Some excerpts from Friday’s longish decision by Judge Nora Barry Fischer (W.D. Pa.) in Bhattacharya v. Univ. of Pittsburgh:
Plaintiff, Chitrabhanu Bhattacharya, a tenured professor employed in the School of Business of Defendant, the University of Pittsburgh, was suspended without pay for a year, and terminated from the H.J. Zoffer endowed Chair, for “pervasive but not severe” violations of Defendant’s sexual misconduct policy….
Plaintiff sued, claiming the University denied him due process, and the court agreed. The court concluded that a one-year suspension from a tenured position, and termination from a $50,000/year chair, were deprivations of “property” that required due process, and that such due process wasn’t provided:
Plaintiff contends that Defendant failed to give him adequate notice of the charges against him, or an adequate explanation of Defendant’s evidence. He avers, to the contrary, that Defendant provided a July 10, 2023 notice of charges whose “sole allegation was that between June 2022 and May 2023 he engaged in ‘unwelcomed verbal advances of a sexual nature.'” The July 10 letter did not disclose any charges of unwanted touching; and (with a single exception) Plaintiff was provided no notice of such charges prior to or at the commencement of a July 27, 2023 interview with Defendant’s investigator Laurel Gift, Esq. (in which Plaintiff first learned the specifics of multiple charges against him in the course of being questioned about them by Ms. Gift).
Although Defendant alleges that Plaintiff was “verbally informed of the allegations against him, including allegations of physical touching, during his paid suspension meeting on June 6, 2023,” the paragraph of Defendant’s [Statement of Material Facts] cited in support of this allegation does not mention physical touching. Ultimately, Ms. Gift concluded that Plaintiff had engaged in pervasive sexual harassment based upon some 16 “behaviors/comments” comprising nine alleged incidents of unwelcome physical conduct and 10 or 11 alleged incidents of verbal behavior, as summarized in a table in her Investigative Report. Crucially, Plaintiff alleges, and Defendant effectively does not deny, that he “had no notice” of nine specified “behaviors and comments listed in the table that he was not asked about during his July 27, 2023 interview or at any other time during the investigation.” …
The Court concludes that Defendant did not provide sufficient notice of charges and evidence to allow Plaintiff a meaningful pre-deprivation opportunity to defend against those charges. Plaintiff was entitled to be informed, no later than the beginning of his interview with Ms. Gift, as to each distinct charge that was considered by Ms. Gift and ultimately passed along to Dean Anderson for determination of sanctions. He was not so informed….
The court also concluded that the university’s appeal procedure didn’t provided adequate due process, either:
Plaintiff appears well justified in labeling Defendant’s … appeal procedure “secret” and “superficial.” Plaintiff was not privy to the Investigation Report that formed the basis for his suspension, and his appeal was limited to three grounds (new information, procedural nonconformity, and severity of sanctions). His appeal was denied by an anonymous board that did not conduct a hearing or determine facts or guilt, on the conclusory ground that Plaintiff’s “basis for appeal does not fall within any of the three limited grounds for appeal.” The board’s denial was approved by Defendant’s Provost, who did not review the underlying record. Such a procedure appears poorly calculated to find or correct any errors in investigating and sanctioning faculty conduct.
Although the Court is not prepared to say that a full-blown hearing was required as a matter of law, it is clear that the post-deprivation procedure afforded to Plaintiff was constitutionally inadequate, especially in light of the limited grounds for appeal, which continued to deny Plaintiff an opportunity to address the substance of the charges against him. The Court concludes that, taken together or separately, the pre- and post-deprivation procedures available to Plaintiff were plainly insufficient to provide him with the notice and opportunity to be heard which are the irreducible requisites of constitutional due process.
James B. Lieber and Thomas M. Huber (Lieber Hammer Huber & Paul, P.C.) represent plaintiff.
