United States District Court, D. Colorado
For Marc Rubat du Merac, Plaintiff: John W. McKendree, Law Offices of John W. McKendree, LLC., Thornton, CO.
For Colorado School of Mines, Defendant: Alison Faryl Kyles, Douglas J. Cox, Colorado Attorney General's Office, Denver, CO.
R. Brooke Jackson, United States District Judge.
This matter comes before the Court on Defendant's Motion for Summary Judgment [ECF No. 19]. The Court exercises original jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction pursuant to 28 U.S.C. § 1367. For the following reasons, the motion is granted.
This case arises out of the defendant's decision to suspend the plaintiff, Marc Rubat du Merac, from graduate studies at the Colorado School of Mines pursuant to a finding that Mr. du Merac engaged in sexual harassment of an undergraduate student in violation of the school's harassment policy. Mr. du Merac brings this lawsuit alleging that his suspension was a form of reverse sex discrimination in violation of Title VII and the Colorado Anti-Discrimination Act.
The following facts are materially undisputed. In 2008, Mr. du Merac began a graduate studies program at the Colorado School of Mines (" CSM" ) in its Department of Metallurgical and Materials Engineering (" MME" ). In conjunction with this program, Mr. du Merac served as a research assistant to Professor Ivar Reimanis. During the summer of 2010, an undergraduate woman (herein referred to as T.O.) began working for Professor Reimanis as a research assistant. T.O. and Mr. du Merac shared an office with a number of other male students until one female graduate student joined the office. At the time she began her position with Professor Reimanis, T.O. was approximately 19 years old and Mr. du Merac was approximately 43 years old.
On November 17, 2011, T.O. resigned her research assistant position. She reported to Professor Reimanis that she was leaving the office because Mr. du Merac had been sexually harassing her throughout her tenure there. Professor Reimanis immediately called the school's Human Resources Department, a member of whom contacted T.O. the following day. Pursuant to her discussions with two scholarship advisors -- Bruce Goetz and Deb Lasich, the head of the Women in Science, Engineering, and Mathematics program -- T.O. decided to file a formal complaint against Mr. du Merac. See T.O. Depo. [ECF No. 19-3] 53:6-12.
CSM's Sexual Harassment Policy and Complaint Procedure (hereinafter the " policy" ) defines sexual harassment, in pertinent part, as follows:
Sexual harassment shall, without regard to the gender of the alleged perpetrator or victim, consist of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work or school performance, or creating an intimidating, hostile, or offensive working or studying environment.
Def. Ex. 6. The policy adds that " retaliation in any form against an individual for reporting sexual harassment or cooperating in a sexual harassment investigation is strictly prohibited. Such retaliation shall be dealt with as a separate instance of sexual harassment." Id.
CSM's policy provides that when a formal complaint of sexual harassment is filed, an attorney from CSM's Office of Legal Services and the Associate Vice President for Human Resources " shall jointly investigate the complaint by examining relevant documents, if any, and interviewing witnesses and other individuals designated by either party." Id. The policy adds that the investigators " will strive to conduct the investigation in a discrete and expeditious manner with due regard to thoroughness and fairness to both parties." Id.
T.O.'s formal complaint was received by CSM's General Counsel on December 1, 2011. On December 6, 2011 Associate Counsel Esther Henry and Associate Vice President for Human Resources Mike Dougherty were designated as the investigators. That same day, Provost Terry Parker notified Mr. du Merac of the complaint and the upcoming investigation. On December 15, 2011, the investigators interviewed Mr. du Merac. See Def. Ex. 16 at 4. Following this interview, Mr. du Merac filed his own complaint against T.O. alleging that T.O. had made false accusations against him. This complaint was delivered to HR (though addressed to Provost Parker) on December 16, 2011. Def. Ex. 10, 11.
T.O. had only identified four witnesses in support of her claims against Mr. du Merac. In his complaint, Mr. du Merac listed twenty-six witnesses, nineteen of whom had worked in the same office as T.O. and Mr. du Merac or who had participated in conversations in the office during the relevant time period. The other seven individuals were female character witnesses.
Due to the overlapping nature of the two complaints, Ms. Henry and Mr. Dougherty decided to investigate them concurrently. In all, the investigation process took six months and included interviews of approximately twenty witnesses as well as multiple interviews of T.O. and Mr. du Merac. With the exception of the character witnesses, who had not witnessed the interactions between T.O. and Mr. du Merac, the investigators interviewed all of the witnesses Mr. du Merac had provided. Each of these witnesses was asked about the specific allegations as well as to comment generally on the credibility of T.O. and Mr. du Merac.
On March 26, 2012, before the investigation was complete, Mr. du Merac sent the investigators an emailing stating that he had released both his and T.O.'s complaints as well as related materials to a number of witnesses. Def. Ex. 14, 15. The email includes a reference to Colorado's criminal libel statute along with the following admonition: " It should be noted that any person that aids or abets a person that is engaged in criminal libel could be considered as [ sic ] accessory to this felony." Def. Ex. 15. The email continues by asking the witnesses to read the complaints and to notify the investigators of any additional reactions beyond their interview responses. It ends by warning that " false claims are a disservice to those who make truthful harassment complaints and open the door to abuse of the School's policy," explaining that T.O.'s dislike for Mr. du Merac is no excuse " to warrant filing a serious complaint containing false accusations." Id. Accordingly, " [i]t is for this reason that I am asking you to share any information you have regarding these complaints." Id.
Mr. du Merac admits that he had been warned on numerous occasions regarding his obligation to maintain confidentiality throughout the investigation process. In fact, he had been warned as recently as March 20, 2012, less than a week ...