.) The broad language of the provision ("shall also review any other relevant evidence") certainly encompasses what the University did in this case. The court finds there was no breach of this provision.

45-Day Investigation

Mr. Monahan alleges that the University violated the section of University Policy 2-32 that provides in relevant part that "[t]he OEO/ER shall endeavor to complete its investigation within 45 days of filing the complaint. If, for any reason, an extension is necessary, the parties will be notified in writing of the status of the investigation, and the probable date of completion." (University Policy 2-32. VI.C.3.) The parties do not dispute that the investigation, which began on or about May 8, 2001, lasted more than forty-five days. The parties also do not dispute that on June 29, 2001, Ms. Brown sent Mr. Monahan a brief memorandum that said the investigation and investigative report were not yet completed but that Ms. Brown hoped "to have this matter resolved in the near future." (June 29, 2001 Memorandum from Brown to Monahan, attached as Ex. 1A to Haggerty Breach of Contract Decl.)

The provision does not require that the investigation be completed in forty-five days, or that notice of a continuing investigation be provided within that forty-five day period. Apparently, Mr. Monahan takes issue with Ms. Brown's use of "in the near future" instead of providing an actual date. He asserts that "in the near future" did not satisfy the requirement that she notify Mr. Monahan of the "probable date of completion." The provision should not be read in such a technical manner. The University substantially complied with it. See Piacitelli v. Southern Utah State College, 636 P.2d 1063, 1065-66 (Utah 1981) (finding college's substantial compliance with personnel manual sufficient to defend against employee's action for reinstatement). There was no breach.

Ten-Day Response Period

Mr. Monahan alleges that the University violated the section of University policy that requires that the accused be given ten days after receipt of the summary of the OEO/AA's investigation (i.e., Andrea Brown's August 3, 2001 letter to Mr. Monahan) to respond in writing. University Policy 2-32.VI.C.3 reads: "At the conclusion of its investigation, the OEO/ER shall circulate a summary of its initial findings of fact, conclusions and recommendations to the complaining party and the responding party. Both parties shall have 10 days after receipt of the summary to submit written comments to the OEO/ER. The OEO/ER shall append the comments to the summary and thereafter transmit its report to the cognizant vice president."

Specifically, he alleges that the August 16, 2001 letter from the Art Department notifying him of his termination, effective as of August 22, 2001, demonstrates that the decision had already been made and so his reply on August 17, 2001 was not considered (and therefore not meaningful).²² This sounds more like a due process argument. The provision itself does not provide that the University may not place the employee on administrative leave or discharge the employee before the ten day period has expired. The University followed the plain language requirements of the provision. The University's Subjective Standard For Sexual Harassment Victim

22 He certainly cannot argue that the August 17^th deadline imposed in the August 3^rd letter provided a response period that was less than ten days.

Mr. Monahan asserts that he was improperly terminated despite any objective evidence of sexual harassment as defined by University Policy 2-6A (which imposes a subjective standard in the hostile environment sexual harassment context). This is not a Title VII sexual harassment case, and the court will not impose the Title VII objective standard on the University in its contract with employees. Mr. Monahan essentially seeks to re-try the sexual harassment charge in federal court using different standards than the University, in good faith, chose to prescribe for its employees. The court will not second-guess the University's choice to impose the subjective standard. See Uintah Basin Med. Ctr. v. Hardy, ___ P.3d ___, 2005 UT App 92, 2005 WL 487308 at *22-*23 (Utah Ct.App. Mar. 3, 2005) (declining to second-guess an employer's good faith business decisions);Simpson v. Western Graphics Corp., 643 P.2d 1276, 1279 (Or. 1982) (holding that employee handbook was binding on employee and that court would not take away the employer's fact-finding prerogative).

Vice President Pershing's Review of the Hearing Committee's Recommendations

According to the Defendants, Mr. Monahan contends that the contract was breached because Vice President Pershing did not consider or follow the Hearing Committee's findings and recommendations. (See Defs.' Mem. In Supp. Of Mot. For Partial Summ J.: Breach of Contract Claims at 16.) Mr. Monahan, however, does not dispute the fact that Vice President Pershing was not required to follow the Hearing Committee's recommendations. (See Pl.'s Mem. In Opp'n to Mot. For Partial Summ. J.: Breach of Contract Claims, at 7 ¶ 16.) Rather, Mr. Monahan apparently asserts that Vice President Pershing (and presumably President Machen) did not follow the portion of University policy that provides that "disciplinary actions should not be disproportionately severe in relation to the grounds for their imposition, and should give due consideration to any special considerations that may tend to reduce the seriousness of the employee's actions or omissions."²³ (See id.)

23 The parties did not provide the court with the section number or copy of the policy containing this language. In Plaintiff's Complaint, however, the language is quoted in paragraph 41, which the Defendants admit. Accordingly, the court accepts this undisputed language as part of the University Policy.

This language provides a great amount of discretion to the decision maker. The court will not second guess the good faith decisions of Vice President Pershing and President Machen. Mr. Monahan is asking the court to weigh in on a relatively subjective issue that is best left to the University and its decision makers. Nothing in the record supports Mr. Monahan's assertion that Vice President Pershing and President Machen abused that discretion. This is so particularly because the University policy specifically provided that termination was an option. (See University Policy 2-32.IX.A.)

Considering Confidential Information at the Presidential Appeal Level

The court finds that Mr. Monahan's assertion that President Machen considered and based his decision on confidential information, in violation of University Policy 2-32. VIII.B.2,²⁴ is unsupported by the record. Instead, the record supports Defendants' assertion that President Machen did not consider anything but what the Human Resources Department forwarded to him.

24 "Neither the president nor vice president may base a decision on confidential information unless the nature of that information is fairly communicated to the parties and a reasonable opportunity to respond is given to the parties."

Monahan's Claim That The Penalty Was Too Severe

Mr. Monahan apparently asserts that the University violated the contract by terminating his employment based on the record because the record did not support such a penalty. Mr. Monahan points to the provision that reads: "In discrimination and harassment cases, the corrective and remedial action that may be imposed upon a university faculty member, student, or staff member under this policy shall beappropriate to the circumstances and may include the imposition of a fine, suspension, or termination or expulsion." University Policy 2-32.IX.A (emphasis added). It is not disputed that termination was an option available to the decision makers. Instead, Mr. Monahan challenges the wisdom of President Machen's final decision. The decision made by President Machen fell within the discretion provided to him by the contract. As noted earlier, this court will not second guess a good faith business decision of the University. See Uintah Basin Med. Ctr. v. Hardy, ___ P.3d ___, 2005 UT App 92, 2005 WL 487308 at *22-*23 (Utah Ct.App. Mar. 3, 2005) (declining to second-guess an employer's good faith business decisions). Nothing in the record suggests that President Machen and Vice President Pershing made their decisions in bad faith. The court finds there was no violation of the provision.

Lack of Notice of and Training Regarding the University's Sexual Harassment Policy

Mr. Monahan contends that the University violated its policies by failing to provide notice of its sexual harassment policy to Mr. Monahan and other employees of the Art Department and by failing to provide sexual harassment training. He does not point to any provision in the University Policy that creates such a duty on the University, and the court will not read such a duty into the University policy. Failure to Identify Witnesses Before the Hearing

University Policy provides that "The [Hearing] Committee and each party may request the appearance of witnesses and the production of documentary evidence. Whenever possible, advance notice of witnesses to be interviewed shall be given to all parties." (University Policy 2-32.VII.D.4.) Mr. Monahan contends that this provision requires the University to disclose the identity of the witnesses before the hearing.

The University argues that "the plain language is broad enough to include notice of witnesses who will testify without actually disclosing their identity." (University's Supplemental Reply to Pl.'s Opp'n Mem. regarding Breach of Contract Claims at 5.) The University further contends that the provision's plain language "does [not] even require advance notice of witnesses as its language is permissive rather than mandatory." (Id.)

The court does not agree with the University's strained interpretation of University policy. It is not disputed that Mr. Monahan did not receive advance notice of all of the witnesses (the fact that he knew Ms. Holubar would be a witness does not excuse the University's failure to notify Mr. Monahan of other adverse witnesses, including Daniel Gerhart). There is evidence in the record to support a finding that it was indeed possible for the University to provide that notice to Mr. Monahan. Accordingly, the University is not entitled to summary judgment on this issue.

University's Choice to Pursue Negative Allegations Against Mr. Monahan

Mr. Monahan contends that the University violated University Policy 2-32.I, which states that "The Office of Equal Opportunity and Employee Relations (OEO/ER) . . . is responsible for providing a unitary, fair and expeditious process for investigating and resolving . . . claims of discrimination based upon . . . sex (including claims of sexual harassment). . . ." The fact that Ms. Brown may have pursued and relied only on negative testimony against Mr. Monahan does not in and of itself violate the above-quoted provision. The University is essentially in a prosecutorial position when it pursues claims filed by complainants. Nothing in the contract requires that the University present an equal amount of evidence for each side of the conflict.

Breach of the Implied Covenant of Good Faith and Fair Dealing

"In Utah, virtually every contract imposes upon each party a duty of good faith and fair dealing. . . . The obligation of good faith requires each party to refrain from actions that will intentionally `destroy or injure the other party's right to receive the fruits of the contract.' To determine the legal duty a contractual party has under this covenant, a court will assess whether a `party's actions [are] consistent with the agreed common purpose and the justified expectations of the other party. [Utah courts determine] the `purpose, intentions, and expectations' by considering `the contract language and the course of dealings between and conduct of the parties.'" Oakwood Village LLC v. Albertsons, Inc., 104 P.3d 1226, 1239-40 (Utah 2004) (internal citations omitted). The implied covenant of good faith and fair dealing "cannot be read to establish new, independent rights or duties" and "cannot create rights and duties inconsistent with express contractual terms." Id. at 1240.

Defendants state in a conclusory manner that if there is no breach of contract, it follows that the University is also entitled to summary judgment on Plaintiff's cause of action for breach of the implied covenant of good faith and fair dealing. But the court finds that, based on the record before the court, that the Defendants have not met their burden on summary judgment. It appears there may be support for a finding that the implied covenant was breached when the University pursued its serial harasser theory against Mr. Monahan based on only one formal charge of discrimination filed by one complainant. Nevertheless, the court does not rule, nor does it need to rule, on the merits of that issue. Defendants' Motion for Partial Summary Judgment regarding the Plaintiff's claim of breach of the implied covenant of good faith and fair dealing is denied.

Mr. Monahan's Punitive Damages Claim

Because the court has found that neither President Machen nor Vice President Pershing is liable under § 1983, Mr. Monahan's claim for punitive damages is moot. Accordingly, the Defendants are entitled to summary judgment on this claim as well.

Mr. Monahan's Motion to Strike the Second Declaration of Julene Persinger

The court did not rely on the content of Ms. Persinger's Second Declaration in its analysis. Accordingly, the Motion to Strike is denied as moot.

ORDER

1. Defendants' Motion for Partial Summary Judgment: Due Process is GRANTED IN PART AND DENIED IN PART:

a. The University of Utah's motion for partial summary judgment on the due process claims is DENIED;

b. President Machen and Vice President Pershing's motion for partial summary judgment on the due process claims is GRANTED. J. Bernard Machen and David W. Pershing are entitled to qualified immunity from suit. Plaintiff's claim for punitive damages is moot.

2. Defendant Machen's Motion for Summary Judgment is GRANTED.

3. The Motion for Partial Summary Judgment: The Individual Defendants are Entitled to Qualified Immunity Regarding Attorney Representation is GRANTED.

4. Defendant University of Utah's Motion for Partial Summary Judgment: Breach of Contract Claims is DENIED IN PART AND GRANTED IN PART.

5. Plaintiff's motion to Strike the Second Declaration of Julene Persinger is DENIED AS MOOT.