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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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