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Drew Francis v. Lehigh University

March 1, 2013

DREW FRANCIS, PLAINTIFF,
v.
LEHIGH UNIVERSITY,
DEFENDANT.



The opinion of the court was delivered by: Tucker, J.

MEMORANDUM OPINION

March ____, 2013

Presently before the Court are Defendant Lehigh University's Renewed Motion for Summary Judgment as to Plaintiff Drew Francis' disability discrimination claim (Doc. 71), Plaintiff Drew Francis' Response in Opposition thereto (Doc. 72), and Defendant Lehigh University's Reply in Support of its Renewed Motion for Summary Judgment (Doc. 77), along with Plaintiff's Statement of Undisputed Facts (Doc. 73) and Defendant's response thereto (Doc. 78). Upon consideration of the parties' motions with briefs, and for the reasons set forth below, Defendant's motion for summary judgment will be granted.

I. BACKGROUND

The instant action stems from circumstances surrounding Plaintiff Drew Francis's ("Plaintiff") termination from Lehigh University. Plaintiff brings this suit against Defendant Lehigh University for an alleged violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADEA").

In 1995, Plaintiff accepted a temporary position within Lehigh's Department of Theatre in its College of Arts and Science as a technical director/scene designer. Approximately three months later, Plaintiff accepted a tenure track professor position with the University. In 1996, Plaintiff was promoted to Associate Professor in the Department of Theatre. In July 2001, Plaintiff was granted tenure at the rank of Associate Professor.

In November 2001, Plaintiff fell off a ladder and suffered a fractured foot, ankle, and back. Upon receiving medical clearance to return to work, Plaintiff submitted a list of twelve

(12) accommodations to his supervisor that he claimed were necessary for him to be able to perform his jobs. Plaintiff's requests included a personal driver, a wheelchair, wheelchair accessible office space, drawing tables and hand tools, assistance with opening doors on campus, repair of a computer, and a personal assistant to help him with certain sedentary duties. Plaintiff admits that he received many of these accommodations, and continued to receive them through 2008.

In October or November of 2007, a female University student, D.C., approached Pam Pepper ("Professor Pepper"), then Professor in the Department of Theatre, to discuss a concern about another female University student, B.V., and Plaintiff. D.C. related that she believed that Plaintiff and B.V. were having a sexual relationship and she felt that Plaintiff was taking advantage of B.V. D.C. also told Professor Pepper that she had a sexual relationship with Plaintiff. Professor Pepper requested that D.C. file a complaint with the University's Harassment Policy Officer; however, D.C. declined to take such action at that time.

Professor Pepper met with Professor Augustine Ripa ("Professor Ripa"), then Chair of the Department of Theatre, and Dr. Christine Cole ("Dr. Cole"), University Harassment Policy Officer, the morning after her discussion with D.C. to discuss D.C.'s allegations. At the time, it was noted that the University Harassment Policy prohibited relationships between faculty and students that created a supervisory conflict of interest. The University did not begin an investigation at the time because a complaint had not been filed and there was no knowledge of a supervisory conflict. Dr. Cole requested that Professors Pepper and Ripa monitor the matter and report any further information that they discovered.

In the late summer or early fall of 2008, allegations surfaced once again regarding Plaintiff's contact with University students. More specifically, Professor Erica Hoelscher, Plaintiff's ex-wife who was also a professor in the University's Department of Theatre, had separate conversations with Professors Pepper and Ripa about her divorce from Plaintiff and its impact on her continued work. Professors Pepper and Ripa both testified that Professor Hoelscher informed them that, while married to Plaintiff, she had learned that Plaintiff had an affair with B.V. over a period of time when Plaintiff taught and otherwise supervised B.V.'s work. Professor Ripa further explained that Professor Hoelscher stated that she believed B.V. and Plaintiff were in a relationship after discovering electronic messages between the two of them.

Based upon the information from Professor Hoelscher, Professors Pepper and Ripa, along with another professor in the department, contacted the Dean of the College of Arts and Sciences, Anne Meltzer, for guidance with regard to the situation. Following their meeting with Dean Meltzer, Dean Meltzer and Professor Pepper met with Dr. Cole, the University Harassment Policy Officer, to determine their next steps. At that meeting, it was decided to initiate the investigation process under the University Harassment Policy. Professor Pepper, as then Chairperson of the Department of Theatre, was to prepare a letter outlining the Theatre Department's concerns about the allegations against Plaintiff, including the student complaint, referred to with anonymity to maintain confidentiality of the identity of the female student, D.C. It was further suggested that Professor Pepper contact the female student, D.C., to determine if D.C. would file a complaint.

On December 4, 2008, Professor Pepper filed an anonymous Internal Complaint with the University Harassment Policy Officer, outlining the information regarding Plaintiff's sexual conduct toward female University students during periods of time that Plaintiff taught and/or supervised the students' work. The Internal Complaint included and referenced information gleaned from: (1) a further conversation with D.C., who stated that her relationship with Plaintiff occurred while she was under his supervision; and (2) multiple conversations with Professor Hoelscher that indicated Plaintiff engaged in sexual conduct with students, including B.V., while under his supervision, as well as rumors circulating about Plaintiff's sexual conduct with students. Based on this Internal Complaint, the University's Faculty Investigators, Dr. Cole and Dr. Art King, began an investigation into Plaintiff's conduct with students.

At the time of Plaintiff's alleged conduct with female students D.C. and B.V., the University maintained an Harassment Policy that provided as follows:

A supervisor should avoid developing a romantic or sexual relationship with an employee. Similarly, an instructor (e.g., advisor, course instructor, teaching assistant) should avoid developing a romantic or sexual relationship with a student taught, advised, or supervised by that instructor. If such a relationship does develop, it is a conflict of interest for one party to continue in any type of supervisory role . . . It is the responsibility of the person in the supervisory role to resolve the conflict of interest. Failure to resolve a conflict of interest puts the supervisor at risk for charges of sexual harassment. (See Def.'s Br., Lehigh University's Policy on Harassment §2.3, attached as Exhibit O.) The Policy further provides the following:

7.1 Harassment is a serious offense that will not be tolerated in an educational, working, co-curricular, ...


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