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COA: University should get summary judgment

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The Indiana Court of Appeals ruled in favor of the trustees of Indiana University, finding the trial court erred when it denied summary judgment for the school and concluded a provision in an agreement between the school and a fired professor was ambiguous.

In the interlocutory appeal of Trustees of Indiana University v. H. Daniel Cohen,  No. 20A03-0812-CV-590, H. Daniel Cohen was hired as a physics professor with tenure and as chancellor of Indiana University - South Bend, but agreed to resign as chancellor following sexual harassment allegations. Following a sabbatical, Cohen and the university entered into an agreement that allowed him to continue teaching "with tenure with the rights and responsibilities attendant to that position." Another paragraph in the agreement stated he would be dismissed if any future proven act of sexual harassment or retaliation by Cohen occurred.

Student J.G. complained Cohen discriminated against her based on gender and religion, and also complained of sexual harassment and retaliation. Other students reported Cohen was demeaning and condescending and often swore in class. Cohen walked by a room where J.G. was taking a math test and made lingering eye contact with her; she became distraught and later filed a complaint alleging retaliation.

The school's Affirmative Action Office investigated and determined he violated school policy on sexual harassment. Cohen was dismissed in August 2001. He filed a complaint in 2003 alleging IUSB breached its agreement by terminating his employment without reason.

The Court of Appeals evaluated paragraphs three and 10 of the agreement between IUSB and Cohen to determine if paragraph three was ambiguous regarding whether the rights and responsibilities attendant to the position to which the agreement refers are those in the school's constitutions and handbooks. The trial court ruled the agreement was ambiguous on this point.

The Court of Appeals ruled the language "rights and responsibilities attendant to" the position of tenured professor doesn't in any way limit Cohen's responsibilities under the school's faculty handbooks, wrote Judge Elaine Brown.

"The clause at issue in Paragraph 3 reveals the parties' intent that Cohen be responsible for fulfilling those obligations which he would have been required to fulfill had he been a professor at the University whether or not he entered into the Agreement," she wrote.

His responsibilities included those all professors had to follow and the designated evidence supports this conclusion. Cohen even testified that the clause in question meant all things stated in the handbooks regarding rights and responsibilities.

Because the agreement allowed the school to fire Cohen for violations of the Code of Ethics as set forth in the handbooks, the university didn't breach the agreement by firing Cohen on that basis and was entitled to judgment as a matter of law, wrote Judge Brown. The case is remanded with instructions to enter summary judgment in favor of IU.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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