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Hunt v. Forbes

April 26, 2010

MEGAN HUNT, PLAINTIFF,
v.
MICHAEL I. FORBES, IN HIS INDIVIDUAL CAPACITY, AND ILLINOIS STATE UNIVERSITY, DEFENDANTS.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Now before the Court is Defendant Illinois State University's ("ISU") Motion for Summary Judgment [#34]. For the reasons set forth below, ISU's motion is GRANTED.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as the claim arises under Title IX, 20 U.S.C. § 1681(a).

BACKGROUND

Defendant Dr. Michael Forbes ("Forbes") was a tuba/euphonium professor in ISU's School of Music from August 2002 until May 2006. In the fall of 2002, Forbes attended a student's house party, the "Tuba Turkey" party, with ISU music students.*fn1 No other faculty members attended the party, and Forbes did so because he felt pressured by his students due to his faculty position. Kristina Blankenfeld ("Blankenfeld"), an ISU music student, attended that Tuba Turkey party as well. Afterward, she complained to Dr. James Major ("Dr. Major"), ISU's Director of the School of Music, that Forbes' presence at the party made her feel uncomfortable, and while at the party, Forbes suggested she take off her shirt and make out with the male tuba students.*fn2 Dr. Major called ISU's Office of Diversity and Affirmative Action ("ODAA"), and was told to encourage Blankenfeld to go speak with the ODAA. Dr. Major told Blankenfeld to go to the ODAA, but she did not. Dr. Major then spoke with Forbes about Blankenfeld's accusation, directed him to act professionally and not attend any parties or functions where there was drinking and students, and got the School Faculty Status Committee ("SFSC")*fn3 involved to discuss the incident with Forbes. Dr. Major also transferred Blankenfeld from Forbes' tuba instruction to another professor. In the three years following the Tuba Turkey party incident, Dr. Major learned of no new incidents or complaints involving Forbes going to parties where students and alcohol were present.

In February 2005, Blankenfeld attended another student house party where Forbes and other faculty members were present. Afterward, in March 2005, she complained to the ODAA that Forbes had made suggestive comments about her skinny appearance, put his arm around her, put his hand up her shirt and started rubbing her back, and eventually leaned in and kissed her on the cheek. Blankenfeld went forward with a formal complaint against Forbes. The ODAA investigated the complaint, and interviewed Blankenfeld and Forbes, as well as Dr. Major, Tabitha Boorsma, Nat McIntosh, Dr. John Stevens, and Matt Doherty.*fn4 The ODAA interviewed the people Blakenfeld named as those who she said saw what happened between her and Forbes. The formal investigation revealed that the named individuals denied seeing Forbes engage in inappropriate conduct. In June 2005, the ODAA informed Forbes that it did not find any evidence to substantiate Blankenfeld's allegations that Forbes acted in an unprofessional, inappropriate, or sexually harassing manner. Dr. Major also received a copy of the ODAA investigation findings, and afterward had a conversation with Forbes that he was disappointed with the latter going against his earlier directive to not attend parties where students and alcohol were present. At the same February 2005 party which prompted Blakenfeld's formal complaint against Forbes, Plaintiff Hunt alleges that she too was sexually harassed by Forbes. Hunt alleges that Forbes bumped up against her, put his hand on her stomach, and told her she felt really good. Hunt did not report the incident at that time.

On September 26, 2005, the ISU Police Department received a letter from the City of Saint Peter, Minnesota's Police Department. The letter explained that Annika Torkelson, a 19-year-old female student at Gustavus Adolphus College, alleged that she had a sexual encounter with Forbes while he was visiting the school for a Tubonium program that included visiting college staff members. Torkelson further alleged that following the program, she felt pressured into doing sexual acts with Forbes in her dorm room. She did not pursue criminal charges. In a letter dated October 31, 2005, from Ira Schoenwald, ISU's Associate Vice President of Human Resources, Forbes was informed of the communication from Gustavus Adolphus College regarding the incident with Torkelson, he was told the matter was referred to the ODAA, and was told Schoenwald requested that Dr. Major suspend Forbes' obligations to represent ISU off campus during the investigation. On November 2, 2005, Dr. Major sent Forbes a similar letter and explained that it was mandatory that Forbes would not represent ISU outside of Bloomington/Normal pending the investigation's completion. Following the formal investigation into Torkelson's complaint by ISU's ODAA, it concluded that no evidence was found to substantiate her allegations of Forbes' unprofessional, inappropriate, or unwelcome sexually harassing behavior. But the ODAA further noted that it was of concern to it that Forbes had two allegations of sexual harassment filed against him within a six month period of time. In a January 18, 2006, letter, Forbes was informed of the ODAA's findings following the investigation into Torkelson's complaint. On March 31, 2006, Schoenwald sent Dr. Major a letter requesting that the restrictions on Forbes' external activities be lifted as a result of the investigation's findings. During oral argument, ISU elaborated that the ODAA attempted to contact Torkelson

Plaintiff Hunt played the trombone, and was a music student at ISU's School of Music from Fall 2003 through Spring 2007. Between the February 2005 house party and December 2005, a number of incidents occurred between Hunt and Forbes involving Forbes commenting to or touching Hunt in what Hunt believed to be a sexually harassing manner. The incidents continued into 2006. Some occurred on a stairwell at ISU, another incident occurred in Hunt's car in February 2006, another in a practice room at Cook Hall on ISU's campus in March 2006, and finally an incident on April 22, 2006. Prior to April 22, 2006, Hunt had babysat for Forbes' daughter a number of times at the home of Forbes and his wife during Spring 2006. On April 22, 2006, Hunt arrived at the Forbes' home to baby-sit their daughter and found only Forbes and his daughter home. Soon after her arrival, an incident between Hunt and Forbes ensued where Forbes kissed a tattoo on Hunt's hip, they kissed, Forbes exposed his penis, and Hunt kissed it.

On April 29, 2006, Hunt told Dr. Major about what happened at Forbes' home on April 22, 2006. Dr. Major directed her to go to the ODAA, and days later when Hunt had not do so on her own, he escorted her to Shane McCreery ("McCreery"), Director of the ODAA, so that she could report the incident. Because McCreery believed the incident was sexual assault rather than sexual harassment, he escorted Hunt to the ISU police to make a complaint, and the ODAA did not conduct any further investigation into the matter because it had been turned over to the ISU police. Dr. Major also did not have any further involvement in the matter as a result of the ISU police becoming involved. The first time ISU learned of Forbes' alleged sexual harassment of Hunt was on April 29, 2006, when Hunt approached Dr. Major about the baby-sitting incident. Hunt ultimately cooperated with a criminal investigation into Forbes' conduct, and participated in surreptitiously recorded phone calls between her and Forbes.

In the spring of 2006, not long after the ODAA's investigative findings regarding the Torkelson complaint came out, the SFSC discussed Forbes' continued employment at ISU. The SFSC considered his performance as a faculty member, his previous insubordination in failing to follow Dr. Major's directives regarding parties, and his possibly inappropriate behavior that had been investigated and found unsubstantiated by the ODAA. In a March 2006, letter, ISU informed Forbes that his employment would terminate at the end of the 2006-07 school year. In an April 28, 2006, letter, Forbes informed Dr. Major that he was resigning his position effective May 15, 2006, and he would be taking a position at another university.

On April 16, 2007, Hunt filed her Complaint against Forbes and ISU, alleging a Section 1983 claim against Forbes*fn5 and a Title IX claim against ISU as a result of its alleged deliberate indifference to the sexual harassment of Hunt and other students at ISU. The matter is fully briefed, and oral argument was held on April 14, 2010. This Order follows.

DISCUSSION

I. Summary ...


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