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Moeller v. The Board of Trustees of Indiana University

United States District Court, S.D. Indiana, Indianapolis Division

December 27, 2017

Dr. Matthew C. Moeller, Plaintiff,
v.
The Board of Trustees of Indiana University d/b/a Indiana University School of Dentistry, Michael McRobbie, Nasser H. Paydar, John N. Williams, Kim D. Kirkland, and Charles Bantz, Defendants.

          ORDER

          Hon. Jane Magnus-Stinson, Chief Judge.

         Plaintiff Dr. Matthew Moeller worked at Indiana University in the School of Dentistry (the “University”) as a Clinical Assistant Professor of Operative Dentistry - a non-tenure track position. In October 2014, the University became aware of allegations of sexual harassment made by students against Dr. Moeller. University representatives interviewed numerous students and informed Dr. Moeller that there were complaints that he had patted, rubbed, and massaged the backs of female students without their permission, and touched and rubbed the upper leg of a female student. Dr. Moeller admitted these allegations, but disputed their context and significance. After an investigation, which afforded Dr. Moeller the opportunity to present his version of events, the University terminated Dr. Moeller's employment. Dr. Moeller filed complaints and appeals with various University entities, one of which recommended that the University should provide Dr. Moeller with more information regarding the allegations, interview him again, and provide him with the reasons the University concluded that he should be terminated. The University adopted these recommendations and offered Dr. Moeller the additional information and another interview on the condition that he waive his right to appeal the decision, but Dr. Moeller declined the offer. He then initiated this litigation, asserting, among other claims, violation of his right to procedural due process.

         Defendants have filed a Motion for Summary Judgment, [Filing No. 68], and Dr. Moeller has moved to dismiss two of his claims, [Filing No. 80].[1] Both motions are now ripe for the Court's decision.

         I.

         Statement of Facts

         The following factual background is set forth pursuant to the standard discussed below in connection with Defendants' Motion for Summary Judgment. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

         A. Dr. Moeller's Initial Employment With the University

         The University hired Dr. Moeller in 1985 as a part-time clinical instructor in the School of Dentistry. [Filing No. 68-1 at 3.] Also in 1985, Dr. Moeller opened a private practice where he worked approximately 15 to 18 hours per week. [Filing No. 68-1 at 3.] Dr. Moeller maintained his private practice for approximately thirty years, until October of 2016. [Filing No. 68-1 at 3.]

         In July of 1996, the University offered Dr. Moeller a non-tenure track position as Clinical Assistant Professor of Operative Dentistry in the Department of Restorative Dentistry. [Filing No. 68-1 at 4; Filing No. 68-3 at 3.] The University describes the position as “primarily participat[ing] in preclinical and clinical instruction for undergraduate dental students.” [Filing No. 68-3 at 3.] The appointment was for two years, with “eligibility for annual reappointment.” [Filing No. 68-3 at 3.] The University also offered Dr. Moeller a position as Clinic Director in the Comprehensive Care Program, a non-tenure track position that was a one-year appointment with a chance for reappointment to a three-year term. [Filing No. 68-3 at 1.] As Clinic Director, Dr. Moeller would “manage the succession of charts from graduating students to new third-year students and distribute them fairly and then replenish them as [he] was able. And [he] would counsel them in difficulties that they would have….” [Filing No. 68-1 at 5.] Dr. Moeller believed that he “played a more important role than anyone on faculty or staff in the students' ability to successfully complete dental school. [Filing No. 68-1 at 6.] In May 2014, the University notified Dr. Moeller that his appointment as Clinical Assistant Professor had been extended through the 2021-22 academic year. [Filing No. 68-4.]

         B. University Policies and the University Handbook

         The University instituted a policy entitled “Permanent Separations for Academic Appointees, ” which stated in relevant part:

         (IMAGE OMITTED)

         [Filing No. 68-5 at 2.]

         The University also instituted a “Code of Academic Ethics” policy, which states in relevant part:

         (IMAGE OMITTED)

         [Filing No. 68-7 at 2-3.]

         The University Handbook states:

         (IMAGE OMITTED)

         [Filing No. 68-6.]

         Finally, the University's Code of Academic Ethics states:

         (IMAGE OMITTED)

         [Filing No. 68-7 at 7-8.]

         C. The Allegations Against Dr. Moeller

         In October 2014, Dr. Melanie Peterson, the Associate Dean for Admissions and Student Affairs at the University, notified Dr. Kim Kirkland, the Director of the University's Office of Equal Opportunity (“OEO”), that she had learned that there was a complaint of sexual harassment against a faculty member. [Filing No. 68-8 at 2-5.] Dr. Kirkland asked Ginger Arvin, a senior investigator at the OEO, to follow up with Dr. Peterson regarding the allegation, and Ms. Arvin interviewed Dr. Peterson shortly thereafter. [Filing No. 68-8 at 5; Filing No. 68-8 at 10; Filing No. 68-9 at 2; Filing No. 68-9 at 6; Filing No. 68-10.] Dr. Peterson advised Ms. Arvin that a dental student in Clinic B mentioned to her during a meeting that female students in Clinic B felt uncomfortable because Dr. Moeller would touch them inappropriately. [Filing No. 68-8 at 3; Filing No. 68-10 at 1.] Dr. Peterson also advised that a female student in Clinic B told her that Dr. Moeller had put his arm around her, that she did not feel comfortable, and that Dr. Moeller put his hand on the thigh of another female student in Clinic B during a class session. [Filing No. 68-8 at 3-4.] After her interview, Dr. Peterson sent Ms. Arvin an email which stated:

I just spoke with [the female student in Clinic B] and she will be expecting you to contact her. She indicated that “everyone in Clinic B is aware of the situation.” She indicated that the situation with the student who will hopefully stop by later this afternoon “crossed the line.” She suggested that it might be helpful to have a meeting with the entire Clinic group of students since “everybody knows.” There are allegations that this has happened before and was never addressed properly. I have no idea if this is true. Dr. George Willis is the Clinic Dean and if a student was moved to another group I would think he would be aware. Understandably there is concern about retaliation and “not graduating” on time because of this.

[Filing No. 68-8 at 5; Filing No. 68-11.][2]

         Ms. Arvin interviewed the female student on October 15, 2014, and the student discussed three incidents involving Dr. Moeller. [Filing No. 68-9 at 2; Filing No. 68-12.] First, the student advised that she took a concern regarding a radiograph to Dr. Moeller at the end of July 2014, and that during their discussion Dr. Moeller patted her back. [Filing No. 68-9 at 3; Filing No. 68-12 at 1; Filing No. 68-13 at 2-3.] The student stated that, at the time, she did not think anything about him touching her back, and understood that the pat was a “pat of encouragement.” [Filing No. 68-9 at 3; Filing No. 68-12 at 1; Filing No. 68-13 at 3.]

         Second, the student advised that during a Group Learning Activity (“GLA”) with another clinic director on September 4, 2014, she was sitting in a chair around a table when Dr. Moeller came over to her, bent down to greet her, and then rubbed the top of her right thigh for a couple of seconds. [Filing No. 68-9 at 3-4; Filing No. 68-12 at 2.] The student, who is not American born, stated that she froze and wondered whether Dr. Moeller's conduct was acceptable in American culture. [Filing No. 68-12 at 2; Filing No. 68-13 at 5.] The student thought it “[c]ould be [Dr. Moeller] was trying to hit on me, ” and that it was “awkward behavior” and “completely inappropriate behavior.” [Filing No. 68-13 at 9-10.] Dr. Moeller contends that he touched the student on her left knee, that the student then “suddenly switched chairs with a male classmate, ” that she then plugged her laptop in and he “wondered if that was the reason she suddenly moved, ” that he later apologized to her for touching her leg, and that she “meekly said words expressing, ‘It's ok, it's nothing.'” [Filing No. 79-47 at 1.]

         Third, the student told Ms. Arvin that at a GLA the following week, Dr. Moeller dragged a chair over to her to sit by her and then gave her a back massage without her permission. [Filing No. 68-13 at 5-6.] A male student immediately saw how uncomfortable the female student was, and offered to trade seats with her. [Filing No. 68-13 at 5-6.] The student advised Ms. Arvin that as a result of these three incidents, she tried to stay away from Dr. Moeller because she did not feel secure or comfortable and worried that her career might be at risk if she made a complaint against him. [Filing No. 68-12 at 3-5; Filing No. 68-13 at 6-7; Filing No. 68-13 at 11.] The student stated that students are intimidated by Dr. Moeller and are concerned about retaliation. [Filing No. 68-9 at 5; Filing No. 68-13 at 4-5; Filing No. 68-13 at 11.] She advised that Dr. Moeller would touch, pat, massage, and rub other female students on a regular basis without their permission, and that this conduct had been going on for a long time. [Filing No. 68-9 at 4; Filing No. 68-13 at 10-11.] Dr. Moeller denies that this third incident occurred. [Filing No. 79-4 at 17-19.]

         D. The Investigation

         On October 17, 2014, Dr. Peterson met with the Clinic B students and informed them that the OEO may be contacting them, but she did not mention or refer to Dr. Moeller by name and did not provide any information regarding the nature of the investigation. [Filing No. 68-8 at 7.] Ms. Arvin then proceeded to conduct an investigation pursuant to the University's Operating Procedures for Processing Complaints of Discrimination. [Filing No. 68-9 at 13; Filing No. 68-15.] She interviewed twelve current students (eight female and four male), one former student, two faculty members, and one staff member. [Filing No. 68-9 at 18; Filing No. 68-16.] Of the eight current female students interviewed, six advised that Dr. Moeller had massaged or rubbed their back without permission. [Filing No. 68-9 at 9-19; Filing No. 68-17.] Several students also advised that Dr. Moeller's conduct made them feel uncomfortable and that they avoided being alone with him. [Filing No. 68-9 at 9-10; Filing No. 68-9 at 16-20.] Other Clinic B students stated that they had not witnessed Dr. Moeller “patting, rubbing and/or massaging the backs and shoulders of female students, ” but had heard that: (1) he “gives a lot of people massages, both guys & girls, ” [Filing No. 79-7 at 1]; (2) he is “going to grope you, massage shoulders[, ] touch you in a creepy way [that] feel[s] uncomfortable, ” [Filing No. 79-8 at 1]; (3) a student was being moved out of clinic because she had claimed that she would be sitting at her desk and he would approach her from behind and grab her shoulder, [Filing No. 79-9 at 1-2]; and (4) he gave back rubs to females, [Filing No. 79-12 at 2].

         One of the former female students Ms. Arvin interviewed advised that several years before, Dr. Moeller was standing behind her while she was showing him something on her laptop when he put his hands on her shoulders, reached down, and touched the top of her bra next to her breast. [Filing No. 68-9 at 11-12.] The former student did not file a formal complaint against Dr. Moeller, but was moved to another clinic after the incident. [Filing No. 68-9 at 12.][3]

         E. Dr. Moeller's Response

         Dr. Moeller received a Notice of Complaint from the OEO on October 23, 2014. [Filing No. 68-1 at 11; Filing No. 68-14.] The Notice of Complaint reads as follows:

         (IMAGE OMITTED)

         [Filing No. 68-14 at 4.]

         The Notice of Complaint described Dr. Moeller's rights as follows:

         (IMAGE OMITTED)

         [Filing No. 68-14 at 6.]

         Dr. Moeller submitted a written response to the OEO on November 3, 2014, stating:

         (IMAGE OMITTED)

         [Filing No. 68-18 at 3-4.][4]

         Ms. Arvin interviewed Dr. Moeller on December 3, 2014 in the presence of Dr. Kirkland. [Filing No. 68-2 at 2; Filing No. 68-9 at 17; Filing No. 68-19.] During the interview, Dr. Moeller again admitted to touching the student's thigh, and to rubbing and massaging the backs of female students without their permission. [Filing No. 68-1 at 12; Filing No. 68-2 at 3; Filing No. 68-9 at 18.] He also told Ms. Arvin that his conduct was “inappropriate, ” but claimed that it was not “sexual harassment.” [Filing No. 68-19 at 3.]

         During his interview, Dr. Moeller also discussed three other incidents involving students. First, Dr. Moeller discussed sending a note to a student saying “I really enjoy you. Is there any chance to reciprocate?” [Filing No. 68-2 at 4-5.] This incident occurred in the late 1990s, and Dr. Moeller described it as follows:

Back in 1998, there was a student, again, in Clinic C that I thought was an attractive person. And I left a note in her mailbox, and it went unanswered. And then [former Dean of Students Dr. Margot] Van Dis called me and said, you know, this student felt uncomfortable with this. And I'll always admire the advice that Dean Van Dis gave, and that is, “Student, you need to answer his question, ” and then, “Dr. Moeller, you need to leave her alone.” And that was easy enough.

[Filing No. 68-1 at 9.] The student responded that she was not interested. [Filing No. 68-1 at 10.]

         Second, in 2012 Dr. Moeller dated a student during her fourth year of dental school and for two years thereafter. [Filing No. 68-1 at 7-9.] Dr. Moeller informed the Assistant Dean of Student Affairs at the time about their relationship. [Filing No. 68-1 at 7-8.] The student was in Clinic C and Dr. Moeller was the director of Clinic B, but Dr. Moeller would have to oversee students in Clinic C “almost on a weekly basis.” [Filing No. 68-1 at 8.]

         Finally, Dr. Moeller discussed an incident when he invited a student from Clinic C to bring her dog over to a lake near his house to swim. [Filing No. 68-1 at 9.] The student declined the invitation. [Filing No. 68-2 at 5.]

         On December 18, 2014, Ms. Arvin submitted her Report of Investigation (the “Report”) to the Dean of the School of Dentistry, Dr. John Williams. [Filing No. 68-9 at 19; Filing No. 68-17.] Ms. Arvin prepared the Report in consultation with Dr. Kirkland, and Dr. Kirkland approved it. [Filing No. 68-9 at 19; Filing No. 68-21 at 3.] The Report stated, in part:

         (IMAGE OMITTED)

         [Filing No. ...


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