Naca v. Macalester College
Filing
244
ORDER. IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion to supplement the record 238 is DENIED. 2. Defendant's motion for summary judgment 175 is GRANTED. 3. Plaintiff's remaining claims are DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on 9/20/2018. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
KRISTIN NACA,
Case No. 16‐CV‐3263 (PJS/BRT)
Plaintiff,
v.
ORDER
MACALESTER COLLEGE,
Defendant.
Peter J. Nickitas for plaintiff.
Sean R. Somermeyer, Kathlyn E. Noecker, and Terran C. Chambers, FAEGRE
BAKER DANIELS LLP, for defendant.
Plaintiff Kristin Naca was employed as a “Faculty Diversity Fellow” and then as
an assistant professor of poetry by defendant Macalester College (“Macalester”). Her
career at Macalester progressed smoothly until May 2015, when Jane Doe,1 a 2014
graduate of Macalester, reported that Naca had solicited sex from her shortly before she
graduated and began a sexual relationship with her shortly after she graduated. During
Macalester’s subsequent investigation, Naca admitted that she had invited Doe to her
home a couple of weeks before Doe’s graduation to discuss what Naca perceived as
sexual tension between them and, during that discussion, had offered to “make a pass”
at Doe. Naca further admitted that, three days after Doe graduated, Naca had again
1
Jane Doe is a pseudonym.
invited Doe to her home, where the two engaged in the first of what became multiple
sexual encounters. Macalester terminated Naca after conducting a formal investigation,
holding a hearing, and putting the matter through several layers of review.
Naca responded by suing Jane Doe and her parents in state court for defamation
and other claims. The parties eventually settled that lawsuit. While her state‐court
lawsuit was pending, Naca brought this action against Macalester in federal court, filing
an 81‐page complaint asserting 30 claims.2 The Court struck Naca’s initial complaint for
failure to comply with Fed. R. Civ. P. 8 and ordered Naca to file an amended complaint
of no more than 10,000 words. ECF No. 6. Naca responded by filing a 50‐page
amended complaint alleging 35 claims, including 26 discrimination or hostile‐
environment claims based on race/ancestry, national origin, sex, sexual orientation,
disability, and religion. ECF No. 8. The Court dismissed about two‐thirds of Naca’s
claims as implausible, ECF No. 64, and Naca later voluntarily dismissed her claim for
intentional infliction of emotional distress, ECF No. 100.
This matter is before the Court on Macalester’s motion for summary judgment on
Naca’s remaining claims of (1) discrimination on the basis of race/ancestry, national
origin, sex, sexual orientation, disability, and religion; (2) failure to accommodate
2
The last two counts were mislabeled “Count XXV” and “Count XXVI.” ECF
No. 1 at 72. They should have been labeled “Count XXIX” and “Count XXX.”
-2-
disability; and (3) breach of contract. For the reasons that follow, Macalester’s motion is
granted and Naca’s remaining claims are dismissed.
I. BACKGROUND
Before turning to the facts underlying the parties’ dispute, the Court pauses to
note that it has been unusually challenging to determine whether Naca’s version of
events is supported by evidence in the record because of two unfortunate tendencies of
her counsel: First, he frequently asserts facts in his briefs with no record citation or with
a citation to something that does not support the assertion (and may, in fact, be
completely irrelevant to the assertion). Second, he often cites to the record in a manner
that does not match the manner in which he organized his evidentiary submissions,
making it difficult (and occasionally impossible) to locate the document or part of a
document to which he is ostensibly referring. At oral argument, Naca’s attorney offered
a citation guide that cross‐references citations by docket number and page, but that
document itself has a number of citation errors and covers only a limited portion of the
record.
These two tendencies have combined to considerably slow the Court’s progress
through the record. Often, the Court has had to spend an inordinate amount of time
trying to locate a document that Naca’s counsel cites—and then, having found the
document, the Court has had to spend more time trying to decide if Naca’s counsel
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truly meant to cite the document. All in all, the inability of Naca’s attorney to submit
and cite to his exhibits in a coherent and accurate manner has caused the Court to waste
dozens of hours of its time.
Having done its best to locate all of the evidence that supports Naca’s claims, the
Court will now proceed to describe Naca’s version of events. The Court notes that
Naca’s version of events is strongly disputed by many of the people who will be
mentioned in this order. For purposes of deciding Macalester’s motion for summary
judgment, however, the Court is required to treat Naca’s version as true and draw all
reasonable inferences in her favor.
A. Naca’s Career at Macalester
In 2008, shortly after getting a PhD in English, Naca accepted a position as a
Faculty Diversity Fellow at Macalester. App. 18‐19 (22‐25).3 She later accepted a
tenure‐track position in the English Department as an assistant professor of poetry.
App. 24‐26 (47‐48, 51‐52, 55‐56).
1. Accommodation Requests for Academic Year 2012‐13
Naca was diagnosed with Valley Fever in 2012. App. 82 (277). In September
2012, Naca informed Jim Dawes, that year’s department chair, that her doctor had told
3
All citations to “App.” are to the appendix that Macalester submitted in support
of its motion. Where the appendix page reproduces multiple pages of a condensed
deposition, the Court provides a pincite in parentheses.
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her that she needed ten hours of office assistance per week. App. 27 (60). Dawes told
Naca that ten hours of assistance per week would be unprecedented and that she would
not get that many hours. App. 27‐28 (60‐62). He also said that other professors who
were denied tenure might claim that Naca received an unfair advantage and sue
Macalester on that basis. App. 28 (61‐62). Dawes and Naca agreed that she would
request five hours instead. App. 27 (60).
Naca emailed Kathleen Murray, Macalester’s provost, to request five hours.
App. 28 (63); App. 30 (70). Murray asked Naca for a note from her doctor. App. 30 (70‐
71); App. 90. Naca provided the note, which stated that, due to her medical condition,
Naca “requires administrative assistant; may require one to two hours off for rest in
afternoon.”4 App. 32 (77‐78); App. 90. A few days later, Murray told Naca to “go ahead
and find a student to help you for a couple of hours each week.” App. 93. Naca
responded that “[t]here may be a student worker who needs a few more hours. Which
is all I need.” App. 93. Murray formally approved one to two hours of administrative
assistance for the fall of 2012 and stated that “[w]e will reevaluate the situation prior to
the start of the second semester.” App. 98.
Naca was not satisfied with Murray’s response and complained either to Dawes
or to another senior faculty member at some unspecified time that she was not given the
4
The record copy of the doctor’s note is only partially legible. See App. 96.
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full five hours that she had requested. App. 31 (73‐74). She also testified that she asked
“work study” if she could get more hours but she “usually got one to two hours of
office assistance.” App. 31 (73). Naca did not raise the issue with Murray or anyone
from the employment‐services department, however. App. 31 (74‐75).
In late September 2012, Naca asked Kendrick Brown, an associate dean, for a
“short extension” of the deadline for submitting her pre‐tenure review materials.5
Nickitas Decl., Feb. 7, 2018 (hereinafter “Nickitas Decl.”) Ex. 7. Brown offered her an
extra day and Naca indicated that that was acceptable. Id.; App. 32 (79‐80). A few days
later, Naca asked for more time. Nickitas Decl. Ex. 7. Brown contacted Murray to ask
how to handle the request, and Murray replied that Naca should talk to Murray because
they “need to go through more formal processes.” Id. Naca did not talk to Murray;
instead, her department chair, Dawes, stepped in to “[run] interference” for Naca by
writing to Brown. App. 32 (80). The outcome of Dawes’s involvement is unclear;
according to Naca, the issue “wasn’t discussed any further” and she turned in her
materials without getting another extension. App. 33 (81). Naca successfully completed
5
The pre‐tenure review process typically takes place during the faculty member’s
third year. App. 521 (26). Faculty members who are undergoing pre‐tenure review put
together a dossier that includes their curriculum vitae, a professional‐development
plan, examples of their scholarship, teaching evaluations, and other materials. App. 521
(26‐27). If the faculty member passes pre‐tenure review, her contract is renewed for
another three years. App. 521 (27).
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pre‐tenure review in the spring of 2013, and the tenure‐review committee told her that
she was a strong candidate for tenure. App. 33 (81); App. 35 (89); App. 62 (196).
In January 2013, Dawes emailed Naca about research assistance to “make sure
that the arrangement is working out for you” and “see if you want to continue with the
same plan for the semester or want to do something more or different.” App. 100.
Dawes also mentioned that Naca could seek help from Bob Graf, the employment‐
services director. App. 100. Naca told Dawes that she wanted to keep the same plan.
App. 34 (85). Naca testified that she received one to two hours of research assistance
from the English Department, but that she did not receive office assistance and is not
sure whether she asked for it.6 App. 34‐35 (86‐89). Naca does not recall requesting any
other assistance for the spring of 2013. App. 34 (88).
6
Naca testified that there is a distinction between research assistants and office
assistants. App. 34 (86, 88). But the record is often inconsistent or confusing as to
which type of assistance is under discussion. For example, Naca seems to agree that she
received office assistance in the fall of 2012, App. 35 (89), but Dawes’s January 2013
email inquires about continuing with the research assistance that she received the
previous semester, App. 100. In addition, the English Department employs student
workers who are generally available to faculty for “office support tasks and extra
assistance on projects as needed and appropriate.” App. 695‐96 ¶ 4. Jan Beebe, the
department coordinator, avers that she arranged for one of these workers to assist Naca
every semester, from fall 2012 forward, with the exception of fall 2013 when Naca was
on sabbatical. App. 696 ¶ 6. It is unclear to the Court whether the assistance that Beebe
arranged would be considered office assistance or research assistance or both.
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2. Accommodation Requests for Academic Year 2013‐14
In April 2013, Naca met with Dawes to ask for a “medical leave” because she was
having difficulty concentrating and writing poetry. App. 35‐37 (92‐94, 96‐97). Naca did
not specify what she meant by the term “medical leave.” App. 36‐37 (93‐99). Naca
views the term as broad enough to encompass intermittent leave (ranging from an hour
or two to a day or two) when necessary, a course reduction, or an entire semester away
from teaching. App. 36 (93‐95). She did not have a particular type of “medical leave” in
mind when she spoke to Dawes. App. 37 (98‐99). Dawes agreed that Naca should
request medical leave (it is also not clear what Dawes meant by “medical leave”) and
told her to talk to Graf when she was ready. App. 37 (97, 99).
Naca took a sabbatical in the fall of 2013. App. 35 (89). While on sabbatical,
Naca contacted that year’s department chair, Terry Krier, to let Krier know about her
health issues and her intent to meet with Graf at some point. App. 38 (103); App. 106‐
07. Krier agreed that Graf would be “the right person to get in touch with” and told
Naca that “[i]f you eventually think you need to take time off, and/or defer tenure
processes, that’s important to try to get on top of, both for you and for me.” App. 106.
Sometime after this email exchange, Naca told Krier that she would probably need to
take an entire semester of medical leave because she was experiencing terrible pain.
App. 39 (105‐06); App. 44 (126‐28). On October 31 (while still on sabbatical), Naca
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notified Krier that she planned to contact Graf because she was worried about getting
through the next semester. App. 109. Krier told her not to hesitate to request leave.
App. 109.
Naca met with Graf on November 4, 2013 to discuss medical leave. App. 40‐41
(109, 114). Naca told Graf that she needed to take a medical leave for the upcoming
semester (spring 2014) and asked for copies of the leave form and written policy.
App. 41‐42 (113‐17); App. 44‐46 (126‐36); App. 84 (284‐86). Graf provided Naca a
general accommodation form, but did not provide a leave form or written policy.
App. 41‐42 (113, 115‐17).
Graf made several comments during the meeting that Naca perceived as threats.
For example, Graf said that if Naca couldn’t do her work, then Macalester would have
to find someone who could and that maybe Naca shouldn’t work at Macalester
anymore. App. 40 (110‐11). Toward the end of the meeting, they discussed how Graf
could help Naca obtain some type of leave or other accommodation. App. 115. Graf
advised Naca that this was just the beginning of the process “depending on what [her]
doctor requests for accommodations . . . .” App. 115. (Macalester’s leave policy
requires medical certification for any medical leave that lasts three or more days.
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App. 339.) Graf also directed Naca to online information about available
accommodations and the Family and Medical Leave Act (“FMLA”).7 App. 700 ¶ 8.
Naca’s doctor completed the accommodation form on November 14, 2013 and
Naca turned it in to Graf. App. 42 (119‐20); App. 119. In the space provided for
identifying the requested accommodation, the doctor wrote, “Kristin may need extra
time (time and 1/2) to complete assignments & tasks, & would benefit from a research
assistant 2‐4 hours per week. She may need 1‐2 days off per week during worst time of
illness.” App. 119; App. 42 (120). The form also stated that Naca “is now making rapid
but incremental improvements & may totally recover in 18‐24 months.” App. 119.
Consistent with this request, the doctor’s visit report for November 14 recorded that “if
[Naca] gets the help of a research assistant three to four hours a week then she is able to
get all of her essential tasks done that are required for her job in teaching.” App. 735.
The note also recorded “rapid” and “marked” improvement. App. 735. Under “plan,”
the report stated that “she will need a research assistant three or four hours per week”
and that “[s]he might need one or two days off per week during the worst times of her
illness.” App. 736.
7
In her brief, Naca denies that Graf directed her to online information about the
FMLA or anything else. ECF No. 231 at 9 n.44. But Naca cites no evidence (not even
her own testimony) to support this assertion.
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In December 2013, Graf called Naca’s doctor for more information.8 App. 732.
The doctor stated that Naca required one to two hours’ rest most afternoons; one to two
days off (intermittently and as needed) when she became exhausted; and four hours of
office assistance (presumably per week). App. 732. In his notes regarding that phone
call, Graf wrote “FMLA designation—yes,” indicating Graf’s conclusion that, if Naca
were to later request leave, her illness likely qualified as a “serious health condition” for
purposes of the FMLA.9 App. 701 ¶ 11; App. 710; see 29 U.S.C. §§ 2611(11),
2612(a)(1)(D).
Graf notified Naca that her request for two to four hours of student assistance
per week was granted for the spring 2014 semester. App. 121. Naca characterizes
Graf’s note granting her request for student assistance as a denial of her request for
8
In her brief, Naca asserts that Graf called her doctor twice. ECF No. 231 at 9.
Both Graf and the doctor identify only one phone call, however, and the doctor
explicitly asserted that she spoke with Graf only once. App. 700‐01 ¶¶ 9‐10; App. 733
¶ 12.
9
Naca contends that she was never told that she was eligible for FMLA leave. In
her email to Krier about her meeting with Graf, however, Naca stated that she and Graf
discussed “how [Graf] could help me establish either protected or unprotected leave, or
other accommodations.” App. 115. It seems likely that “protected” leave is a reference
to the FMLA. See App. 598 (52‐53) (testimony about Macalester FMLA policy regarding
whether leave is “designated as FMLA protected”). Regardless, as discussed below,
whether or not Graf or anyone else told Naca that her illness qualified as a “serious
health condition” is irrelevant, as Naca cannot show that she ever became “unable to
perform the functions of [her] position” and thus needed medical leave. 29 U.S.C.
§ 2612(a)(1)(D).
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leave, presumably because it did not address the issue of intermittent time off.
According to Graf, though, he did not address this request “because faculty largely
control their own schedules and have ample unscheduled time during the day and
week when rest can occur.” App. 702 ¶ 13. This assertion is supported by the record;
during the 2014 spring semester, Naca taught on Tuesdays and Thursdays for a total of
six hours each week. App. 725 ¶ 14. Including office hours and other duties, her total
scheduled time during the week was about 20 hours. App. 84 (283‐84).
Shortly after her November 4 meeting with Graf, Naca complained to Krier about
Graf’s threatening comments; at the time, however, she said that she was “not expecting
[Krier] to do anything.” App. 114. A few months later, Naca asked Krier to follow up
with Murray about Graf’s threats and about Naca’s request for medical leave and “any
other accommodation requests that I made.” App. 40 (110‐11); App. 44 (125); App. 47‐
48 (140‐42); App. 58 (179‐80); Nickitas Decl. Exs. 13, 15. Krier related these requests to
Murray, who responded that Graf was doing his job by asking Naca questions. App. 48
(143‐44). Murray and Naca agreed, however, that Naca could communicate with
Murray instead of Graf about her needs for accommodation. App. 50 (149).
3. Accommodation Requests for Academic Year 2014‐15
In April 2014—near the end of her first semester back from sabbatical—Naca met
with Krier and Murray to discuss the state of her health. App. 48‐49 (142, 146). Naca
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told Krier and Murray that she was experiencing “debilitating fatigue” and “incredible
difficulty” reading and retaining information, and that she needed to rest as much as
possible for multiple days in a row. App. 49 (147‐48). They discussed whether Naca’s
fall 2014 course load could be reduced and whether that could be accomplished by
flipping her fall and spring schedules.10 App. 49‐50 (148‐50). Naca was told that they
would discuss a one‐course reduction for spring 2015 if she still needed it at that time.
App. 49 (148); App. 123. At some point during the spring of 2014, Naca also asked Krier
for medical leave for the upcoming fall semester. App. 58 (179‐80).
It is unclear what became of these discussions about medical leave and reducing
or restructuring Naca’s course load. Consistent with the original schedule, Naca taught
three courses in the fall of 2014 and two in the spring of 2015. App. 725 ¶¶ 15‐16. Prior
to the fall 2014 semester, however, Naca asked for and received a lighter laptop
computer to accommodate her fatigue. App. 133; App. 52 (160).
In August 2014, Daylanne English, the department chair for the upcoming year,
emailed Naca to ask if she needed a research assistant and to inquire whether having a
work‐study student for office assistance had been sufficient for her needs. App. 135.
Naca responded that she did not need a research assistant but wanted to continue to
10
Macalester faculty normally teach a total of five courses per year. Naca was
scheduled to teach three courses during the fall of 2014 and two during the spring of
2015. App. 602 (67); App. 123.
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receive office assistance, explaining that Jane Doe had worked three to four hours per
week the previous semester. App. 135. English said that it would be fine for Naca to
employ a new office assistant for three to four hours per week, and Naca received the
requested assistance. App. 135‐36; App. 696‐97 ¶ 6. Later that fall, Naca asked for her
classes to be scheduled all in the same building to reduce the amount of walking that
she had to do. Macalester agreed. App. 53 (163‐64).
In December 2014, Naca’s doctor wrote a letter stating that Naca’s prognosis was
excellent, that the doctor expected “near complete recovery” by November 2015, and
that until then Naca “may continue to need an administrative assistant and occasional
time off in the afternoon to rest and recover.” App. 144.
4. Naca’s Religious Training
Naca is a practitioner of Santeria. App. 50 (152). In the summer of 2014, soon
after she had told Krier and Murray that she was experiencing “debilitating fatigue”
and feared that she would have difficulty meeting her responsibilities at Macalester,
Naca decided to undertake the training necessary to become a Santeria priestess.
App. 50 (151‐52); App. 128. Naca notified Murray that, during the first year of her
training, her “life, or roles, in public will be significantly diminished or limited.”
App. 128. In light of this, Murray and Naca met in July 2014 to discuss how the training
would impact her job. App. 51 (156). Murray told Naca that the training was a big
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undertaking and that she probably should not undertake it that year because it could
jeopardize her tenure. App. 52 (157). Murray also asked how it would affect Naca’s
health. App. 52 (157‐58). Naca told Murray that she was undergoing the training to
help with her illness. App. 52 (157‐58). In her notes from the meeting, Murray stated:
“After listening to her description of what she is doing, I do not think it should interfere
with that [tenure] preparation.” App. 131.
5. Tenure Review and Accommodation Requests for Fall 2015
As noted, Naca successfully underwent pre‐tenure review in spring 2013.
Tenure review typically takes place three years later, App. 521 (27), which means that
Naca would be up for tenure during the 2015‐16 academic year.11
On March 13, 2015, Naca participated in an informational meeting to discuss the
tenure‐review process. App. 60 (187‐88); App. 146. Later that day, Naca requested a
“course release”—meaning that she would teach one fewer class—for the fall 2015
semester. App. 60 (190). In May 2015, Murray met with Naca to explain the necessary
11
During her deposition, Naca testified that she was denied early tenure review
and that Murray and others had suggested that she delay the tenure‐review process for
health reasons. In her brief, however, Naca does not attempt to establish a prima facie
case of discrimination based on these allegations.
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documentation. App. 61 (191‐92); App. 151. Naca understood that her request for a
course release would be approved. App. 61 (192).12
In her brief, Naca also claims that, at the same May 2015 meeting with Murray,
Naca requested, and was denied, a research assistant; Naca further claims that she had
to pay for her own research assistance from 2014 forward. ECF No. 231 at 11. The part
of the record that Naca cites does not support her claims.13 There is evidence that, in
May 2015, Naca sought to have a particular Macalester student continue to assist her
after the student graduated. App. 507 (56‐57). But because work‐study funds cannot be
used to pay alumni, Daylanne English, the department chair, looked into whether
alternative sources of funding could be used. (English herself had previously used
faculty research funds for a similar purpose.) App. 507‐08 (57‐58). English asked
Murray, who told English to go through the employment‐services department.
12
Naca now claims that this request was still pending at the time of her
termination in September 2015. ECF No. 231 at 11. The testimony that Naca cites for
this proposition describes the notes from the May meeting with Murray. Those notes
merely say that Murray “walked through the documentation that Jason would need to
arrange for a course release” in the fall. App. 604 (74); Nickitas Decl. Ex. 19.
13
To support her claim that she paid for her own research assistance, Naca cites
“Macalester Bates 80:17‐81:14.” ECF No. 231 at 11 n.65. This appears to be a garbled
reference to pages 80 and 81 of the deposition of Daylanne English. These pages of
testimony do not provide evidence that Naca paid for her own research assistance,
however. Rather, Naca’s counsel asked if English was aware that Naca paid for her
own research assistant in the summer of 2014, and English testified that she did not
know where the funding came from. App. 513 (80‐81). Obviously, the questions of
Naca’s attorney are not evidence.
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App. 507‐08 (57‐58). As far as English was aware, the employment‐services department
denied the request. App. 508 (58).
As part of the tenure‐review process, Macalester solicits evaluations from all of
the candidate’s former students. App. 521‐22 (26‐28, 31‐32). It was apparently this
solicitation that prompted Jane Doe to come forward with the sexual‐misconduct
complaint that would eventually result in Naca’s termination. App. 714.
B. Naca’s Relationship with Doe
Doe graduated from Macalester in May 2014. While at Macalester, Doe majored
in English, and she studied under Naca for three years. App. 192; App. 231. During her
final semester at Macalester, Doe worked as Naca’s assistant and took Naca’s capstone
class. App. 200.
At Naca’s invitation, Doe went to Naca’s home on May 6, about a week and a
half before graduation.14 App. 237. According to Doe, she assumed that they were
14
During Macalester’s investigation, Naca and Doe both consistently identified
May 6 as the date of this meeting, and neither objected to or corrected the explicit
references to that date in Macalester’s various written decisions. App. 237 (Naca’s own
written timeline of events identifying the date of the meeting as “Tuesday May 6,
2014”); App. 180 (describing May 6 meeting under “Areas of Agreement”); App. 185
(Naca letter to Murray with repeated references to the May 6 meeting); App. 64 (204)
(Naca’s testimony that the letter was truthful and had been reviewed by counsel).
Pointing to vague, scattered references in the record regarding the timing of this
meeting, Naca now contends that it actually occurred on May 7 and thus (according to
Naca) after she submitted Doe’s final grade (as discussed below). Even if Naca is now
(continued...)
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going to grade papers. App. 714. Instead, Naca initiated a conversation about what she
perceived to be sexual tension between them. App. 231. Naca later recounted that she
said the following to Doe:
I need to talk to you about the intensity level of us working
together. It could just be the subject matter of your poems.
But the last two sessions our conferences I sensed, though
you probably don’t know it, that you were flirting with me.
There is an attraction between the two of us be it physical or
just creative. Either way—I wanted to have a conversation
because I don’t want us to be working together and for me,
or you, to be put in an awkward position.
I’m going to be frank. I need to know, first, if you noticed
the intensity? And if you do, do you want me to make a
pass at you? If you don’t want or intend that, we need to get
whatever it is out in the open and clear the air.
App. 237. According to Doe, during the course of their conversation, Naca touched her
knee and later put her arm around her waist. App. 714; App. 180, 182. Doe, who
described herself as shocked by Naca’s comments, rebuffed Naca’s advances. App. 237;
App. 714. After this encounter, Doe continued to work as Naca’s assistant for about
another week. App. 193; App. 263.
14
(...continued)
correct about the date of the meeting, however, it is clear Macalester believed, at the time
that it made the decision to terminate Naca, that the meeting occurred on May 6. Again,
the only two participants in the meeting consistently told Macalester that their meeting
occurred on May 6. Without any suggestion from Naca or anyone else that the May 6
date was incorrect, Macalester had no reason to scour the materials for the purpose of
second‐guessing the date of the meeting, and there is no indication that Macalester did
so.
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Doe graduated on May 17, 2014. App. 299 (80). Three days later, on May 20,
Naca invited Doe to her home, and the two began a sexual relationship. App. 193;
App. 238‐39; App. 714. Although the physical aspect of their relationship ended after
several weeks, the two continued in an emotionally intimate relationship until
September 2014, when Naca ended it. App. 180‐81. Doe later sank into a depression
and began seeing a counselor. App. 714.
C. Doe’s Complaint and Macalester’s Investigation
On May 22, 2015, Doe met with James Hoppe, the dean of students at Macalester,
to make a complaint against Naca. App. 366 (53‐54); App. 404. In addition to being the
dean of students, Hoppe was the deputy Title IX coordinator and thus was responsible
for receiving complaints of sexual assault. App. 366 (53‐54). Doe told Hoppe that she
had felt pressured into having a sexual relationship with Naca the previous year and
that the relationship had a negative impact on her. App. 369 (68). Hoppe told Doe
about her options for pursuing a formal complaint. App. 712 ¶ 6. On May 27, 2015,
Doe submitted a written complaint to Hoppe. App. 371 (75‐76); App. 716.
Hoppe notified Naca of Doe’s complaint on May 29 and gave her a packet of
information that included Macalester’s policies on harassment and sexual assault.
App. 62 (196‐98); App. 153‐76 (Naca Dep. Ex. 29); App. 178; ECF No. 226 at 60. Hoppe
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informed Naca that she was entitled to have a “support person” to help her through the
investigative process, but that she could not have an “advisor.” App. 63 (199‐200).
In the meantime, Hoppe notified Murray (the provost) of Doe’s complaint, and
Hoppe turned the investigation over to the Macalester College Harassment Committee
(“MCHC”). App. 371; App. 374 (76, 88). The MCHC consisted of Lisa Landreman,
Chad Higdon‐Topaz, and Roopali Phadke. App. 374 (88). Both Naca and Doe had an
opportunity to submit materials to the MCHC. App. 63 (201‐02); App. 477 (127). The
MCHC interviewed both Naca and Doe and reviewed records and other written
materials. App. 63 (201‐02); App. 477‐78 (127‐28, 131); App. 668 (150).
Among other things, the MCHC obtained documentation showing that Naca had
submitted her spring 2014 grades on May 15 of that year. App. 182; App. 262; App. 486
(161‐62). As it turned out, however, this date was incorrect; Murray learned on June 17,
2015, shortly after the MCHC issued its report, that Naca had submitted her grades for
Doe’s class on May 7.15 App. 429 (142‐44). Murray evidently did not put this
information in the investigative file or otherwise seek to correct the record. App. 429
15
In her brief, Naca asserts that Doe admitted in her “Answer and Counterclaim”
that she heard Naca announce the grades in class. ECF No. 231 at 14 n.91. This is
evidently a reference to the answer that the Does filed in Naca’s state‐court action
against Doe and her parents. As far as the Court can tell, however, that document is not
in this Court’s record. In any event, Doe told the MCHC that she did not know her
grade before the May 6 meeting at which Naca solicited her. App. 182; App. 716.
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(144); App. 486 (162). As discussed above, however, this corrected date still indicated
that Naca submitted Doe’s final grade after their May 6 meeting.
After completing its investigation, the MCHC issued a report in which it laid out
the results of its investigation and recommended that the matter proceed to a formal
adjudication.16 App. 294 (51); App. 180‐83. Under Macalester’s policies, when formal
proceedings involving accusations of harassment or sexual assault are instituted against
a faculty member, the provost serves as the “relevant authority.” App. 163; App. 174.
Both the complainant and the respondent have the opportunity to submit additional
materials for the provost’s consideration. App. 479 (133‐35). If the provost
recommends a “severe sanction” against the faculty member, the Faculty Personnel
Committee (“FPC”) must conduct a hearing. App. 164; App. 175. The FPC consists of
the president, the provost, and six faculty members elected by the faculty. App. 517 (12‐
13).
After reviewing the MCHC file, Murray determined that the sanction could be
severe and contacted the chair of the FPC to arrange for the committee’s members to
have access to the investigative file. App. 333. Shortly afterward, however, the chair
realized that the FPC’s involvement was premature and instructed that the members’
16
The report is dated June 8, 2015, but other documents in the record indicate that
its contents were still under discussion a day later. See, e.g., ECF No. 226 at 65‐66. Naca
testified that she reviewed it in the latter half of June 2015. App. 63‐64 (202‐03); see ECF
No. 226 at 152‐53.
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access to the investigative file be terminated until the provost issued her formal
recommendation. App. 538‐39 (116‐19); App. 66 (213). There was some discussion
about convening the FPC before the end of June, but that did not happen. App. 301 (87‐
88); App. 532 (86). Murray, who was leaving Macalester effective July 1 to take a
position at another college, agreed to make a formal recommendation before handing
the case off to her successor. ECF No. 226 at 152. As it turned out, however, Murray
did not have time to do so before leaving Macalester, App. 437‐38, although she did
discuss the case with her successor, App. 297 (67‐68).
On June 21, Hoppe emailed Naca to notify her of the next steps in the process
and to make arrangements for her to review the MCHC investigative file. App. 440.
Hoppe also stated that the original letter notifying Naca about Doe’s complaint
mistakenly omitted that Naca was accused of violating Macalester’s sexual‐assault
policy as well as the harassment policy. App. 440. Naca responded that this and other
errors had hindered her ability to convey her side of the story and that she would be
meeting with an attorney. App. 441. Hoppe told Naca that she could submit any
additional information that she thought was necessary to the provost for her
consideration. App. 442. Naca drafted a letter that she submitted to Murray after it was
reviewed by her attorney. App. 64 (204); App. 185‐86.
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As noted, Murray’s last day as provost was June 30. App. 721 ¶ 2. Accordingly,
the new provost, Karine Moe, took over the Naca matter. App. 191. Moe reviewed the
materials submitted to the MCHC as well as additional materials that Naca submitted.
App. 190; see also App. 682 (Moe’s description of her review process). On July 23, 2015,
Moe issued a written case determination finding that Naca had violated Macalester’s
sexual‐assault and harassment policies and recommending termination. App. 190;
App. 197‐98. On July 27, Moe placed Naca on a paid leave of absence pending the final
resolution of the process. App. 188.
In her determination, Moe made several factual findings. Specifically, Moe
found that, by inviting Doe to her home on May 6, Naca “intended to set the stage for a
sexual relationship” and “initiated that relationship by offering to make a pass at the
student.” App. 196. Moe explained that, if Naca had truly intended to clear the air
rather than invite a sexual relationship, she should have conducted the discussion in an
office or public place. App. 196. Moe also credited Doe’s allegation that Naca touched
her on her knee and waist during the May 6 meeting and noted that Naca had
attempted to keep the relationship secret and asked Doe to seek only off‐campus
counseling. App. 196‐97 & n.4; App. 680‐81. Moe noted the parties’ dispute over who
initiated their first sexual encounter, but did not resolve it; instead, she explained that,
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regardless of who initiated the encounter, Naca “created the stage where such contact
could occur . . . .” App. 193.
Moe went on to say that she was “deeply troubled” by Naca’s view that she had
not violated any of Macalester’s policies because Doe was no longer a student at the
time of their first sexual encounter. App. 197; see also App. 235 (Naca’s timeline stating
that she “took care to follow the College’s sexual conduct code” and that Doe “had
graduated before physical contact took place”). Moe stated:
As Provost and Dean of the Faculty, I strongly disagree with
Professor Naca’s views of the limits of her role and
responsibility as mentor and professor, particularly with
respect to a student with whom she worked so closely over
the preceding three years, who so plainly continued to view
Professor Naca as a mentor, and who had graduated only
days earlier and for whom continued professional support,
advice and recommendations were expected as a result of
the strong and close faculty‐student relationship.
App. 197.
Because Moe recommended termination, the matter was submitted to the FPC
for a hearing. App. 678. Naca’s lawyer helped her to prepare for that hearing, and
Naca again had the opportunity to submit additional materials (which she did).
App. 65 (207‐10); App. 265‐66; App. 268‐70; App. 686.
The FPC held a hearing on August 24, 2015. App. 272. At that time, the FPC
consisted of the president of Macalester (Brian Rosenberg) and faculty members Joan
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Ostrove, Chris Wells, Sarah Boyer, Dan Trudeau, Tom Halverson, and Patrick Schmidt.
App. 66 (213); App. 678. While Moe, as provost, was also a member, it appears that her
role was limited to presenting and defending her recommendation. App. 682. Naca
appeared at the hearing and answered questions. App. 678‐81, 85‐86. Naca was
allowed to have two support people present. App. 66 (211). She was also permitted to
have her lawyer at the hearing, but she decided against it, opting instead to submit a
letter from him. App. 66 (211); App. 268‐70.
Following the hearing, the FPC issued a written decision finding that Moe’s
decision was “amply supported by the record” and endorsing the recommended
sanction of termination. App. 272‐73. The FPC noted that, even under Naca’s narrow
view of the student‐professor relationship, the discussion on May 6 violated college
policy, as it occurred before Naca submitted final grades and while Doe was still under
Naca’s supervision as a student worker. App. 272. The FPC went on to say that,
“[b]eyond this, we are in agreement with the [provost’s] determination that the
‘professor/student relationship’ does not end immediately upon graduation.” App. 272‐
73. The FPC specifically criticized Naca for failing to understand “the implications of
the power relationship or of her role in attending to the potential consequences of
power dynamics in such relationships with students.” App. 272‐73.
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After receiving notice of the FPC’s determination, Naca (with the assistance of
counsel) submitted a letter of appeal. App. 66 (213‐14); App. 275‐78. On September 28,
2015, the appeals team—which consisted of Denise Ward and Rebecca Hoye—rejected
Naca’s appeal, bringing the process to a close. App. 66 (213‐14); App. 280‐81; App. 67
(215‐16).
D. Naca’s State Court Lawsuit
After her discharge, Naca sued Jane Doe and her parents in state court, claiming
defamation, tortious interference with contract, and tortious interference with
prospective contractual relationships. App. 15 (10); Nickitas Decl. Ex. 2 at 1. The Doe
family counterclaimed, alleging abuse of process, reprisal under Title IX and the
Minnesota Human Rights Act, and publication of private facts. Id. The parties settled
the lawsuit, expressly agreeing that there was no admission of liability on either side.
Id. As part of the consideration for the settlement agreement, Doe was forced to write a
letter to Naca complimenting Naca’s teaching and stating that she never alleged sexual
assault. Id. at 2‐3. Similarly, Doe’s parents were required to write a letter stating that
they did not intend for Naca to lose her job. Id. at 2.
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II. ANALYSIS
A. Standard of Review
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute over a fact is “material” only if its resolution
might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” Id. at 255.
B. Discrimination
Naca brings claims of discriminatory discharge on the basis of (1) sex under
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; (2) race/ancestry
under 42 U.S.C. § 1981; (3) sex, race/ancestry, and religion under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and (4) sex, race/ancestry, religion, and
sexual orientation under the Minnesota Human Rights Act (“MHRA”), Minn. Stat.
§ 363A.01 et seq.
Naca has no direct evidence of discrimination on any of these bases. See Griffith
v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (“direct evidence is evidence
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showing a specific link between the alleged discriminatory animus and the challenged
decision” (cleaned up)); Floyd‐Gimon v. Univ. of Ark. for Med. Sci. ex rel. Bd. of Trs., 716
F.3d 1141, 1149 (8th Cir. 2013) (“Direct evidence does not include stray remarks in the
workplace, statements by nondecisionmakers, or statements by decisionmakers
unrelated to the decisional process.” (cleaned up)). Accordingly, the Court analyzes
Naca’s discrimination claims under the burden‐shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brine v. Univ. of Iowa, 90 F.3d 271, 276
(8th Cir. 1996) (Title VII standards apply to employment‐discrimination claims under
Title IX); Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012) (McDonnell Douglas
framework governs claims of race discrimination under § 1981); LaPoint v. Family
Orthodontics, P.A., 892 N.W.2d 506, 510‐11 (Minn. 2017) (McDonnell Douglas framework
governs claims under the MHRA).
To establish a prima facie case of discrimination, a plaintiff must show that
(1) she is a member of a protected group; (2) she was qualified for her position; (3) she
suffered an adverse employment action; and (4) the circumstances permit an inference
of discrimination. Banks v. Deere, 829 F.3d 661, 666 (8th Cir. 2016). If the plaintiff
establishes a prima facie case, the burden of production shifts to the employer to
articulate a legitimate, non‐discriminatory reason for its decision. Id. If the employer
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meets this burden, then the plaintiff must prove that the proffered reason is merely a
pretext for discrimination. Id.
The Court does not believe that Naca has established a prima facie case of
discrimination. Nothing about the circumstances of this case gives rise to an inference
of discrimination. In May 2015, when Doe made her complaint, Macalester was
beginning the process of approving Naca for tenure. Up to that point, Naca’s career
was progressing smoothly. What changed after May 2015 was not Doe’s race/ancestry,
sex, sexual orientation, or religion; what changed is that a former student made a formal
complaint of sexual misconduct.
Macalester carefully investigated Doe’s complaint and found that it was
generally true. Naca admitted that she invited Doe to her home shortly before
graduation, that she offered to “make a pass” at Doe, and that, a few days after
graduation, she again invited Doe to her home, where the two commenced a short‐lived
sexual relationship. This was extremely serious misconduct—and there is nothing at all
suspicious about a college terminating a professor for committing such misconduct. As
this Court explained in an earlier order:
Sexual contact between a professor and a student is widely
prohibited because of disparities in their relationship. There
is always a disparity in power and authority, and often
disparities in education, experience, sophistication, or age.
As a result of these disparities, a student cannot give
authentic consent to sex with [a] professor. In continually
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emphasizing that she did not have sex with the student until
three days after the student graduated, Naca ignores that the
student testified (and Macalester found) that Naca solicited
sex from the student while she was still a student. Naca also
ignores that Macalester could reasonably have concluded
that the disparities between a professor and a student do not
entirely disappear the instant that the student is handed her
diploma.
Naca v. Macalester Coll., No. 16‐CV‐3263 (PJS/BRT), 2017 WL 4122601, at *4 (D. Minn.
Sept. 18, 2017). Under these circumstances, the Court cannot find that Naca’s discharge
permits an inference of discrimination.
Even assuming that Naca has made out a prima facie case, however, Macalester
has clearly articulated a legitimate, non‐discriminatory reason for discharging
Naca—namely, Naca’s sexual relationship with Doe. The ultimate question, then, is
whether Naca has offered sufficient evidence from which a factfinder could conclude
that this explanation is a pretext for discrimination.
Naca contends that Macalester did not terminate straight white male Christian
professors who engaged in similar misconduct; that the proceedings were infected by
procedural irregularities and intentional misconduct on Macalester’s part; and that
Macalester’s explanation for its decision has changed over time. See Edwards v. Hiland
Roberts Dairy, Co., 860 F.3d 1121, 1125‐26 (8th Cir. 2017) (“A plaintiff may show pretext,
among other ways, by showing that an employer (1) failed to follow its own policies,
(2) treated similarly‐situated employees in a disparate manner, or (3) shifted its
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explanation of the employment decision.” (cleaned up)). The Court considers each of
these contentions in turn.
1. Comparators
Naca alleges that two Macalester professors—Terry Boychuk and Stanton
Sears—engaged in similar misconduct but were not terminated. Naca’s allegations are
false, however, and neither of these professors is similarly situated to her.
With respect to Boychuk: In the early 2000s, before Boychuk was granted tenure,
a number of students complained to Macalester about him. In 2001, a Macalester
student reported that he was uncomfortable with the way that Boychuk had discussed
the topic of sexual violence in class. App. 726 ¶ 4. In late 2001 or 2002, several students
reported that they had heard rumors that Boychuk had sexually harassed other
students, but were unable to provide the names of any potential victims. App. 727 ¶ 6.
And in 2002, after Macalester announced that Boychuk was up for tenure, five students
(including the students who had earlier reported rumors of harassment) wrote a letter
raising concerns about Boychuk sexually harassing students.17 App. 727 ¶ 7. None of
the authors had personally experienced or witnessed harassment—nor were any of the
17
In Moe’s Fed. R. Civ. P. 30(b)(6) deposition, she made a reference to five
students sending a letter about Boychuk “in early March of 2015 . . . .” App. 611 (103).
From the ensuing testimony, however, it is clear that Moe was talking about events that
occurred in 2002 and simply misspoke. Neither party contends—and the Court is not
aware of anything in the record indicating—that there was a complaint against Boychuk
in 2015.
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authors able to identify any student who had personally experienced or witnessed
harassment—but the authors suggested that the student who had earlier complained
about the classroom discussion might be a victim. App. 728 ¶¶ 8‐9.
Subsequently, another student, Hlee Vang, reported that Boychuk made
inappropriate comments about underwear. App. 728 ¶ 10. Specifically, Vang had
delivered a package to Boychuk’s office and asked him what it was. App. 583 (31‐32).
Boychuk replied that it was underwear, talked about his fabric and color preferences for
underwear, and asked Vang what color underwear she wore. App. 583 (32). Vang was
uncomfortable and left his office. App. 583‐84 (32‐33). Vang also reported that, during
class, Boychuk had mocked some Jamaican and Hmong students who had expressed
fear of paranormal activity. App. 584 (33‐35). Macalester imposed some mild sanctions
on Boychuk and granted him tenure shortly afterward. App. 609‐10 (96‐101).
Boychuk’s case provides no evidence that Naca was the victim of discrimination.
To begin with, none of the people involved in making the decision to grant tenure to
Boychuk were later involved in the decision to terminate Naca. The two decisions were
made by entirely different sets of decisionmakers, and thus any inconsistency in the
decisions would not be evidence that any particular decisionmaker was motivated by
race, sex, or any other protected characteristic. See Muor v. U.S. Bank Nat’l Ass’n, 716
F.3d 1072, 1078 (8th Cir. 2013) (“the employees used for comparison must have dealt
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with the same supervisor, have been subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances” (cleaned up)).
Naca argues that David Deno, a member of Macalester’s board of trustees, was on the
board both when she was terminated and when Boychuk received tenure. But there is
no evidence that Deno had anything to do with Naca’s termination.
Setting that aside, the conduct of which Boychuk was accused was worlds apart
from the conduct to which Naca admitted. The students who complained of sexual
harassment did not have firsthand knowledge of any such harassment and were unable
to identify anyone who did. There is no evidence that anyone ever reported—or that
Macalester ever learned—that Boychuk had offered to make a pass at a student or had
sexual contact with an alumna shortly after graduation.18 The only specific conduct of
which Boychuk was accused—an uncomfortable classroom discussion, comments about
underwear, and mocking students for believing in the paranormal—while not
exemplary, is far less serious than the sexual misconduct in which Naca admittedly
engaged. See Burton v. Ark. Sec. of State, 737 F.3d 1219, 1230‐31 (8th Cir. 2013) (to be
similarly situated, comparators must have engaged in misconduct of comparable
seriousness). Simply put, the decision of one group of decisionmakers to treat Boychuk
18
Vang testified that she had heard that Boychuk had propositioned students and
perhaps had some sexual relationships, but she does not claim that she or anyone else
reported any such conduct to Macalester. App. 581‐82 (23‐27).
-33-
favorably—thirteen years before Naca was terminated by a different group of
decisionmakers after admitting to much more serious misconduct—does nothing to
show that Macalester’s stated basis for Naca’s termination is pretextual.
With respect to Stanton Sears: Sears married a Macalester alumna sometime in
the late 1990s. App. 614 (124‐25). Sears met his future wife in 1992, when she was still a
student. App. 614 (125), App. 616 (131‐32). There is no evidence that Sears solicited sex
from his future wife while she was still a student, and no evidence that Sears and his
future wife began a sexual relationship days after she graduated. According to the only
evidence in the record on this issue, Sears and his future wife began dating at some
unknown time after her graduation and married six or seven years after they first met.
App. 616 (131‐32). Moreover, there is no evidence that Macalester was even aware that
Sears had married a former student, much less that Macalester was informed that Sears
had engaged in sexual misconduct with his future wife while she was a student or
recent alumna. App. 614 (124). Obviously, the fact that Macalester never took action
against Sears is not evidence of pretext.
Naca attempts to solve this problem by recklessly accusing Sears and his future
wife of starting a sexual relationship while she was still a student. Naca’s “evidence”
for this consists of various websites—some of which the Court cannot access—in which
Sears or his wife states that the two have “collaborated” since 1993 and that she
-34-
graduated in 1995. ECF No. 231 at 38 n.121. According to these websites, both Sears
and his wife are sculptors and public artists, and they run an art studio together. Naca
argues that when Sears and his wife tell the world that they have “collaborated” since
1993, they do not mean “collaborated on art,” but instead mean “had sex with each
other.” Naca’s argument is ridiculous.
Again, there is not a shred of evidence that Sears engaged in sexual misconduct
of any kind; not a shred of evidence that Macalester was aware of any sexual
misconduct by Sears; and not a shred of evidence that any of the decisionmakers in
Naca’s case were even employed by Macalester back in 1993. Sears’s case, like
Boychuk’s, provides zero evidence of pretext.
2. Procedural Irregularities
Naca also attempts to show pretext by complaining about various procedural
problems with Macalester’s investigation of Doe’s complaint. She complains, for
example, that she was not initially told that she was accused of sexual assault (in
addition to harassment); that she was not told that Doe’s parents had written a letter
that was made part of the investigative file; that Macalester tried to schedule the FPC
meeting before the provost issued her case determination; and that Macalester falsely
claimed that Naca turned in the grades for her capstone class on May 15 and buried
-35-
evidence that she actually turned them in before the meeting at which she offered to
make a pass at Doe.
This is much ado about nothing. Naca learned that she was accused not only of
sexual harassment but also of sexual assault less than a month after Doe made her
complaint and well before Moe issued her case determination; Naca was then permitted
to supplement the record, which she did with the help of her attorney. The letter from
Doe’s parents simply mirrors the allegations that Doe made against Naca; the letter
does not contain any material information that was not already known to Naca. The
FPC hearing did not, in fact, take place until after Moe issued her case determination.
And Macalester’s failure to disclose evidence that Naca submitted her grades on May 7
is of little significance because, as discussed above, May 7 was still after the date on
which Naca offered to make a pass at Doe. Moreover, as both Moe and the FPC made
clear, ultimately it did not matter to them whether Naca submitted her grades before or
after she made a sexual advance to Doe.19
While Naca focuses on these inconsequential errors, she fails to acknowledge the
big picture: Naca had multiple opportunities to present her side of the story (in writing
19
Although both Moe and the FPC mentioned the timing of Naca’s submission of
grades, both also took pains to emphasize that the prohibition on professors having sex
with students continues to apply for at least some time after graduation (which, of
course, is after submission of grades). Both also criticized Naca for failing to appreciate
that the imbalance in power between a professor and a student does not simply
disappear on graduation day.
-36-
and in person), add evidence to the record, and consult with an attorney. She had her
case go through five layers of review: (1) by Hoppe, (2) by the MCHC, (3) by the
provost, (4) by the FPC, and finally (5) by the appeals team. And at least
14 decisionmakers were involved in one way or another in reviewing Naca’s case,
including Hoppe, Landreman, Higdon‐Topaz, Phadke, Moe, Rosenberg, Ostrove, Wells,
Boyer, Trudeau, Halverson, Schmidt, Ward, and Hoye—and not one of them, as far as
the record discloses, had any bias against Naca. No reasonable juror could conclude
that Macalester was somehow trying to railroad Naca.
More fundamentally, even if a jury could find that Macalester was trying to
manipulate the process to ensure that Naca would be terminated, nothing in the record
would support the further finding that the reason Macalester wanted to terminate Naca
was because of her race, sex, or another protected trait. Again, all evidence in the
record shows that, before Doe made her complaint, Naca was doing well and on track
to gain tenure. Even if Naca could prove that, after receiving Doe’s complaint of sexual
misconduct, Macalester rushed to judgment or treated Naca unfairly, Naca could still
not recover because she could still not prove that the reason that Macalester rushed to
judgment or treated her unfairly was because she was Puerto Rican or female (or a
member of some other protected group).
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Consider, for example, Naca’s complaint about the letter from Doe’s parents.
Naca seems to believe that its inclusion in the investigative file put pressure on
Macalester to terminate her—possibly to avoid a lawsuit by Doe’s parents—and that
Macalester’s failure to disclose the letter is proof of this nefarious intent. What Naca
loses sight of, however, is that even if that is true, it is not evidence of discrimination.
To the contrary, it is evidence that Macalester did not fire Naca because of her race or
sex or another protected characteristic. Cf. Edmund v. MidAmerican Energy Co., 299 F.3d
679, 685‐86 (8th Cir. 2002) (“Employers are free to make employment decisions based
upon mistaken evaluations, personal conflicts between employees, or even unsound
business practices.”). In addition, even if Macalester failed to follow its own
procedures—and even if Naca is correct that her relationship with Doe did not violate
any Macalester policy—that is not enough to show pretext when Naca cannot point to a
single similarly situated comparator who was treated differently. See Smith v. Allen
Health Sys., 302 F.3d 827, 835 (8th Cir. 2002) (“since Smith has pointed to no other
employees who were treated differently under the progressive discipline policy, Allen’s
failure to give written warning does not tend to prove that the reason given for her
firing was pretextual”).
Naca cites a number of Title IX cases for the proposition that procedural
irregularities and the desire to avoid litigation are, in fact, evidence of sex bias. But all
-38-
of these cases involve male plaintiffs who were disciplined after being accused of sexual
misconduct by women.20 See, e.g., Doe v. Columbia Univ., 831 F.3d 46, 49 (2d Cir. 2016);
Yusuf v. Vassar Coll., 35 F.3d 709, 712 (2d Cir. 1994). In determining whether the
plaintiffs’ allegations were sufficient to state a claim, the courts treated allegations of
procedural irregularities and fear of litigation as indicating that the schools were under
general pressure to discipline male students. See Doe, 831 F.3d at 56‐58 (allegations of
procedural irregularities and pressure on school to take female students’ complaints
more seriously were sufficient to allege a pro‐female, anti‐male bias); Yusuf, 35 F.3d
at 715‐16 (allegations of procedural unfairness and a history of always finding accused
males guilty was sufficient to state a Title IX claim).
In other words, the logic of these cases is that evidence that a school had a motive
to uphold accusations made by females against males is evidence that the school is biased
against men. Whatever the logic of that reasoning, it has nothing to do with this case,
which involves a female making an accusation against another female. Under the
circumstances, evidence that Macalester showed favoritism to one or the other would
20
Naca cites one case involving alleged male‐on‐male sexual misconduct. See Doe
v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016). Brandeis did not, however,
involve Title IX or other discrimination claims. See id. at 593 n.19. Instead, it involved
only claims under Massachusetts state law, which, among other things, imposes a
contractual “fairness” requirement on university disciplinary proceedings against a
student. Id. at 594. As discussed below, Naca cites no authority for the existence of
such a duty in the employment context.
-39-
not be evidence of bias for or against women. Cf. Yusuf, 35 F.3d at 716 (male plaintiff
could not state a selective‐enforcement claim under Title IX in part because his
comparator was also male).
Moreover, as these cases make clear, procedural infirmities alone are insufficient;
there must be some evidence of sex‐based bias. Yusuf, 35 F.3d at 715 (“allegations of a
procedurally or otherwise flawed proceeding that has led to an adverse and erroneous
outcome combined with a conclusory allegation of gender discrimination is not
sufficient to survive a motion to dismiss”). Finally, these cases involved allegations of
significant procedural irregularities that, if true, would cast considerable doubt on the
accuracy of the school’s factual conclusions. Here, by contrast, the procedural
violations are trifling and do not in any way cast doubt on the central facts—that Naca
offered to make a pass at Doe shortly before she graduated, and then had sex with Doe
shortly after she graduated. Those facts have never been in doubt.
To the extent that Naca may be seeking to expand this reasoning from Title IX to
her other discrimination claims, her attempt fails because she has no evidence that any
of the decisionmakers harbored racial, religious, or any other bias. True, Naca contends
that Murray threatened her employment after Naca disclosed that she would be
undergoing training to become a Santeria priestess. The Court does not view the record
as reasonably supporting an inference of religious bias on Murray’s part, however. Any
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responsible provost would likely express concern to an untenured faculty member who,
shortly after complaining that she was suffering from “debilitating fatigue” and shortly
before going up for tenure, announced that she had decided to train to become a
Santeria priestess and that, as a result of that training, her “life, or roles, in public will be
significantly diminished or limited.” App. 128.
Even if the record would support such an inference, Murray ultimately did not
play a substantive role in making the decision to terminate Naca. Instead, Murray’s role
was limited to certain procedural matters, such as opining that the matter warranted the
involvement of the FPC. The formal recommendation to terminate Naca was made by
Moe in a written decision that reflects that Moe reviewed the record and came to her
own conclusions. Moe’s recommendation was then adopted by the FPC and upheld by
the appeals team. There is no evidence that Moe, any member of the FPC, or any
member of the appeals team harbored religious bias (or any other kind of bias).21
3. Shifting Explanations
Finally, Naca contends that Macalester has offered shifting explanations for her
termination, pointing to the belated sexual‐assault charge as an example. This
contention is meritless. Macalester has consistently cited Naca’s sexual misconduct
with Doe as the reason for Naca’s termination; Macalester has never claimed that Naca
21
Although Naca does not have a claim for discriminatory discharge on the basis
of disability, the Court notes that, for the same reason, any such claim would fail.
-41-
was fired for any other reason. The fact that Macalester first labeled Naca’s alleged
conduct as sexual harassment—and then labeled the same conduct as sexual
assault—does not establish pretext. Every decisionmaker has been clear and consistent
that Naca should be terminated for the misconduct in which she engaged with Doe,
irrespective of what label is attached to that misconduct. See Wierman v. Casey’s Gen.
Stores, 638 F.3d 984, 995 (8th Cir. 2011) (“pointing out additional aspects of the same
behavior is not probative of pretext”).
Because there is no evidence from which a reasonable jury could conclude that
Macalester’s legitimate, non‐discriminatory reason for firing Naca is pretextual, the
Court grants Macalester’s motion for summary judgment on her discrimination claims.
C. Failure to Accommodate
Naca also brings a claim of failure to accommodate under § 504 of the
Rehabilitation Act, 29 U.S.C. § 794. To establish a prima facie case under § 504, Naca
must establish that (1) she was disabled; (2) she was qualified to perform the essential
functions of her job with or without reasonable accommodation; and (3) she suffered an
adverse employment action due to her disability. Dick v. Dickinson State Univ., 826 F.3d
1054, 1060 (8th Cir. 2016). Failing to reasonably accommodate an employee’s disability
qualifies as an adverse employment action due to disability. Id. at 159‐60. But an
-42-
employer is not required to provide the specific accommodation requested or preferred
by the employee. Scruggs v. Pulaski Cty., 817 F.3d 1087, 1093 (8th Cir. 2016).
Naca’s § 504 claim fails because no reasonable jury could find that Macalester
failed to reasonably accommodate her disability. There is no dispute that Macalester
provided a number of accommodations to Naca—including student assistance, a lighter
laptop, and classes scheduled in only one building. And there is no dispute that, with
these accommodations, Naca was able to perform the essential functions of her job.
Indeed, Naca herself has said that she performed the essential functions of her job, ECF
No. 231 at 25, and she testified at her deposition that she was able to teach, research,
engage in scholarship, and serve on committees, App. 82‐83 (277‐79). In light of this
evidence, Naca’s accommodation claim fails as a matter of law. See Burchett v. Target
Corp., 340 F.3d 510, 518 (8th Cir. 2003) (affirming summary judgment where plaintiff
admitted that she could perform the functions of her position with the accommodations
provided).
Naca contends that Macalester did not go far enough because it did not grant all
of her requested accommodations for medical leave and student assistance. As noted,
Naca has an expansive definition of “medical leave,” and thus it is difficult to determine
from the record what she meant on any occasion on which she requested medical leave.
But even if Naca requested an entire semester of fulltime medical leave from someone
-43-
empowered to grant it to her, she never provided Macalester with any medical
documentation to support such a request. Not once did any doctor or other healthcare
professional tell Macalester that Naca needed fulltime medical leave. Instead, the forms
that Naca submitted from her doctor consistently requested office assistance and
intermittent time off. See Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 482 (5th
Cir. 2016) (employers may require medical documentation to support the need for
accommodation); App. 339 (Macalester policy requiring medical certification for
medical leave of three or more days).
Similarly, the fact that Macalester did not formally arrange for Naca to have
intermittent time off does not mean that Macalester failed to accommodate Naca’s
disability. The record demonstrates that Naca’s schedule was sufficiently flexible that
there was no need for Macalester to make formal arrangements; indeed, since the
intermittent time off was to be on an as‐needed basis, it is unclear how Macalester could
have made formal arrangements in advance (since it could not know in advance when
Naca would need intermittent leave). Moreover, there is no evidence that Naca ever
requested a particular morning, afternoon, or entire day off, much less that Macalester
denied such a request.
With respect to the amount of office assistance: Again, Naca has not
shown—and does not even contend—that she was unable to do her job with the amount
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of office assistance that she was provided.22 Naca has also not pointed to any medical
evidence that the failure to provide her desired accommodations had a detrimental
effect on her health. Naca’s entire claim seems to rest on the mistaken premise that,
because she was disabled, she had the right to the precise accommodations that she
requested. That is plainly not the law.
Naca also contends that she was eligible for leave under the FMLA and that
Macalester concealed this from her. Even assuming that such conduct would be
actionable under the Rehabilitation Act, no reasonable jury could find that Naca was
eligible to take FMLA leave. See Lovland v. Emp’rs Mut. Cas. Co., 674 F.3d 806, 811 (8th
Cir. 2012) (a claim of interference under FMLA requires employee to prove that the
employer denied a benefit to which she was entitled under the FMLA).
An employee is entitled to FMLA leave if she has a serious health condition “that
makes the employee unable to perform the functions of the position of such employee.”
29 U.S.C. § 2612(a)(1)(D). As already discussed, the record is clear—and Naca herself
concedes—that she was able to perform the functions of her position. Moreover, Naca
never provided Macalester with any medical evidence that she was in need of fulltime
22
As noted earlier, Naca cites no evidence to support her claim that she had to
pay for her own research assistance.
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leave.23 See 29 U.S.C. § 2613(a) (employers may require medical certification for FMLA
leave); App. 339 (Macalester policy requiring medical certification).
Naca points to the fact that Graf wrote “FMLA designation—yes” in a note to
himself after his telephone call with Naca’s doctor. But Graf explained that his note
merely meant that if Naca ever required a medical leave, that leave should be
designated as FMLA leave. Crucially, the telephone call to which Graf’s note related
occurred after Naca’s doctor submitted a form that identified the accommodations that
Naca would need, and that form did not identify fulltime leave as one of them. There is
no evidence that any doctor or any other medical provider ever told Graf or anyone else
at Macalester that Naca needed fulltime leave. Under these circumstances, no
reasonable jury could find that Graf concluded that Naca was entitled to take FMLA
leave but decided to conceal this fact from her.24
It is true that Naca’s request for a reduced class schedule for the fall of 2014 was
not granted. The record does not indicate why that happened, but assuming that
23
To the extent that Naca’s FMLA argument relates to her requests for
intermittent leave, the Court again observes that Naca had an extremely flexible
schedule and that there is no evidence that she asked for any particular morning,
afternoon, or day off, much less that such a request was denied.
24
Likewise, given that Naca’s doctor never submitted a request for fulltime leave,
the fact that Murray testified that she knew that Naca was “eligible” for FMLA leave, see
App. 316 (151), cannot be construed as an admission that Murray knew that Naca
needed—and, as a result, was entitled to—fulltime leave under the FMLA.
-46-
Naca’s request was denied (rather than withdrawn), again, Naca cannot show that she
needed a course reduction to perform her job. Nor did she supply any medical
documentation to support her request for a course reduction; to the contrary, Naca’s
doctor informed Macalester during the fall 2014 semester that Naca’s prognosis was
excellent, that she expected “near complete recovery” by November 2015, and that until
then Naca “may continue to need an administrative assistant and occasional time off in
the afternoon to rest and recover.” App. 144. The doctor said nothing about Naca
needing—or being harmed by the lack of—a course reduction.
Naca also claims that Macalester failed to grant her request for a course
reduction for the fall 2015 semester and denied her request for a research assistant in
May 2015. But Naca’s own testimony indicates that her request for a fall 2015 course
reduction would have been approved had she not been fired. App. 61 (192). And as for
her request for a research assistant, the fact that she was not allowed to use work‐study
funds to employ the particular assistant whom she wanted (because that assistant had
graduated and therefore was no longer eligible for work study) does not establish a
violation of the Rehabilitation Act. In any event, any need for these accommodations
became moot when Naca was put on leave and then terminated shortly after making
these requests.
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Finally, Naca claims that there is a genuine dispute as to whether Macalester
engaged in the interactive process in good faith to determine if she could be reasonably
accommodated.
To establish that an employer failed to participate in an
interactive process, a disabled employee must show: (1) the
employer knew about the employee’s disability; (2) the
employee requested accommodation or assistance for his or
her disability; (3) the employer did not make a good faith
effort to assist the employee in seeking accommodation; and
(4) the employee could have been reasonably accommodated
but for the employer’s lack of good faith.
Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1021 (8th Cir. 2000). There is no per se
liability for failing to engage in the interactive process; instead, such failure may be
relevant to show that there is a factual question as to whether the employee could be
reasonably accommodated. Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 (8th Cir.
1999).
No reasonable jury could find that Macalester failed to engage in the interactive
process. The record is replete with evidence of back‐and‐forth communications
between Naca and Macalester regarding her various needs for accommodation. Graf
himself granted the accommodations that Naca’s doctor requested. After Naca
complained about Graf, Murray agreed that Naca could talk to Murray instead of Graf.
And Macalester provided accommodations that were generally in line with what Naca’s
doctor requested.
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Even if a jury could find that Macalester failed to engage in the interactive
process, Naca could not avoid summary judgment. Under Cravens, Naca must show
that, but for Macalester’s bad faith, she could have been reasonably accommodated. As
discussed above, however, Naca was reasonably accommodated, and thus she cannot
make this showing. See Kallail v. Alliant Energy Corp. Servs., 691 F.3d 925, 933 (8th Cir.
2012) (plaintiff’s interactive‐process argument failed because the employer offered her a
reasonable accommodation).
For these reasons, Macalester’s motion for summary judgment on Naca’s
Rehabilitation Act claim is granted.
D. Breach of Contract
Finally, Naca alleges that, by failing to promptly notify her of the sexual‐assault
charge, Macalester deprived her of important procedural rights to which a faculty
member accused of sexual harassment is not entitled, but to which a faculty member
accused of sexual assault is entitled—namely, the right to remain silent and the right to
be represented by an attorney.
Under Minnesota law, an employee handbook may create an enforceable
contract. Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn. 1983). But
“[l]anguage in the handbook itself may reserve discretion to the employer in certain
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matters . . . .” Id. That is what the sexual‐assault policy did in this case. It stated, in
relevant part:
The procedures described in this policy are intended as
guidelines describing how harassment complaints will
typically be handled. The College reserves the right to vary
from these procedures based upon its evaluation of the
circumstances of each matter.
App. 176. Because this language prevented the formation of a contract, Naca’s breach‐
of‐contract claim must be dismissed. See Simonson v. Meader Distrib. Co., 413 N.W.2d
146, 147‐48 (Minn. Ct. App. 1987) (affirming summary judgment where employer
“expressly reserved the discretion to deviate from the policy provisions in its manual”).
Even if the sexual‐assault policy created a contract, however, Naca has failed to
show any breach. There is no dispute that, at their initial meeting, Hoppe informed
Naca that she was charged with harassment and gave her a copy of the harassment
policy (as well as a copy of the sexual‐assault policy). App. 62 (196, 197‐98); App. 153‐
176 (Naca Dep. Ex. 29); App. 178. The harassment policy, like the sexual‐assault policy,
gives the respondent the right to remain silent. App. 163 (harassment policy); App. 173
(sexual‐assault policy). Because Naca already had the right to remain silent by virtue of
the harassment charge, Macalester did not breach any such right by failing to
immediately inform her of the sexual‐assault charge.
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Both policies also grant respondents the right to an advisor. App. 163
(harassment policy); App. 173 (sexual‐assault policy). It is true that the policies differ
slightly in that the sexual‐assault policy grants respondents the right to “an advisor of
their choice,” whereas the harassment policy restricts those who can serve as an advisor
to members the faculty, staff, or student body. Naca contends that this difference
means that, under the sexual‐assault policy (but not the harassment policy), she was
entitled to an attorney. The sexual‐assault policy is ambiguous on this point, however,
and the evidence in the record suggests that Macalester historically has permitted only
faculty, staff, and students to act as advisors under either policy. App. 376 (94‐95);
App. 400 (202‐03); App. 465 (77‐78).
Finally, even if Naca could show that a contract existed (which she can’t), and
that the contract was breached (which she also can’t), she could not show that she was
damaged by that breach. Naca hired an attorney in June 2015, after the MCHC issued
its report but before Moe issued her case determination. App. 64 (204‐05). Her attorney
assisted her with her submissions to Moe, to the FPC, and to the appeals team, and
Naca was given permission to bring her attorney to the FPC hearing (although, on his
advice, she declined to do so). The only possible breach, then, is the fact that Naca did
not have a lawyer to assist her during the MCHC’s preliminary investigation.
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There is no evidence that Naca was damaged by the fact that she was not assisted
by a lawyer until after the MCHC referred her case to the provost. She was repeatedly
allowed to supplement the record with the assistance of her lawyer, and she has never
explained how having an attorney during the MCHC’s inquiry would have changed
anything. Jensen v. Duluth Area YMCA, 688 N.W.2d 574, 578‐79 (Minn. 2004) (“A breach
of contract claim fails as a matter of law if the plaintiff cannot establish that he or she
has been damaged by the alleged breach.”); Mandel v. Multiband Corp., No. A15‐1133,
2016 WL 1175073, at *5 (Minn. Ct. App. Mar. 28, 2016) (affirming summary judgment on
contract claim for failure to conduct a lengthier investigation before discharging
employee because there was no evidence that the outcome would have been different).
Naca also claims that she had a contractual right not to be terminated arbitrarily
or capriciously. But Naca does not cite any term of any contract providing such a right,
nor does she cite any case supporting the proposition that Minnesota implies such a
right in employment contracts.25 Cf. Mandel, 2016 WL 1175073, at *7‐8 (declining to read
an implied covenant of good faith and fair dealing into a written employment
agreement). Instead, she relies on various inapposite cases, including cases imposing a
25
Aside from having no basis in Minnesota law, this claim differs from the sole
contract claim that the Court gave Naca permission to pursue. See ECF No. 64 (denying
Macalester’s motion to dismiss Naca’s breach‐of‐contract claim insofar as it is “based on
the claim that Naca was deprived of certain contractual rights provided to a faculty
member accused of sexual assault but not to a faculty member accused of sexual
harassment”).
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duty on schools not to expel students arbitrarily, see Abbariao v. Hamline University
School of Law, 258 N.W.2d 108, 113 (Minn. 1977), and cases arising under the Due
Process Clause, see Potemra v. Ping, 462 F. Supp. 328, 331 (S.D. Ohio 1978).
These cases are irrelevant here, as Naca is bringing a breach‐of‐contract claim,
not a due‐process claim or the tort‐type claim recognized in Abbariao. Cf. Abbariao, 258
N.W.2d at 113‐14 (allowing claim based on duty not to act arbitrarily to proceed, but
affirming dismissal of contract claim). Moreover, Naca has not cited any
authority—and the Court has found none—applying the duty recognized in Abbariao to
employers. Finally, even if Macalester had such a duty (it didn’t)—and even if such a
claim were properly before the Court (it isn’t)—no reasonable jury could find that
Macalester acted arbitrarily or capriciously in firing Naca.
For these reasons, Macalester’s motion for summary judgment on Naca’s breach‐
of‐contract claim is granted.
E. Motion to Supplement the Record
After briefing on Macalester’s summary‐judgment motion was complete—and
more than a month after Naca’s (extended) deadline for submitting her brief and
supporting materials had passed, see D. Minn. LR 7.1(c)(2), ECF No. 184—Naca filed a
motion to supplement the record with Macalester‐related materials that she found on
the Internet. ECF No. 238. Naca offers no plausible reason why she did not obtain and
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submit these materials in a timely manner; all of the materials are addressed to issues
that the parties have been contesting from the beginning of this case.26
Naca’s attorney has a long history of violating the Local Rules of this District, in
this case and in others. See, e.g., ECF No. 108, ECF No. 110 at 4‐5, ECF No. 159 at 1‐2,
ECF No. 182, ECF No. 230. His brief in support of Naca’s motion to supplement
appears to be a thinly veiled attempt to file an unauthorized surreply. See D. Minn.
LR 7.1(i). Notably, Naca’s brief in opposition to Macalester’s motion for summary
judgment is only one word short of this District’s word limit. ECF No. 231‐1, D.
Minn. LR 7.1(f). As there is no reason why Naca could not have submitted these
materials in a timely manner—and as this appears to be yet another attempt by Naca’s
counsel to circumvent the District’s Local Rules—Naca’s motion to supplement the
record is denied.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion to supplement the record [ECF No. 238] is DENIED.
2.
Defendant’s motion for summary judgment [ECF No. 175] is GRANTED.
26
Naca contends that Macalester violated its discovery obligations by not
producing these materials. The deadline for filing discovery‐related motions has
passed, however. Moreover, Naca does not explain why she could not have obtained
these materials earlier, as they were apparently readily available on the Internet.
-54-
3.
Plaintiff’s remaining claims are DISMISSED WITH PREJUDICE AND ON
THE MERITS.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 20, 2018
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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