In late summer of 2004, as students were beginning to return to their classes, a professor was accused of sexually harassing the chair of his department. The professor was fired under a "zero-tolerance" policy. He sued, claiming breach of contract and the case made its way to the Indiana Court of Appeals. In
, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 82A01-1008-PL-369, a divided panel agreed with the professor and held that professor did not create a hostile working environment.
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Haegert was a tenured professor at the University in the English Department. McMullan was the permanent chair of the English Department at the University. The University's tenure contract included a no-tolerance harassment and sexual harassment policy. In 2002, McMullan received informal complaints from female students about some of the language Haegert used in the classroom and inappropriate touching of students. She and another University official had conversations with Haegert about the informal student complaints. However, as no formal complaint had been lodged, the University took no official action against Haegert.
In August 2004, McMullan accused Haegert of the following:
On August 25, 2004, the first day of the 2004-2005 academic year at the University, McMullan was seated in the English Department lounge interviewing a prospective student, Cassandra Stichter, and her parents. McMullan asserts that Haegert walked over to where McMullan was seated and stood directly in front of her with his belt at her eye level about a foot from her face, said "Hi, Sweetie" and then "touched and moved his fingers on [McMullan's] neck and chin in a tickling gesture for a long moment while [she] was addressing the prospective family."
Haegert disputed this version of the events.
Haegert was put on administrative leave while the University conducted an investigation and was eventually terminated. Haegert then filed a complaint against the University for breach of contract. The parties filed cross-motions for summary judgment and the trial court granted the University's motion. Haegert appealed.
On appeal, the Court noted that the sexual harassment alleged was the creation of a hostile work environment, not a
quid pro quo. It concluded that Haegert's conduct was not sufficient to create a hostile work environment.
In the present case, while Haegert's comments and behavior might be characterized by some as inappropriate, vis-à-vis a co-worker, the complained of comments and behavior in this one incident do not constitute actionable sexual harassment in the form of hostile work environment. McMullan acknowledged that she did not tell Haegert that prior chin-chucking was unwelcome, and she never told him to stop engaging in that conduct with her. Instead, McMullan claimed that Haegert should have known that his conduct was unwelcome because of the look on her face, or her stony silence. Haegert had been put on notice by the University that he was not to use terms of endearment with his female students, and was not to hug or touch female students. However, prior to the University's investigation of McMullan's formal complaint, Haegert had not been put on notice that McMullan found his conduct to be offensive and unwelcome. The University, therefore, did not establish by clear and convincing evidence that Haegert had committed sexual harassment in the form of hostile work environment.
Judge Vaidik dissented from this conclusion. She noted that while the "zero-tolerance policy" acknowledged that courts recognize two kinds of sexual harassment (
quid pro quo and hostile work environment), the contract also provided specific examples of sexual harassment, which included "unwanted touching, flirting, fondling, hugging, patting, pinching, or leering." Because the contract "governs both the substance and procedures for any sexual harassment claim occurring at the University and the contract "gave examples of sexual harassment which include this very situation," Judge Vaidik felt that the University did not breach its contract with Haegert when terminating his employment.
The majority's decision appears to assume that the law governing legal claims of sexual harassment should inform the interpretation of a employment contract that prohibits sexual harassment. The dissent disagrees with this assumption, but does not provide much analysis supporting this disagreement. Lawyers who are writing sexual harassment policies need to be aware of this decision, as it may affect how an employer enforces those policies.It will be interesting to see whether the assumptions of the members of this panel are fleshed out either on transfer or in future opinions.
