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Tarasenko v. Univ. of Arkansas

United States District Court, E.D. Arkansas, Western Division

October 23, 2014

OLGA TARASENKO, PLAINTIFF
v.
UNIVERSITY OF ARKANSAS, et al., DEFENDANTS

Page 911

For Olga Tarasenko, Plaintiff: Benjamin Patrick Cowan, Clark W. Mason, LEAD ATTORNEYS, Clark Mason Attorneys, Little Rock, AR.

For University of Arkansas, University of Arkansas Board of Trustees, Jim von Gremp in his official capacity as a Member of the University of Arkansas Board of Trustees, Ben Hyneman in his official capacity as a Member of the University of Arkansas Board of Trustees, Jane Rogers in her official capacity as a Member of the University of Arkansas Board of Trustees, Stephen Broughton in his official capacity as a Member of the University of Arkansas Board of Trustees, David H Pryor in his official capacity as a Member of the University of Arkansas Board of Trustees, Malk Waldrip in his official capacity as a Member of the University of Arkansas Board of Trustees, John Goodson in his official capacity as a Member of the University of Arkansas Board of Trustees, Reynie Rutledge in her official capacity as a Member of the University of Arkansas Board of Trustees, CC Gibson III in his official capacity as a Member of the University of Arkansas Board of Trustees, Morril Harriman in his official capacity as a Member of the University of Arkansas Board of Trustees, Donald L Bobbit individually and in his official capacity as the President of the University of Arkansas,Joel Anderson individually and in his official capacity as Chancellor of the University of Arkansas at Little Rock,Sandra Robertson individually and in her official capacity as Interim Provost of the University of Arkansas at Little Rock, Christina Drale individually and in her official capacity as Associate Vice Chancellor for Academic Affairs of the University of Arkansas at Little Rock, Patrick Pellicane individually and in his official capacity as Dean of the Graduate School of the University of Arkansas at Little Rock, Johanna Miller Lewis individually and in her official capacity as Associate Dean of the Graduate School of the University of Arkansas at Little Rock, Michael Gealt inidividually and in his official capacity as Dean of the College of Science and Mathematics at the University of Arkansas at Little Rock, John Bush individually and in his official capacity as Chair of the Biology Department of the University of Arkansas at Little Rock, Haydar Al Shukri individually and in his official capacity as Chair of the Applied Science Department of the University of Arkansas at Little Rock and Associate Dean on Research of the College of Science and Mathematics of the University of Arkansas at Little Rock, Mindy Wirges individually and in her official capacity as Employee Relations Manager of Human Resources of the University of Arkansas at Little Rock, Defendants: Matthew Blayne McCoy, LEAD ATTORNEY, University of Arkansas - Office of the General Counsel, Little Rock, AR.

Page 912

OPINION AND ORDER

J. LEON HOLMES, UNITED STATES DISTRICT JUDGE.

Olga Tarasenko was a tenured biology professor at the University of Arkansas at Little Rock.[1] She was terminated for cause

Page 913

in the fall of 2012 for allegedly making discriminatory and threatening comments to a student. Tarasenko alleges that the University and other defendants discriminated against her due to her sex and her national origin and violated her Fourteenth Amendment due process rights during the investigation and appeals process. Based on those allegations, she has asserted claims for violations of her due process, equal protection, and free speech rights. She also alleges that she was subjected to sex discrimination, national origin discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Lastly, she alleges under state law that the defendants violated the Arkansas Civil Rights Act (Ark. Code Ann. § 16-123-105)[2] breached her contract, tortiously interfered with her contract, and committed the tort of outrage.

The defendants have moved to dismiss the complaint for failure to state a claim upon which relief may be granted. Tarasenko has responded, and the defendants have replied. For the following reasons, the motion to dismiss is granted.

I.

Tarasenko began as a tenure track assistant professor in the UALR biology department on July 1, 2005.[3] ¶ 34. She was granted tenure on April 13, 2011, and was promoted to associate professor effective July 1, 2011. ¶ ¶ 35 and 36.

In the spring of 2009, a graduate student named Souzan Eassa selected Tarasenko as her major Ph.D. advisor. ¶ 38. On February 14, 2012, Eassa submitted her proposal to her dissertation committee, which did not approve of it. ¶ ¶ 41 and 42. Eassa blamed Tarasenko for the lack of approval and confronted her on February 15, 2012, as she was entering a class that she was about to teach. ¶ ¶ 43 and 44. Eassa claims that Tarasenko said, in front of the class, that Eassa was Iraqi and would kill a particular student. ¶ 46. On February 16, 2012, according to Eassa, Tarasenko said that she would kill Eassa and " made a gun gesture with her hand and pointed it at Plaintiff [sic]." ¶ ¶ 48 and 49. According to Tarasenko, no reports were made regarding these two incidents for two months. ¶ ¶ 47 and 50.

On May 8, 2012, Tarasenko suggested that Eassa apply for an " Incomplete" grade because otherwise Eassa would receive no credit. ¶ 51. The following day, Tarasenko filed an Academic Integrity Report on Eassa notifying the University that Eassa had committed academic fraud. ¶ 52. Sometime after this, Haydar Al-Shukri, who was chairman of the UALR Applied Science department, solicited written statements from students setting forth allegations against Tarasenko, including those pertaining to the events of February 15 and 16. Id. ¶ 54. On May 11, 2012, University administrators, including Patrick Pellicane (Dean of the graduate school), Al-Shukri, Michael Gealt (Dean of the College of Science and Mathematics), and Johanna Miller Lewis (Associate Dean of the graduate school) held a meeting with Eassa and several other students. ¶ 53. The same administrators, along with

Page 914

John Bush (Chairman of the Biology Department) and Tom Lynch[4] held a meeting on May 15, 2012 which resulted in Pellicane and Gealt visiting the University legal counsel, Mary Abernathy, after which Pellicane wrote a letter to Tarasenko outlining the allegations against her but not naming her accusers. ¶ ¶ 57 and 58.

On May 29, 2012, Interim Provost Sandra Robertson, Associate Vice Chancellor Christina Drale, Pellicane, Gealt, Lewis, and Al-Shukri held a meeting with Tarasenko to discuss the allegations. ¶ 65. Prior to this meeting, Lewis announced that she was assuming the role of Eassa's faculty advocate. ¶ 69. Tarasenko alleges that investigating student allegations against a professor is outside the scope of Drale and Lewis' job responsibilities. ¶ ¶ 67 and 68. At the May 29 meeting, Tarasenko informed the administrators that Bush made the following statements to her between 2006 and 2012: " No grants-gulag," " No Happy Students-gulag," and " No publications-gulag." ¶ ¶ 75 and 76. A gulag is a concentration camp where the former Soviet Union imprisoned people and Tarasenko's country of origin is a former member of the Soviet Union.[5] ¶ ¶ 77 and 78.

Pellicane initiated various meetings with students and administrators even though no University policy provided for him to do so. ¶ ¶ 83-86. Gealt admitted he thought Al-Shukri was biased, but Al-Shukri continued his involvement with the investigation. ¶ 88-89. On June 6, 2012, Gealt and Pellicane authored a letter to Robertson stating there was sufficient evidence to pursue further investigation of the allegations against Tarasenko. ¶ ¶ 90 and 94. Al-Shukri, Drale, and Abernathy also were involved in drafting this letter. ¶ ¶ 90-93.

A meeting was held with Tarasenko, Eassa, Drale, and Mindy Wirges (from the human resources department) regarding Eassa's grade appeal even though no policy exists allowing or requiring personnel from the human resources department to be present at such a meeting. ¶ ¶ 97-103. Although Drale provided Wirges with the documents that Eassa had provided supporting her appeal, she did not provide Wirges with any documentation that Tarasenko had provided. ¶ ¶ 98-99.

On July 23, 2012, Bush informed Tarasenko that the allegations against her were being investigated and that her fall duty assignments were being changed pending the outcome. ¶ 106. Two days later, on behalf of Eassa, Lewis filed a charge of discriminatory harassment against Tarasenko due to the February 14 and 15 incidents. ¶ 107. Wirges then initiated a human resources investigation into these incidents and interviewed Eassa and the other students making the accusations. ¶ ¶ 108 and 110. She also met with Tarasenko on August 17, 2012. ¶ 111. The students' identities were not divulged during that meeting. ¶ ¶ 111-13. On August 25, 2012, Tarasenko provided information controverting the allegations, including statements from other students present when the incidents took place. ¶ 115. A meeting took place on August 30, 2012 between Anderson, Gealt, Robertson, Drale, Wirges, Pellicane and Bush to discuss Tarasenko's employment. ¶ 133. This meeting was not authorized or required by any University policy relating to investigations. ¶ ¶ 134-35.

During her investigation, Wirges did not interview the students who provided information opposite to that provided by Tarasenko's

Page 915

accusers. ¶ 116. When Wirges concluded the investigation on August 27, she reported that her investigation substantiated the allegations. ¶ ¶ 117-18. Wirges attempted to conduct her investigation in accordance with the staff handbook, even though Tarasenko is governed by the faculty handbook, not the staff handbook; and even then Wirges did not comply with the staff handbook. ¶ ¶ 119-22. The University policies require: a copy of the discrimination charge must be provided to the accused; a discrimination charge should be filed within thirty days of the incident or a written waiver request be obtained and notification of approval must be maintained in the file; an initial hearing with certain parties; and the accused must be given seven days to respond to the discrimination charge; but none of these procedures was followed. ¶ ¶ 123-28.

Tarasenko also alleges that Wirges violated University policy by failing to inform Tarasenko of additional time needed to complete the investigation, failing to inform her of the status of the investigation, failing to inform her of the revised deadline for the completion of the investigation, failing to inform her and her supervisor of the investigative findings, failing to discuss alternative conflict resolution, and failing to provide ...


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