Court Upholds Decision To Terminate Tenured Professor For Alleged Sexual Harassment

CATEGORY: Nonprofit News, Private Education Matters
CLIENT TYPE: Nonprofit, Private Education
DATE: May 25, 2023

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

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

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

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

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

In May 2017, Henry interviewed Heineke and seven other witnesses about Doe’s accusations. Heineke again denied that anything like this had happened before. In May 2017, Henry issued a report concluding that Heineke had not sexually harassed Student A. In June 2017, Henry issued a report on the Doe investigation, finding it more likely than not that Heineke had harassed Doe.

Consistent with University policy, Henry’s report was sent to the Provost, Doe, and Heineke. Heineke indicated that additional relevant emails he previously deleted from his account might exist, and urged the University to consider them. The emails were retrieved and Henry prepared a supplemental analysis, which found that the tone of Doe’s emails were friendly in the first half of 2015, but this did not change the findings of the investigation. Again consistent with University policy, the Provost met with Heineke and accepted Heineke’s lengthy written response to Henry’s investigation addendum. The Provost concluded that it was more likely than not that Heineke violated the harassment policy, which amounted to gross misconduct, and the Provost imposed a dismissal and termination of tenure effective in two weeks. The Provost told Heineke that the University’s President would handle any appeal. Heineke appealed to the University’s President.

The President consulted with Doe, Heineke, the dean of students, and a member of the Faculty Judiciary Board (FJB), and affirmed the findings. Heineke petitioned the FJB for review. The FJB appointed a five-member hearing committee. Following the hearing, FJB affirmed the University’s finding of harassment and decision to dismiss Heineke.

In July 2018, Heineke filed an administrative mandamus petition, asking the Court to review the FJB testimony to determine whether FJB afforded Heineke a fair trial.  The trial court reviewed the FJB testimony, agreed with the FJB’s conclusion that Heineke’s explanations were not credible, and agreed that Doe’s reasons for maintaining friendly relations with Heineke in the face of harassment were plausible. The trial court denied Heineke’s petition. Heineke appealed. The Court of Appeal determined that the University followed its procedures and that the record contained substantial evidence to support the finding of harassment. The Court of Appeal noted that the evidence did not definitively weigh in favor of one party, but the Court of Appeal declined to reweigh the evidence and reassess credibility, as this task is reserved for the trial court.

Heineke also sued the University for wrongful termination under the Fair Employment and Housing Act (FEHA) asserting a theory of age discrimination, denial of state constitutional right to due process, breach of contract, and defamation.

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

For Heineke’s due process claims, the trial court held that Santa Clara University is not a state actor, meaning the University is not subject to the due process clause. On appeal, Heineke conceded that the University is not a state actor, and instead argued that he did not receive a fair process. The Court of Appeals concluded that Heineke’s complaint did not plead a cause of action for denial of a common law right to a fair process, and he could not amend his complaint at this stage on appeal from a summary judgment.

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

Heineke v. Santa Clara University (2023) __ Cal. Ct. App. __ [2023 WL 3116225].

Note: Terminating a tenured professor at a college or university is typically higher stakes than terminating an employee at a primary, elementary, or secondary school. Nonetheless, this case is instructive because it shows the importance of following the process outlined in the employee handbook when terminating an employee for violation of a school policy.

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