On August 30, 2004, Plaintiff Ann Doughtery ("Plaintiff" or "Dougherty") filed a complaint (#43) against Defendants University and Community System of Nevada, Robert Karlin, John Lilley, Jane Long, John Frederick, and James Taranik ("Defendant", "Defendants", "UCCSN", "Karlin", "Lilley", "Long", "Frederick" and "Taranik") alleging Title VII retaliation, violation of her right to free speech under 42 U.S.C. §1983, and defamation under the Due Process Clause of the Fourteenth Amendment and Nevada state law. On September 24, 2004, Defendants filed a counterclaim (#34) against Plaintiff alleging breach of contract, fraud and unjust enrichment. On April 18, 2005, Plaintiff filed a Motion (#48) for Summary Judgment on Defendant's Counterclaim. On May 4, 2005, Defendants filed an Opposition to Plaintiff's Motion for Summary Judgment and a Counter-Motion for Summary Judgment (#54), and Plaintiff opposed the motion (#70) and filed a response (#69) on August 22, 2005. Defendant filed a reply (#87) on September 12, 2005.
The motions are ripe and we will now rule on them.
Plaintiff is an attorney and member of the Washington State Bar who was hired by Defendant UCCSN as the Director of Affirmative Action at the University of Nevada, Reno ("the University") in 1995.
Plaintiff received a complaint of sexual harassment from Dr. Mary Lahren and investigated these charges, issuing a report concerning her investigation in which she found that Dr. Lahren's charges of sexual harassment had merit. The report was issued only to President Lilley and was not disclosed to the public, Dr. Lahren or the mediation committee.
On June 26, 2002, the University issued Plaintiff a "Notice of Non-Reappointment" terminating Plaintiff's employment, pursuant to the UCCSN Code, on June 30, 2003.*fn1 On July 22, 2002, Plaintiff requested reasons for her non-reappointment and additional information relating to her job performance. President Lilley responded to Plaintiff's request as follows:
You have been issued a notice of non-reappointment as the result of my loss of confidence in you, based on the following:
1. failure to promote a service-oriented approach in the Affirmative Action Office;
2. ineffective sexual harassment workshops;
3. inconsistent application of search documentation procedures;
4. lack of cooperation with administration and academic rules;
5. incomplete investigations, incomplete reporting of investigations, failure to maintain objectivity in investigations, and drawing conclusions with insufficient evidence;
6. inappropriate denial of release of information to administration; and
7. poor relationship with the campus and complaints about, among other points, biased investigations and search delays.
After having been given the reasons for her nonreappointment, Plaintiff requested reconsideration. Such reconsideration was granted but the decision by President Lilley did not change after reconsideration.
On July 26, 2002, President Lilley reassigned Plaintiff from her position as the Director of Affirmative Action to Special Assistant to the Vice Provost. Her compensation and benefits did not change, although Plaintiff was given different assignments and was told that she was free to search for other employment beginning in July 2003 elsewhere.
On January 7, 2003, Plaintiff's request to be placed on leave was granted. On January 24, 2003, Plaintiff emailed Vice Provost Ort asking to be placed on annual leave effective February 3, 2002. Vice Provost Ort approved this leave. On March 14, 2003, Plaintiff had exhausted all of her annual leave. On March 31, 2003, when Plaintiff still had not returned to work, President Lilley wrote Plaintiff informing her that she had exhausted her annual leave and requesting that she inform the University of her intentions. Plaintiff did not respond to President Lilley's request.
On May 12, 2003, at Vice Provost Ort's request, Plaintiff met with her to discuss Plaintiff's employment status. At this time, Plaintiff claimed that she was searching for employment without much success. On May 22, 2003, Vice Provost Ort sent Plaintiff a memorandum summarizing the meeting. Ms. Ort requested that Plaintiff read the memo in detail and respond as soon as possible. Although Plaintiff claims she read the memo, she did not respond.
Without informing the University, Plaintiff had applied for a job with Washington State University on April 18, 2002, several months before she obtained the Notice of Nonreappointment from the University. Plaintiff interviewed for the position on September 22, 2002, and officially accepted the position at Washington State University in December 2002. Plaintiff relocated to Washington state in January 2003 and began working for Washington State University full-time on January 13, 2003.
Plaintiff had not informed the University at any point that she was dually employed full-time at another University in another state. Even at her meeting with Vice Provost Ort, when asked whether she was pursuing employment opportunities and applying to other jobs, Plaintiff did not disclose her dual employment status.
Plaintiff contested the timeliness of the Notice of NonReappointment that had been mailed to her on June 26, 2002. For this reason, the University reissued an additional Notice of NonReappointment to Plaintiff on June 9, 2003, informing her that her employment with the University would end June 30, 2004. The reasons given in the second Notice of Non-Reappointment were the same as the first.
Despite the fact that she had used all her annual leave for the year and had been requested by the University to explain her absence, Plaintiff continued to be a no-show at her job.
The University continued to pay Plaintiff as was required under her employment contract and the UCCSN Code. When it became clear that Plaintiff would not return to work, the University instituted termination procedures against Plaintiff based on her failure to return to work.
On June 19, 2003, Dr. Laden wrote to Plaintiff and informed her that Dr. Laden had been appointed as Administrative Officer to conduct her termination proceedings under the Code's disciplinary procedures. Dr. Laden informed Plaintiff she was being terminated for having violated Section 6.2.1 for unauthorized absence from duty or absence of leave privileges because Plaintiff had exhausted her annual leave on March 14, 2003, and had continued to be absent from her employment without submitting any medical leave forms. Plaintiff contacted Dr. Laden and informed her that Plaintiff had asked her medical provider to send a letter after the May 12 meeting with Vice Provost Ort. In addition, Plaintiff complained to Dr. Laden that it was hard to be on campus without meaningful work and that she believed the termination proceedings being conducted by Dr. Laden were being instituted in retaliation for the complaint that she filed with the Nevada Equal Rights Commission (NERC) and the Equal Employment Opportunity Commission (EEOC).
On July 14, 2003, Vice Provost Ort contacted Plaintiff informing her that the University had yet to receive a complaint filed by Plaintiff with NERC or the EEOC. Vice Provost Ort also informed Plaintiff that a letter had been received from Plaintiff's medical provider and that the letter did not provide any reason to excuse Plaintiff from performing her job in the past or in the future.
Plaintiff was contacted by Dr. Laden on July 26, 2003, to try and set up a convenient time to get together and discuss peremptory challenges of committee members for the termination proceedings. Plaintiff told Dr. Laden that she did not think it fair to institute proceedings while she had an active EEOC complaint.
Vice Provost Ort received Plaintiff's EEOC complaint on July 21, 2003.
On July 30, 2003, after several attempts by Dr. Laden to contact Plaintiff and get together with her to discuss the termination proceedings, Plaintiff emailed Dr. Laden stating that she not longer wished to participate in the termination proceedings and that she considered her employment with the University terminated. When Dr. Laden replied to her email asking whether this should be considered her letter of resignation, Plaintiff did not respond.
As of August 1, 2003, Plaintiff had been working for WSU for approximately seven (7) months. During that period, her paychecks were being deposited by the University directly into her checking account. Plaintiff never informed the University, even after Plaintiff notified Dr. Laden that she considered her employment terminated, that the University no longer had an obligation to deposit funds into her account.
On August 12, 2003, Plaintiff was informed by Dr. Laden that her termination hearing was scheduled for September 5, 2003. Plaintiff did not respond.
On September 5, 2003, Dr. Laden recounted to Plaintiff in a letter the result of the termination hearing against Plaintiff. The committee had ruled that Plaintiff had violated her contractual obligations by being absent from duty for longer than authorized without a viable excuse. She was ordered to pay restitution to the University in the amount of $41,402.94. She was terminated as of August 31, 2003. The termination determination was then sent to President Lilley under the UCCSN Code. The ...