West Virginia Record

Sunday, July 21, 2019

Judge backs out of WVU Bresch case

By Steve Korris | Mar 11, 2011


CLARKSBURG -- U.S. District Judge John Bailey has bailed out of a lawsuit over a degree West Virginia University awarded to Heather Bresch, daughter of former Gov. and current U.S. Senator Joe Manchin.

On March 7, Bailey transferred to District Judge Frederick Stamp a suit that WVU professor Cyril Logar and former WVU professor Stephen Sears filed against the university.

Bailey, chief judge of the state's Northern District, wrote that he transferred the suit "for reasons appearing to the Court."

He had sent a confidential letter to lawyers on Feb. 9, disclosing on his docket that he sent it and relating it to "case assignment."

Sears and Logar sued the Board of Governors, president James Clements, former president Mike Garrison, interim president Peter Magrath, former provost Jane Martin, professor Marjorie McDiarmid and university lawyers Mary Brandt and Beverly Kerr in December.

Sears and Logar claimed the university violated their due process rights in an investigation that resulted in charges of academic misconduct against them.

They accused defendants of sabotaging their reputations, depriving them of benefits and privileges, and failing to adhere to university procedures for investigating misconduct.

Though they sued jointly, different pairs of lawyers represent them.

Robert Ridge and Daniel Tomassetti of Pittsburgh represent Logar, of Masontown, a tenured faculty member and former associate dean of the College of Business and Economics.

They claim damage to Logar's reputation "rendered him an outcast in the WVU community," and cost him consulting opportunities that could have produced significant income.

John Tinney Jr., of Charleston, and Thomas Clare of Washington represent Sears, of Laredo, Texas, former dean of the business school.

They claim Sears withdrew from consideration for dean at Marquette University when the story broke, and that allegations against him prevented him from finding employment.

The complaint, identifying Bresch as Student A, alleged that provost Gerald Lang asked Sears, Logar and others to investigate whether she earned her degree.

"Lang had already reviewed Student A's grade records at WVU and discovered several discrepancies regarding course completion," the four lawyers wrote.

Sears and Logar concluded she hadn't completed necessary course work, they wrote.

They wrote that at a meeting, Sears, Logar, and others learned that director Paul Speaker of the master's in business program told her she earned the degree.

They wrote that general counsel Alex Macia said she earned it.

"Based on Macia's conclusion and his accompanying legal advice, it was determined to acknowledge Student A's belief that she had, in fact, earned her degree," they wrote.

They wrote that on May 30, 2008, Garrison asked academic integrity officer McDiarmid to investigate potential misconduct by Sears or others.

They wrote that on June 6, 2008, Garrison resigned effective Aug. 31, 2008.

They wrote that McDiarmid selected a screening committee, received its report, and selected a discovery committee.

They wrote that the discovery committee found Sears didn't change grades but "would have known the steps that were being taken."

They wrote that the committee found insufficient evidence to include Macia in the investigation.

They wrote that in December 2008, McDiarmid informed Sears, Logar, Lang and others that they were being charged with academic misconduct.

They wrote that in 2009, Lang petitioned in Monongalia Circuit Court to prohibit a hearing on the charges and prevent continued violation of his due process rights.

They wrote that Logar and Sears moved to intervene, and defendants moved to dismiss.

They wrote that Judge Susan Tucker denied both motions and granted a writ of prohibition.

They quoted from her order that, "the Court is of the opinion that the rights of all the accused of have been violated."

They wrote that she ordered the university to start new proceedings without conflicts of interest.

They wrote that defendants moved to amend the order and Tucker hadn't acted on the motion.

She acted after Sears and Logar sued in federal court, entering an order confirming her earlier order.

On Jan. 31, the Board of Governors moved to dismiss themselves, Magrath and Clements.

"Dean Sears cannot refute the fact he announced his intention to resign as dean of the College of Business and Economics in April 2008, one month prior to the formation of the academic integrity process," wrote Seth Hayes of Morgantown.

He wrote that a two-year statute of limitations had run out on the claims.

He wrote that the complaint was silent on any state law or employment contract entitling Sears and Logar to continued employment as dean or associate dean.

"Plaintiffs do not allege WVU took any specific adverse employment action against them in conjunction with the findings of the screening and discovery committees," he wrote. "Plaintiffs have yet to appear before a hearing panel and receive a final determination by the deciding official.

"Even if the alleged conflict has damaged plaintiffs' reputations, the hearing panel's ultimate finding may be that of no academic misconduct."

He wrote that neither Magrath nor Clements was president when the investigation occurred.

Scott Curnutte of Elkins moved to dismiss McDiarmind on the same date, writing that she didn't cause Sears and Logar any damage.

"With respect to the damage they allege from publicity, the plaintiffs do not allege -- because they cannot allege -- that Professor McDiarmid is responsible for, involved in, or in any way related to, the publicity," Curnutte wrote.

Robert Fitzsimmons of Wheeling moved to dismiss Garrison on Feb. 21, invoking the state's sovereign immunity and asserting failure to state a claim on which to grant relief.

"There is only one allegation against Garrison, i. e., that he asked the academic integrity committee to investigate potential misconduct," Fitzsimmons wrote. "Garrison was obligated as an employee of WVU to request such an investigation."

Debra Scudiere of Morgantown moved to dismiss Brandt and Kerr on Feb. 22, writing that the university transferred Brandt to social justice and Kerr to human resources.

Scudiere wrote that Lang cut short the integrity proceedings, and that allegations of inadequate procedures were premature because the process didn't run its course.

"People cannot be punished for what they might have done, only for what they did," she wrote.

She wrote that Brandt and Kerr were "stopped in their tracks from doing their job" by Tucker.

She wrote that Tucker's orders were under petition by Brandt and Kerr with the Supreme Court of Appeals.

She wrote that if Sears and Logar desire action, they can't obtain it from Brandt and Kerr.

She wrote that if they desire monetary damages, naming Brandt and Kerr allows them no more access to that than if they had named the university only.

She wrote that "if the plaintiffs desire revenge and publicity, then perhaps they need the defendants Mary Robert Brandt and Beverly D. Kerr to remain as party defendants in this lawsuit."

Lawyers for Sears and Logar, opposing all motions to dismiss on March 7, declared it incredible that Brandt and Kerr would call allegations of inadequate procedures premature.

They wrote that in 2009, Tucker gave Brandt, Kerr, and the rest of the university an opportunity to start the process again without conflicts of interest.

"Almost two years have passed and not a single defendant has attempted or even offered to initiate alternative proceedings, as directed by the circuit court," they wrote.

They wrote that McDiarmid doggedly pursued a case against Sears and Logar while avoiding Garrison and Macia.

They wrote that she should restore their reputations or recuse herself from the process.

They wrote that Garrison's office participated in initial meetings and Garrison was aware that the office of general counsel rendered advice to Sears and Logar in the meetings.

They wrote that his actions contributed directly to the conflicted investigation.

They wrote that the Board of Governors continues to violate their rights by doing nothing to restore their reputations or undo the damage to their liberty and property interests.

"Defendants attempt to allege that these property interests were not deprived by them because they were voluntarily undertaken by plaintiffs," they wrote. "However, both 'resignations' were procured by WVU administration."

They wrote that they filed the complaint less than two years after the filing of formal charges.

No attorney has appeared on behalf of Martin, and she has not responded to the complaint.

Upon taking the case, Stamp set an April 21 deadline for initial discovery.

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