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Jones v. University of Iowa

Supreme Court of Iowa

August 23, 2013

PHILLIP E. JONES, Appellant,
v.
UNIVERSITY OF IOWA; THE BOARD OF REGENTS FOR THE STATE OF IOWA; SALLY MASON, President of the University of Iowa and Individually; and THE STOLAR PARTNERSHIP, LLP, Appellees.

Appeal from the Iowa District Court for Johnson County, Fae E. Hoover-Grinde, Judge.

Former employee appeals from the district court's denial of his motion to compel discovery and the district court's grant of summary judgment in favor of the defendants on his claims of wrongful termination of employment and related causes of action.

David J. Dutton, Cheryl L. Weber, and Erin Patrick Lyons of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellant.

Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and Jordan G. Esbrook, Assistant Attorneys General, for appellees University of Iowa, The Board of Regents for the State of Iowa, and Sally Mason.

Gregory M. Lederer and Megan R. Dimitt of Lederer Weston Craig PLC, Cedar Rapids, for appellee Stolar Partnership, LLP.

ZAGER, Justice.

Phillip E. Jones, dean of students and vice president of student services at the University of Iowa, was terminated from his employment by University of Iowa President Sally Mason. This employment decision was based partially on a report from the Stolar Partnership (Stolar), a law firm retained by the Board of Regents for the State of Iowa (Regents), to investigate the University's response to a sexual assault of a student– athlete by other student athletes.

Jones sued the University of Iowa, Mason, the Regents, and Stolar for wrongful termination and related causes of action. The district court granted summary judgment to all the defendants on all claims. Jones appealed, and we retained the appeal.

Jones asserts the district court committed error when it denied his motion to compel discovery of hundreds of communications, which the defendants claimed were privileged. Jones also claims the district court erred when it concluded the attorney general's certification that Mason acted within the scope of her employment was conclusive on this issue. Finally, Jones contends the district court erred when it granted summary judgment to all of the defendants on his various claims. For the reasons set forth below, we affirm the rulings of the district court.

I. Background Facts and Proceedings.[1]

On September 23, 2008, Jones was terminated from his employment as dean of students and vice president of student services at the University of Iowa. Jones had been dean of students since about 1981. He did not have a written contract of employment with the University, and the parties agree that he was an at-will employee. Jones reported directly to Mason, president of the University. In his position as dean of students, Jones oversaw a comprehensive array of University student services, including residence life, the Iowa Memorial Union, disciplinary processes, student government, and numerous other departments and functions of the University. He was the administrator of the Code of Student Life and related policies and regulations governing students. Mason terminated Jones's employment after reviewing a report prepared by Stolar, which was critical of Jones's handling of an alleged October 2007 sexual assault of a female student–athlete perpetrated on her by two members of the University football team. The assault occurred at a University dormitory in the early morning hours of October 14, 2007.[2]

On the morning of October 15, Fred Mims, associate athletic director for student services, advised Jones's office by telephone of the alleged sexual assault. Mims had been contacted by the head coaches of both the victim and the perpetrators, and had discussed the incident with Gary Barta, the University's athletic director. Jones learned directly of the incident later that day when Steve Parrott, director of university relations, advised him and Marcus Mills, general counsel for the University, of "an incident or . . . a sexual assault in a residence hall" that had occurred over the weekend. Jones did not take any action as a result of this information. During the next several days, the department of athletics (DOA) commenced an informal investigation into the incident. DOA met with the victim and her father, the alleged perpetrators, and otherwise attempted to handle the incident on an informal basis. This was purportedly pursuant to the direction of the victim and her father. This informal investigation also involved many additional members of the university community.

Jones discussed the incident with Mims on October 18 and 19. By that time, the football players had been suspended from the football team. In their discussions, Jones expressed concern about "double jeopardy" in further action involving the football players. Mims explained the alleged perpetrators had been suspended for team rule infractions for withholding information from the team coach, not due to the allegations of sexual assault which were governed by the Code of Student Life. It was determined the alleged perpetrators should be informed of the possibility of further action in writing.

On October 19, Mims again contacted Jones to discuss the incident and how Jones's office planned to proceed. Jones expressed concern about the handling of the investigation and stated that the incident should be reported to the Office of Equal Opportunity and Diversity (EOD)—the University's administrative department designated to investigate complaints of sexual assault. At the conclusion of this conversation, Jones discussed the situation with his associate dean, Tom Baker. Jones's assessment was, "[W]ell, let's see if we get a complaint. When we get a complaint, then we can do something. Otherwise, all these rumors, we can't do very much with them."

On October 23, DOA decided that all notes and investigative interviews gathered as part of its informal investigation should be finalized and a report turned over to the office of EOD, the office of student affairs, and the general counsel. Jones received his copy of the report late that morning or early afternoon. Jones scanned through the documents, but because it did not contain a formal, signed complaint, he elected to place the report in a general disciplinary file. Jones did not call EOD, contact Mims, contact the victim, or take any other action at that time.

As a result of the DOA report, the EOD commenced a formal investigation. While this formal investigation was proceeding, the victim and her parents contacted several university officials in an attempt to obtain information regarding the status of the investigation. During this time, the victim was subjected to continued harassment and retaliation from members of the football team, as well as other student athletes. This included physical threats and verbal insults in the dormitory dining area in the building where the assault allegedly occurred, and where she still resided.

Due to the continued harassment, and general dissatisfaction with the University's response to the incident, the victim filed a criminal complaint with the University Department of Public Safety on November 5. She also reported the assault to the Johnson County Attorney, who charged and prosecuted the two football players. Around this time the victim first learned of the second perpetrator who allegedly assaulted her while she was unconscious. Upon learning of his identity, she realized this individual was living down the hall from her.

On November 13, at the direction of Mills, the victim's mother contacted Jones to discuss the continuing harassment and the victim's housing situation. During this conversation, Jones indicated to the victim's mother that he "had nothing" on the incident, and he did not know who she (the mother) was. Jones also indicated that without a complaint, specific information, or credible allegations sent to his office, he was unable to take action.

On November 15, EOD completed a formal written report of its findings pursuant to its investigation.[3] The next day, Jones met with Chuck Green, director of public safety for the University, as well as the victim, the victim's mother, and a rape victim advocate. At that meeting, the victim requested that she be released from her housing contract, a request which Jones granted. The victim also provided Jones with the names of several student athletes who she claimed had subjected her to harassment. Jones subsequently sent letters to those individuals notifying them of the University's anti-retaliation policy. However, the letters did not inform these individuals that they had already been accused of conduct in violation of the Code of Student Life. Jones did not initiate any in-person contact with these individuals. He had no additional contact with the victim or her family and did not take any other action with respect to the alleged assault.

Also on November 16, the Regents asked their general counsel, Tom Evans, and their acting executive director, Andrew Baumert, to conduct an investigation into the University's compliance with University policies and procedures in responding to the sexual assault complaint. While this investigation was occurring, the victim's parents wrote two letters to various University officials sharply critical of the University's handling of the incident. The first letter was written on November 19, 2007, and the second letter was written on May 16, 2008. The second letter stated, in part:

My purpose in writing is to address the failings of your system and the effects those failures have had on [the victim]. . . . I include Dean Jones because he told [the victim] and me in person that [the victim] would be protected by him and his office for the duration of the year. That did not happen. [The victim] was taunted, heckled, harassed for the entire school year. . . .

Jones received both letters, read them line by line, and placed them in a general file without taking any additional action. No one within the University turned these letters over to the Regents.

After Evans and Baumert's investigation, a report was submitted to the Regents on June 11, 2008. Evans and Baumert concluded:

After a comprehensive review of the facts of the alleged incident and each of the applicable University policies, it is clear that University officials fully complied with internal procedural requirements. The University fully explained the various reporting options to the alleged victim, conducted investigations as required, offered the victim appropriate accommodation and expressed full support for the victim regardless of the option which she elected to pursue.

In June 2008, Jones informed Mason that he intended to retire in June 2009. Mason agreed to accept his resignation but requested Jones not make the decision public at that time so that he would not appear to be a "lame duck." Jones agreed to Mason's request. During this conversation, Jones also expressed to Mason his intention to become a higher education consultant after his retirement from the University.

The Regents learned of the two letters written by the victim's parents when the letters became public in mid-July. On July 22, the Regents convened a special meeting and established an advisory committee to address two issues:

1. Reopen the investigation of the University of Iowa's handling of the alleged sexual assault on a female student on the morning of October 14, 2007, including but not limited to:
a. Using the June 12 Board's General Counsel's report as a starting point, conduct a review of all actions taken by University personnel in response to the alleged assault from October 14, to the present; b.Assess whether the University's policies and procedures were followed;
c. Evaluate each of the charges advanced in the November and May letters from the alleged victim's mother to the University; and
d. Recommend any policy changes or other actions determined to be appropriate.
2. Examine the circumstances around the decision not to disclose to the Board of Regents the existence of the November and May letters, how the decision was made, and on what basis. Again, the Advisory Committee is to recommend any policy changes or other actions appropriate.

The committee was also authorized to "hire outside counsel as needed."

An agreement for special counsel was entered into between the Regents and Stolar, and in late July, Stolar began its investigation. The special agreement authorized Stolar to conduct the following activities:

(1)Review[] the specific allegations contained in the November 19, 2007, and May 16, 2008, letters written by the alleged victim's parents;
(2)Conduct[] personal interviews with the alleged victim and her parents;
(3)Conduct[] personal interviews of University students, officials and personnel, including, but not limited to, those who had been involved in past investigations of the incident;
(4)Interview[] persons with expertise in the areas of sexual violence victims' advocacy and rights;
(5)Analyze[] the reasons all relevant documents were not provided to the Board of Regents during its prior investigation of the incident;
(6)Review[] all current applicable University policies and procedures, including sexual assault and sexual harassment policies;
(7)Review[] such policies and procedures in conjunction with applicable state and federal laws and regulations;
(8) Evaluate[] the impact of relevant laws and court orders upon the University's response to the incident; and
(9)Review[] past investigations and recommendations of sexually related complaints and incidents at the University.

As part of its investigation, Jones and numerous other officials at the University were interviewed. Stolar also reviewed University policies and procedures, provisions of the Family Educational Rights and Privacy Act (FERPA) and its federal regulations, provisions of the Health Insurance Portability and Accountability Act ...


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