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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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