Title IX / College Discipline Practice - Warshaw Burstein LLP | <em >Fogel v. The University of the Arts</em >, No. 18-5137 (E.D. Pa. Mar. 27, 2019)
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  • Fogel v. The University of the Arts, No. 18-5137 (E.D. Pa. Mar. 27, 2019)
    Harris Fogel, a male professor at The University of the Arts (the “University”), was dismissed following an investigation into two separate allegations of sexual harassment.  Fogel was alleged to have forcibly kissed a female professor upon greeting her at a conference in Las Vegas, and weeks later at a separate conference, he was alleged to have harassed an aspiring female photographer by offering her his room keycard instead of his business card.  Twenty-one months passed before the two women filed complaints against Fogel in December 2017.
    Fogel challenged the investigation and outcome under a Title IX erroneous outcome theory.  To succeed on a Title IX erroneous outcome claim, plaintiff must allege particular facts sufficient to cast some articulable doubt on the accuracy of the proceeding; and particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.  While Fogel alleged due process violations in support of his Title IX claim, the fact the University is a private institution meant he could not bring a Fourteenth Amendment due process claim against the University.

    Fogel alleged the investigation was flawed because the University’s Title IX Coordinator Lexi Morrison failed to interview relevant witnesses and all available evidence.  Fogel also alleged he was not given adequate notice of the charges against him, that he did not receive a copy of the investigative report, was not given a live hearing to present witnesses, and several other investigative and procedural failings.  To support his claim that a gender bias was the motivating factor, Fogel pointed to the University’s failure to adequately address his complaint that his female supervisor hugged and kissed him without his consent, which differed from their handling of a female complainant against a male respondent in his case.  The court held that Fogel sufficiently pleaded both prongs of erroneous outcome, and denied the defendants’ motion to dismiss.
    CATEGORY: Discrimination