Opinion
111,404.
04-10-2015
Zamir BAVEL, Appellant, v. UNIVERSITY OF KANSAS, Appellee.
Curtis G. Barnhill, of Curtis G. Barnhill, P.A. of Lawrence, for appellant. Sara L. Trower, associate general counsel and special assistant attorney general, for appellee.
Curtis G. Barnhill, of Curtis G. Barnhill, P.A. of Lawrence, for appellant.
Sara L. Trower, associate general counsel and special assistant attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Contending he has a right to a hearing where evidence is presented and witnesses can be examined, Zamir Bavel, a tenured professor at the University of Kansas, appeals the district court's ruling affirming the Chancellor's discipline of Bavel for sexual harassment. Because Bavel received written notice of the complaint lodged against him, he had the opportunity to present reasons both in person and in writing why he should not be sanctioned, we hold the district court did not err in affirming the sanctions imposed on Bavel by the Chancellor of the University.
Bavel meets a student at a restaurant.
Bavel is a tenured professor teaching in the College of Liberal Arts and Sciences. Over the years he encouraged students to ask him for help and provided them with his email address and his cell phone number. At times, Bavel would meet with students outside of his regular office hours, usually in the evenings at a local restaurant.
On one occasion, a female student with the initials, B.C. met Bavel at the restaurant. B.C. later alleged that at the meeting Bavel had touched her in a sexual manner, and his behavior was unwelcome and it made her feel uncomfortable. She filed a sexual harassment complaint with the University.
Steve Ramirez, the Title IX Coordinator for the University's Department of Human Resources and Equal Opportunity, investigated B.C.'s complaint and also met with her. Additionally, Ramirez interviewed another student who witnessed the meeting between Bavel and B.C. Ramirez talked with the faculty member to whom B.C. had first reported the incident. Ramirez interviewed Bavel, reviewed the email correspondence between Bavel and B.C., and reviewed the notes taken by the faculty member to whom B.C. had first spoken. He also considered Bavel's written response to the complaint.
In July 2011, Ramirez completed his investigation and submitted his findings in a confidential investigation report. He concluded there was substantial evidence supporting the allegation. Ramirez recommended that Bavel:
• Be suspended for 2 weeks without pay;
• not be eligible for a merit increase in the next fiscal year; and
• be required to participate in a session with staff from Human Resources and Equal Opportunity regarding the University Policy Prohibiting Sexual Harassment, Title IX, and the University's Policy on Consenting Relationships.
Ramirez sent his report and recommendations to Danny Anderson, Dean of the College of Liberal Arts and Sciences.
For his part, Dean Anderson sent Bavel a letter telling him that he agreed with Ramirez that there was sufficient evidence to substantiate B.C.'s allegations and he, as dean of the college, accepted the recommended sanctions. But he gave Bavel an opportunity to offer any other pertinent information and reminded Bavel that there were limits to what he, as dean, could do:
“However, before I take action with respect to the sanctions recommended by HR/EO, I am offering you the opportunity to submit in writing any additional information you want me to consider. Such information will need to be provided to me before September 16, 2011.
....
“For the sanction of suspension without pay, as Dean, it is my role to recommend such a sanction to the Provost and the Chancellor.”
Bavel responded to Dean Anderson's letter disputing Ramirez' findings in a 5–page document entitled, “Response to Charges of Sexual Harassment.” After he received Bavel's response, Dean Anderson forwarded the recommended sanctions, along with the supporting materials, to Provost Jeffrey Vitter.
Provost Vitter then sent Bavel a letter stating that he agreed with the recommended sanctions. Vitter gave Bavel notice:
“This letter constitutes formal notice of my disciplinary recommendation to the Chancellor. I am informing you of your opportunity to request a hearing before imposition of the recommended sanctions....
“If you do not submit a request for a hearing before the Faculty Rights Board by 5:00 p.m. on October 11, 2011, then the recommended disciplinary sanctions will be imposed upon the Chancellor's approval.”
Bavel requested a hearing before the Faculty Rights Board. This request was entitled, “Request for Hearing of Appeal of Administrative Action.” His request included nineteen points supporting his position.
We pause at this point to clarify some of the acronyms used by the parties and the district court in this case. FRB stands for Faculty Rights Board. We will refer to it as the Board. FSRR means Faculty Senate Rules and Regulations. We will refer to them as the Faculty Rules. USRR is the acronym for University Senate Rules and Regulations. We will call these the University Rules.
Bavel's appeal of the findings and sanctions began at this point .
In response to Bavel's request for a hearing, the Assistant General Counsel for the University stated:
“[t]he decision to impose disciplinary action, including suspension, is a discretionary decision. The proposed suspension of Professor Bavel is in accordance with established University procedures and proper cause has been stated to support the suspension.
Professor Bavel's request for hearing has failed to identify any violation or prejudice that merits further examination by the FRB. Nowhere in his eleven page, nineteen point request for hearing did Professor Bavel identify any injury or prejudice to him that resulted from an alleged violation, as required by FSRR, FRB Procedure and USRR.
Accordingly, this request for hearing should be dismissed, or, in the alternative, decided on the written record that has been submitted.”
In November 2011, Mike Kautsch, Chair of the Board, provided Bavel an additional opportunity to specify with more particularity the University procedures he believed had been violated. Bavel responded:
• Ramirez failed to inform him of his right to identify witnesses and evidence;
• Ramirez did not act as an impartial investigator; and
• the investigation was not concluded in the 60–day timeframe.
After the University responded to Bavel's procedural allegations, the Board requested Bavel to provide some additional information.
Finally, the Board issued its findings in February 2012. The Board decided that the facts did not demonstrate any procedural violations, nor was there any information showing any prejudice to Bavel. Therefore, the Board did not grant an evidentiary hearing.
Following the Board's decision, Chancellor Bernadette Gray–Little accepted the sanctions recommended by Provost Vitter. In a letter dated March 9, 2012, Provost Vitter informed Bavel of the Chancellor's decision and stated his letter served as the notice of a final agency action.
Bavel seeks judicial review by the district court.
Bavel filed a timely petition for judicial review. In its resolution of the case, the district court divided Bavel's contentions into two issues:
(1) whether the University followed its own procedure; and
(2) whether this process violated Bavel's constitutional rights.
First, the district court noted the difference between Bavel's and the University's interpretations of the rules. Bavel contended he had an absolute right to a formal evidentiary hearing. The University argued that granting such a hearing was within the discretion of the Board. The district court agreed with the University and held that under the University's policies, the Board had the discretion to grant a hearing to Bavel. The district court then ruled that the University had thus complied with its own prescribed procedures.
Second, the district court addressed Bavel's claim of deprivation of property interest without due process of law. The district court held the essential requirements of due process in Bavel's case were notice and an opportunity to respond. The district court reviewed the various papers and correspondence and held that Bavel had received due process. Therefore, the district court denied Bavel's petition for review.
To us, Bavel argues the University's procedures allow for a hearing, and his rights were violated when he was denied a hearing. Bavel also contends that at such a hearing, the burden of proof is on the University to prove he has committed an act of sexual harassment.
The University argues it followed its prescribed procedures when it sanctioned Bavel. In the University's view, the term “hearing” does not mean a formal, adversarial, evidentiary proceeding; it only means notice and an opportunity to be heard. The University contends that Bavel received such a hearing. Second, the University claims the request for a hearing was part of the appeals process, and the Board is authorized to make a decision on an appeal without an evidentiary hearing.
We list the rules we will follow.
This action is brought as a judicial review of agency action according to the Kansas Judicial Review Act, K.S.A.2011 Supp. 77–601 et seq. Therefore, the burden is on Bavel to show the University's actions are invalid. K.S.A.2011 Supp. 77–621(a)(1). Bavel can receive relief in this case if he can show that the University has failed to follow its own procedures or has engaged in an unlawful procedure. K.S.A. 77–621(c)(5). We will examine this case as if it had been directly filed in this court. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
There is a mélange of rules and regulations at the University .
We look first at the University's Discrimination Complaint Process. Generally, sexual harassment (along with a host of other bad acts) is prohibited conduct for its faculty members. The complaint process indicates that the resolution of student-faculty complaints may include some or all of the following actions: informal inquiry and discussion, mediation (except in cases of sexual harassment), disciplinary action, or other appropriate action.
The Process states that upon receiving a complaint, the Office of Institutional Opportunity and Access shall conduct an initial evaluation of the merits of the complaint and determine the appropriate investigatory action required. A formal investigation will be initiated if a complaint is complete, timely, within the scope of this policy and articulates sufficient facts, which if determined to be accurate, would support a finding that the University's discrimination policies have been violated.
According to the Process, the investigation of these complaints will include the following steps:
• Notice to Respondent. The respondent will be provided with a statement of the complaint in writing, and the complainant will be provided a copy of this notification. The respondent will be provided an opportunity to meet with the investigator(s) investigating the complaint and to respond to the allegation. Respondents may respond in person or in writing within a reasonable time to be determined by the investigators. If a respondent chooses not to participate or refuses to answer a complaint, his/her nonparticipation will not prevent the investigation from proceeding and could result in a finding based solely on the information provided by the complainant.
• Notice regarding Retaliation. All parties to a complaint (complainant, respondent, witnesses, and appropriate administrators or supervisors) will be informed that retaliation by an individual or his/her associates against any person who files a complaint or any person who participates in the investigation of a complaint is prohibited. Individuals who engage in retaliation are subject to disciplinary action.
• Contact with Complainant. If the investigator did not speak with the complainant at the time that the complaint was received by the Office of Institutional Opportunity and Access, then the investigator will meet or speak with the complainant at the start of the investigation and throughout the investigation as appropriate.
• Representation. In any meeting with the investigators, the parties to the complaint (complainant and the respondent) may bring a representative to the meeting. If the representative is an attorney, the party must notify the Office of Institutional Opportunity and Access in writing at least three (3) working days before the meeting date.
• Information relevant to Investigation. The parties to a complaint (complainant and respondent) will be informed that they have the opportunity to identify witnesses, present witness statements, and any other evidence they believe relevant to resolution of the complaint. The investigator(s) will interview other persons whom the investigator(s) in his/her discretion determines to be necessary to gather relevant information. The investigator will review any written materials, e-mails or other media that as determined by the investigator in his/her discretion may provide relevant information regarding the complaint.
• Findings of Investigation. The investigator(s) will provide a written summary of their findings to the respondent and the complainant within a reasonable time following the conclusion of the investigation. In addition, the investigator(s) will provide a written report of the investigation findings and recommendations to the appropriate administrators within the University who will determine the appropriate action to be taken in light of the investigation findings and recommendations. The administrators will have twenty working days from receipt of the investigation findings and recommendations to determine, in consultation with the Office of Institutional Opportunity and Access, an appropriate resolution(s). Upon making their decision, the administrator(s) will provide written notification of their decision to both the respondent and complainant.
If a formal disciplinary action is imposed as a result of a finding of violation of the University's policies prohibiting discrimination and retaliation, then a respondent may request an appeal hearing. In this case, since Bavel is a faculty member, he could request an appeal hearing to the Board.
We turn now to the Procedures of the Board for Hearing Appeals From Administrative Actions. The jurisdiction of the Board is to consider appeals by faculty members from administrative actions that involve faculty rights, responsibilities, and conduct. (Procedures of the Faculty Rights Board for Hearing Appeals From Administrative Actions I. A.)
According to these procedures, the appellant must state in writing the grounds for the appeal and the basis for the jurisdiction of the Board. The grounds for an appeal are limited to allegations that action by an administrative authority violated established University procedures and adversely affected faculty rights. (III. A. Written Statement. 1.) The burden is on the appellant to demonstrate in the appeal that sufficient grounds exist to invoke the jurisdiction of the Board. (III. C. Burden of Establishing Jurisdiction for Appeal.)
These procedures also state that after all of the responses are filed with the Board, it can dispose of the appeal without a hearing (V.C.) Or the Board may initiate a hearing, if one is deemed necessary. (V.D.) If the Board has determined a hearing is warranted, the hearing shall serve as a fair opportunity for the appellant and the opposing parties to present their cases and arguments before the Board. (VI.A.) Witnesses could be called at such a hearing and examined. Again, at such a hearing, the burden is on the appellant to prove the allegations and assertions that he or she has made to the Board and the appellant's proof is to consist of clear and convincing evidence. (VI.E.)
The procedures followed here mirrored the policies set out above .
We reiterate the procedures followed in this case in order to show how they complied with the University's policies and procedures. B.C. filed a sexual harassment complaint against Bavel. Ramirez investigated the complaint. He spoke with all of the witnesses and collected written information pertinent to the allegations and Bavel's response. Ramirez concluded the complaint was substantiated and recommended to the Dean certain sanctions against Bavel for his act of sexual harassment.
In turn, Dean Anderson, the Dean of Bavel's College, received the report from Ramirez and agreed with it but gave Bavel the opportunity to submit to him any other matter that he should take into consideration about the complaint.
But, because of the loss of pay sanction recommended by Ramirez, which the Dean had no authority to impose, the matter passed on up the chain to Provost Vitter. At this point, Provost Vitter took the final agency action of recommending sanctions to the Chancellor. Provost Vitter informed Bavel of his right to appeal the action to the Board.
Bavel availed himself of that right and appealed. The Board twice asked Bavel to provide information, which he provided, and it ultimately decided his appeal without an evidentiary hearing. The Board decided that the policies and procedures of the University had not been violated. At this point, after the denial of Bavel's appeal, the Chancellor imposed the sanction by a directive to the Provost.
Thus, the University has followed all of the applicable rules and procedures in this case.
Bavel's chief complaint is that there was no hearing in his case where witnesses were called and examined, cross-examined, and the University would have to prove that his conduct merited sanctions. This proceeding in employment discipline is an administrative proceeding, not a formal criminal trial. Bavel cherry-picks portions of various sections of the University's rules that seemingly imply that everyone is entitled to a hearing, but ignores the sentence that states: “Specific procedures for each type of grievance or complaint that is within the jurisdiction of an established University body are set forth in the University Senate Rules and Regulations.” The established rules for the disposition of sexual harassment complaints are specifically set out in the Discrimination Complaint Process—a process that was followed in this case.
The United States Supreme Court has defined due process in cases where an employee seeks to stop a proposed disciplinary action of the employer. “The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.” Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
The University has not failed to follow its own procedures; therefore, under the Kansas Judicial Relief Act, K.S.A. 77–621(c)(5), Bavel is not entitled to relief.
Affirmed.
* * *
POWELL, J., dissenting:
I dissent from part of the majority's determination that the University provided Bavel with sufficient due process with respect to the deprivation of his property through the University's internal rules and procedures. While the University correctly followed its own procedures, such procedures did not constitute sufficient due process under the United States Constitution because the University did not provide Bavel with a post-deprivation hearing.
It is uncontested that Bavel's loss of pay due to his 2–week unpaid suspension and his ineligibility for a merit increase in the next fiscal year represent property interests requiring adequate due process prior to a permanent deprivation. While primarily concerned with whether the University correctly adhered to its own internal procedures, the majority also determined Bavel received sufficient constitutional due process through its reliance on Loudermill.
Loudermill provides that “[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.” 470 U.S. at 546. On its face it appears the University provided Bavel with the process stipulated in Loudermill. However, the holding in Loudermill took into account that Ohio law provided for a full post-termination hearing, thus supplementing the explicitly required process. See 470 U.S. at 546 (“Our holding rests in part on the provisions in Ohio law for a full post-termination hearing.”); see also Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 517 (10th Cir.1998) (“holding in Loudermill rested partially on the availability of a full post-termination hearing”); Langley v. Adams County, Colo., 987 F.2d 1473, 1480 (10th Cir.1993) (“Under Loudermill, the adequacy of pre-termination procedures must be examined in light of available post-termination procedures.”); Calhoun v. Gaines, 982 F.2d 1470, 1476 (10th Cir.1992) ( “Loudermill established that some form of pretermination hearing, plus a full-blown adversarial post-termination hearing [unless such was included as part of the pretermination proceedings] are required.”). “ ‘A “full post-termination hearing” is understood to include the right to representation by an attorney and the right to cross-examine adverse witnesses.’ “ Tonkovich, 159 F.3d at 517–18 (quoting Workman v. Jordan, 32 F.3d 475, 480 [10th Cir.1994] ).
In McMillen v. U.S.D. No. 380, 253 Kan. 259, 266, 855 P.2d 896 (1993), our Supreme Court recognized the holding in Loudermill was to be understood within the context of an accompanying statute independently providing for a post-deprivation hearing. The tenured teacher appealing in McMillen was entitled to a post-deprivation hearing pursuant to K.S.A.1991 Supp. 72–5439, thus allowing our Supreme Court to focus only on whether the explicit requirements in Loudermill were satisfied. Here, however, Bavel has no statutory right to a post-deprivation hearing and was denied a hearing by the University even through the University's own rules gave it the discretion to grant him one. In my view, under Loudermill, the United States Constitution requires more.
Finally, while the University perhaps had an interest in promptly resolving the conflict, allowing Bavel one final hearing to cross-examine his accuser would not have represented a heavy burden regardless of Bavel's chances for success. Moreover, a postdeprivation hearing also would have minimized the chance that Bavel's interests were erroneously deprived, especially given the probative value of an initial investigation performed entirely by a single investigator for the University's Department of Human Resources and Equal Opportunity.
As the University opted not to provide Bavel with process of any kind following its pre-deprivation determination to discipline Bavel, I would hold the University did not provide Bavel with sufficient due process before depriving him of his property rights. I would reverse the district court and remand the matter with the requirement that Bavel be granted a due process hearing.