Jennifer Dibbern was a graduate student in Materials Science Engineering, from 2007 until 20011. She became a leader in the efforts of graduate student research assistants (GSRA) to join the Graduate Employees Organization (GEO) a collective bargaining unit (union) for graduate student instructors (GSI) and graduate student staff assistants (GSSA). They were fighting a 1981 ruling by the Michigan Employment Relations Commission that said that, while GSIs and GSSAs were university employees who could unionize, GSRAs were students and not eligible for unionization. The UM Board of Regents voted to support unionization of the GSRAs but the administration was strongly opposed to unionization.
According to her complaint Dibbern became involved in the efforts to unionize because she had been[1];
“a survivor of the sexual harassment and a hostile environment that festered in that department [Engineering], and a victim of retaliation by University officials for daring to speak up and advocate for better educational conditions.”
Ms. Dibbern describes a discussion that took place the first day of classes at UM;
“On Ms. Dibbern’s first day as a Ph.D. student within the Materials Science and Engineering program she attended her first class and [was] invited to lunch [with] some classmates with whom she’d be working, so to get to know them better. Immediately after introducing herself at the lunch table, Ms. Dibbern was subjected to comments indicative of the gender-based harassment and hostile environment she would live day in and day out as she worked towards completion of her Ph.D.…”
“Girls in Engineering aren’t real girls”
“Ms. Dibbern was told by her student colleagues: “real women aren’t engineers,” “engineering women are different—they’re not normal . . . they aren’t like real girls. Not normal at all. Even if they are around, no one considers them women,”…
One student challenged Ms. Dibbern’s place within the Ph.D. program and whether she deserved to have been admitted to MIT. The student stated during lunch: “You had it easy because you’re a woman in science. You have to admit it. You’re less qualified but still able to get in just because you’re a girl. No, you have to admit it—people make things easier even for MIT—I mean, [Male Student] deserved to go to MIT, as a white male he has nothing helping him and he has to be even more qualified—he’s got nothing helping him get in. You add diversity to the class. Plus, guys would want to help you study, cut you breaks. Don’t get me wrong—I don’t mind as a guy in science, more variety . . . hot girls to study with who’d need me to help them pass, in exchange, you know, as long as they look cute.”
A second student stated: “Let’s be honest, the girls in engineering aren’t real girls—no guy would look at them that way so we need more real girls to study with, date—something to look at in class. Real girls. There’s something wrong with the engineering girls.”
“Parts on the inside”
“After that day, the men she met at lunch, and other male Ph.D. program students, regularly taunted Ms. Dibbern at group study sessions, ridiculed her when she produced correct answers to problem sets, and spoke over her when she tried to speak. At the study group, the Student Harassers assigned Ms. Dibbern the name “parts on the inside.” When Ms. Dibbern spoke up in the study group, a student stated: “I can’t hear you—what? All I hear is ‘my parts are on the inside, my parts are on the inside, my parts are on the inside.” “Parts on the inside” became a running joke and was used by all of the Student Harassers repeatedly, and especially during group study sessions in order to ignore or negate anything Ms. Dibbern said to the group.
Ms. Dibbern attended MSE core classes and Engineering Department events with the Student Harassers as a part of her program. The Student Harassers regularly told Ms. Dibbern that they masturbated with her in mind and would plan to call her at climax. When Ms. Dibbern left classes in which she was enrolled with these students, one or more of the students would intentionally catch her attention, fashion his hand in the shape of a telephone next to his ear, and state, “Call you later, Jenn.”
“Boys can be like that”
“After Ms. Dibbern reported the harassment to her engineering department advisor, the University took no action and the harassment escalated to sexual assault. Ms. Dibbern reported the sexual and gender-based harassment by other students to her Department Advisor, Prof. Tresa Pollock, as early as November 2007 but her reports were dismissed. Prof. Pollock responded that boys can be “like that” and told Ms. Dibbern to stay focused on work.”
Go on a date with me and I’ll protect you
“The Student Harassers continued to taunt and harass Ms. Dibbern into the Winter
2008 semester. Additionally, after Ms. Dibbern refused to make herself sexually available to one student, the student, who had not previously done so, encouraged and incited harassment. Only if Ms. Dibbern agreed to go on a date with the student, would he temporarily cease his own participation and encouragement of other students’ harassment of Ms. Dibbern and offer Ms. Dibbern some protection.”
Ms. Dibbern begins to document comments in her journal
“Ms. Dibbern documented in her personal journal harassing comments which occurred prior to February 24, 2008. These comments included:
(1) “I’ll bet you’ve been f***ed so much. You’re so dirty. A little late for you to worry about that isn’t it? You’ll never be clean, you slut”;
(2) “That was a really dumb thing to say, just so you know. Really dumb. But then what do you say that isn’t?”;
(3) “You are a walking cliché. Everything you do is because you are a woman. Just learn and admit it.”;
(4) “Be a good girl and get me a drink. Now.”;
(5) “Well, that’s because your parts are on the inside.”;
(6) “You know that comic? The XKCD one where it says, ‘Girls suck at math’? Funny how true that is, right? How’d you get in here again?”;
(7) “Well, we do always talk over you but that is because you’d never have anything important to say--your parts are on the inside.”;
(8) “You talk and all I hear is blah, blah, blah my parts are on the inside, my parts are on the inside, my parts are on the inside.”;
(9) “You know you were let into MIT
because you’re a woman. I applied several times and got rejected because less qualified—come on, be honest--less qualified women like you were let in to meet their quota.”;
(10) “Real women aren’t engineers.”;
(11) “Engineering women are different—they’re not normal. They aren’t like real girls. Not normal at all. Even if they are around, no one considers them women.”;
(12) “We need more cute girls in engineering to study with and more options for dates. It’d be great because if we let them in—you know real girls who were honestly, probably not smart enough to hack it—it wouldn’t matter if they couldn’t cut it. If we let them in and helped them study, skim by in classes, maybe there would be girls in engineering who were pretty.”;
(13) “That hat is stupid. Why would you wear something that stupid? Do you think it is fashionable because your parts are on the inside? But you’re not a real woman. You just look dumb.”;
(14) “Well, now that you don’t have a boyfriend, who is going to keep you in line? If you don’t have a boyfriend, someone has to take over responsibility for you.”;
(15) “Do you want to come over and clean my house? I don’t care. Do it anyway.”;
(16) “Suck up . . . “Or did you just suck to get a better grade.”
Additionally, her harassers sent emails to the study group and directly to Ms. Dibbern which questioned women’s place in the sciences or circulated articles suggesting that women are behind in earning degrees in the physical sciences. Other emails included comments suggesting sexual or violent behavior toward Ms. Dibbern. For example, in an email on March 28, 2008, from one student about a carpool to the party discussed infra, the student wrote that after picking up some students at one apartment building, the carpool could next “swing by and grab Jen. Er, grab in a nice way though.”
Physical violence and threats of rape
“The continued sexual and gender-based harassment and threatening conduct escalated to violence when, in late March 2008, Ms. Dibbern accompanied a group of students to a tea shop. While standing inside the tea shop, one of the students insisted that Ms. Dibbern give him her drink when she received her order before him. When Ms. Dibbern refused, the student slapped Ms. Dibbern’s face. When she still refused, the student slapped Ms. Dibbern again. No other students stopped the student or interjected.
In April 2008, the same student who slapped Ms. Dibbern threatened to rape her. On the night prior to a final exam, Ms. Dibbern was studying in the Materials Science and Engineering lounge in the Herbert H. Dow building. Two other students were also present in the lounge studying for final exams. Ms. Dibbern sat near the back of the room, furthest from the lounge door. The threats went to the level of describing in detail how the rape could occur, and students discussed which one would go first. The students also reminded her that they knew where she lived and where her lab was, and suggested that she would “pretend she didn’t like it.”
Immediately after the incident, Ms. Dibbern also called her parents who immediately called the Sexual Assault Prevention and Awareness (“SAPAC”) crisis line.
Ms. Dibbern Reported the Attempted Rape to University Counseling and Psychological Services (“CAPS”) and to Her Engineering Department Advisor.
Ms. Dibbern met the next day with a counselor at the University Counseling and Psychological Services (“CAPS”). The counselor advised Ms. Dibbern to move to a new apartment so the Student Harassers would no longer know where she lived. CAPS also provided Ms. Dibbern a letter that allowed her to move the date of her two exams in the courses taught by Professor Amit Ghosh and by Professor Max Stein. Before moving the dates of her exams, Ms. Dibbern was earning the grade of “A” in both courses. CAPS also advised Ms. Dibbern to take a brief leave of absence and to return to her parents’ home in Iowa, which she did.”
“These things sometimes happen”
“Once back from leave, Ms. Dibbern, in explaining why she took time off, reported the conduct she experienced to her advisor, Prof. Pollock. Ms. Dibbern explained that the men had threatened to physically harm her and to take advantage of her against her will. In mid-explanation, Prof. Pollock interrupted Ms. Dibbern to say: “These things sometimes happen. We have to get over it and get back to lab. Don’t let this ever happen again. It’s important that we be in lab. We don’t always get along with everyone.”
“clearly a lie”
“Because Ms. Dibbern had delayed her final exams because of the night where her colleagues threatened to rape her, Ms. Dibbern needed to reschedule make-up examinations. Ms. Dibbern rescheduled her missed exam in Professor Stein’s course and earned the grade of “A” on the exam. Ms. Dibbern attempted to reschedule her exam in Professor Ghosh’s course but had great difficulty in reaching him. When Ms. Dibbern finally reached the professor he told her that her “personal emergency” was “clearly a lie” and demanded that she sit for the examination the next day.”
Stalking
“Another engineering graduate student stalked and assaulted Ms. Dibbern beginning in the summer of 2008. He confessed that he was in love with her. Ms. Dibbern had a boyfriend and explained as much. Following this event, the student refused to believe Ms. Dibbern did not return his feelings, and he began to call Ms. Dibbern late at night, to wait for her after classes, and to follow her. In October 2008, Ms. Dibbern asked for space. In November 2008, when she found the student waiting for her, Ms. Dibbern insisted that she needed to return home to hurriedly prepare for a meeting, and so she started jogging home. The student jogged behind her.
In December 2008, the student called Ms. Dibbern and asked her to dinner. Ms. Dibbern said no. Later that night, Ms. Dibbern saw the student waiting for her outside of the lab. Ms. Dibbern observed the student walking in circles in a shaded spot away from the lighted doorway. Ms. Dibbern went inside the building and the student followed her up the stairs to her office. The student had a key card that accessed the building. The student confronted Ms. Dibbern in her lab.
Ms. Dibbern feared that her stalker had been talking to her other harassers and was a part of their plan to rape her. Ms. Dibbern asked the student to leave. He would not, and the student then forcibly pulled Ms. Dibbern against his body, squeezing her to the point that it caused her pain. Ms. Dibbern insisted that he stop and pushed him away three times before he left.”
Report to the Office of Institutional Equity
“In January 2009, Ms. Dibbern called the University of Michigan Office Of Institutional Equity in order to learn more about possible recourse and the process required for reporting her harassment. Ms. Dibbern spoke anonymously. She soon realized that she was speaking over the phone with the Associate Vice Provost for Academic and Faculty Affairs and Senior Director, Anthony Walesby, who also serves as the University’s Title IX Coordinator.
In this call, Ms. Dibbern explained the attempted sexual assault, the persistent sexual harassment, that her professor had told her to ‘get over it and get back to lab,’ and that she feared for her safety because she must walk from her lab at night, after hours, and her stalker had access to the lab.
In response, Mr. Walesby asked Ms. Dibbern if she had any email documentation because “if it is not in email, there’s nothing we can do about it” and he needed “concrete proof.” Mr. Walesby made comments including: “you know how it is,” “people assume women false report this kind of stuff,” and impressed upon Ms. Dibbern that the burden of proof is on the student and that OIE needs an iron-clad case in order to respond seriously.
Further, Mr. Walesby stated even if an investigation were conducted, Ms. Dibbern would not be able to know what action was taken against the perpetrators. Mr. Walesby explained that he had no knowledge of anyone ever being suspended or asked to leave the
University for this type of behavior. Mr. Walesby told Ms. Dibbern that if professors were disciplined, they would likely receive one week without pay. Mr. Walesby likened the punishment to a “one week unpaid vacation.”
Additionally, Mr. Walesby told Ms. Dibbern that she would have to confront the perpetrators at mediation. Again, this advice is contrary to Title IX directives. While grievance procedures may include informal mechanisms, such as mediation, the Office of Civil Rights has advised recipients that it is “improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator.” In cases involving allegations of sexual assault, “mediation is not appropriate even on a voluntary basis.”
Further, Mr. Walesby stated that he knows “women don’t false report and they take this stuff seriously but we can’t protect you from all types of retaliation.” Mr. Walesby then said “the truth is, there are some women who are overly sensitive” . . . “and who can’t take a joke and feel offended.” “We know that [women] don’t false report but some women can’t take a joke.”
After all of these statements from Mr. Walesby, Ms. Dibbern felt she had heard all she needed to know, felt she had no real or effective recourse, and ended the call.”
Can I avoid working alone late at night?
“At this point in time, Ms. Dibbern was terrified. She felt unsafe. Her stalker knew where she lived, so Ms. Dibbern moved to a new apartment for a second time. Ms. Dibbern’s stalker held a card with which he could swipe into her lab building and he knew her lab schedule. Ms. Dibbern told her Department Advisor, Prof. Pollock, that she no longer wanted to be in the lab late at night and wanted to change her lab schedule. Prof. Pollock refused Ms. Dibbern’s request, stating “I need the results.”
Report to campus police
“In February 2009, Ms. Dibbern contacted the University’s Department of Public Safety (DPS) to report her stalker. Later in February 2009, Ms. Dibbern’s female friend, another graduate student in the Engineering Department, contacted Ms. Dibbern because, she said, she was worried for Ms. Dibbern due to the stalker’s actions toward herself. The female friend would take calls from the stalker, wherein he would describe his poor health and other desperate feelings if he could not be with Ms. Dibbern. The stalker would follow her after class and meetings. The stalker’s intent in following this friend was to gain access to Ms. Dibbern via the friend. However, the friend was concerned for her safety.”
Ms. Dibbern is fired by her advisor
“On December 23, 2009, Ms. Dibbern received an email notice from her department advisor, Prof. Pollock, terminating Ms. Dibbern’s appointment for the next semester – after the appointment had been processed. Prof. Pollock cited the following as reasons for
“lack of commitment” to her degree thus justifying Ms. Dibbern’s dismissal: (1) the two week leave Ms. Dibbern took in April 2008 (immediately following the attempted rape); (2) her incompletes in coursework (as a result of rescheduling following the attempted rape); (3) coursework outside of MSE (arranged so to avoid her sexual harassers); (4) a 10 hour per week research job in the School of Natural Resources and Environment (appointment with Professor Edward Parson who also teaches at the University of Michigan Law School; Ms. Dibbern met Prof. Parson while taking a law course outside of her department so to avoid her sexual harassers). All stated reasons related to Ms. Dibbern’s harassment by students within the Department. Ms. Dibbern had elected some coursework outside of the MSE department so to avoid taking courses with her harassers. This practice was permitted under Department policy.
In January 2010, Ms. Dibbern disclosed the sexual harassment she experienced within the Engineering Department to Professor Rachel Goldman, in her capacity as graduate program chair of the MSE department. Renee Hilgendorf, the graduate coordinator for the Engineering Department was present at this meeting. In a separate meeting, Ms. Dibbern disclosed the harassment to the Director of the Rackham Office of Graduate Student Success and current ombudsman, and the Center for the Education of Women as she made efforts to find out how she could remain at the University, continue her research and complete her Ph.D., in spite of Prof. Pollock’s decision.”
Professor Goldman offers Ms. Dibbern a position to start over in her laboratory
“Eventually, in February 2010, Prof. Goldman took Ms. Dibbern into her research group. In April 2010, Prof. Goldman requested that Ms. Dibbern take a job within her research group to work with a specific analysis instrument, the STM. This position was fully funded. Ms. Dibbern did well with her research and academic performance and entered the Winter Term 2011 with a plan to complete her preliminary examination in early Fall 2011. Prof. Goldman expressed full confidence in Ms. Dibbern and her academic work.”
Ms. Dibbern begins volunteering with Sexual Assault, Prevention and Awareness Center
“Ms. Dibbern had started volunteering with SAPAC in the fall of 2010 because Ms. Dibbern felt that if she couldn’t make herself safe within her Department, she could work to help make other women safe. Ms. Dibbern also worked with SAPAC to implement sexual harassment training for graduate students within the College of Engineering.”
Dr. Goldman pressures Ms. Dibbern to cease outside activities with SAPAC
“On April 11, 2011, Ms. Dibbern received an unexpected phone call from Professor Goldman. Prof. Goldman had just left a Student Relations Advisory Council meeting where Title IX requirements were discussed following the publicity of investigations at other universities by the U.S. Department of Education. Prof. Goldman asked Ms. Dibbern if she had heard of Title IX and the investigations at “Harvard and Yale?” Prof. Goldman said. “OCR was investigating the—I guess you’d call them perpetrators” . . . “I might have to report you whether you want me to or not.”
Under pressure from the Department of Education the University instituted a new interim policy with regard to reports of sexual harassment and sexual assault. Under the new policy, all UM employees must report any incidents of sexual harassment to the Title IX coordinator (Mr. Walesby) in the Office of Institutional Equity for investigation.
“Within the next days, Prof. Goldman reprimanded Ms. Dibbern for her “tone” in an email written to lab partners. Prof. Goldman also questioned Ms. Dibbern’s commitment to the graduate program and the amount of time that Ms. Dibbern spent in lab. Prof. Goldman instructed Ms. Dibbern to stop being involved in non-academic activities, stating specifically: “I know you have that SAPAC thing.”
Ms. Dibbern, fearful of losing an advisor and funding for the second time in her graduate career, immediately quit SAPAC and ceased her efforts to implement sexual harassment training within the Engineering Department. Ms. Dibbern, who often wore her SAPAC sweatshirt in the department, so to feel empowered in the face of harassment, put away the sweatshirt and removed all SAPAC buttons from her backpack and other bags so that Prof. Goldman would not suspect any involvement. Ms. Dibbern felt she needed to make her activism and involvement invisible so not to jeopardize her funding. Ms. Dibbern wanted to graduate and was just months away from her scheduled preliminary exam and less than two years from earning her Ph.D. Ms. Dibbern also immediately ceased her involvement in implementing sexual harassment training within the College of Engineering.”
Ms. Dibbern works with GEO on the unionization of GSRAs
Dibbern is a longtime GEO member and its third-ranking officer
Still desiring to implement sexual harassment training with the Engineering Department, Ms. Dibbern turned to the Graduate Employees Organization (“GEO”) because she realized that the GEO could perhaps negotiate for such training for graduate students as a part of a contract. Ms. Dibbern realized that if the training were a required provision of a contract, the University would have an obligation to provide such training. Ms. Dibbern was excited by the prospect of codifying the training. At this point, Ms. Dibbern increased her involvement with the GEO and the research assistant organizing campaign.
In the spring of 2011, more than 1,000 GSRAs signed cards asking for a unionization election to join GEO[2]. The conservative public policy organization, The Mackinac Center, opposed unionization and offered legal assistance to graduate students opposed to unionization. The Michigan Attorney General also intervened against a unionization election. The University administration opposed unionization and even testified before state legislative committees but the Board of Regents voted along party lines to support unionization (6 Democrats for vs. 2 Republicans opposed). An Administrative law judge began hearing testimony to reverse the 1981 decision on February 1, 2012. The Republican State Legislature and the Republican Governor passed a law declaring that graduate students were not employees and not eligible for unionization[3].
“On September 16, 2011, Ms. Dibbern received an email from Prof. Goldman informing her that she was cancelling Ms. Dibbern’s funding immediately and asserted that Ms. Dibbern must withdraw from the term. An immediate revocation of funding without warning, and for a student who was performing her duties, is contrary to Materials Science and Engineering policy, which explicitly states that a student cannot be refused funding unless the student were fundamentally negligent in performing work and abandoned the job.”
Dibbern claims that the due process that is required by the Department of Engineering’s own policies was greatly condensed so that it occurred over a one month period[4]. Department policy requires that a student have time and clear milestones so that they can have an opportunity to improve their performance[5]. Dibbern cites an email from Professor Goldman on August 8, 2011 where she gives her instructions on improving her performance[6] but she is told that her funding will be withdrawn and Professor Goldman will withdraw as her advisor on August 30, 2011. She also claims that Professor Goldman frequently made remarks against her unionizing activities.
Dibbern appealed to her department chair who agreed to fund her position until the end of the term; however, Professor Goldman changed the locks on her laboratory in order to prevent Dibbern from continuing to work.
The leadership of GEO, along with Dibbern held a press conference and claimed that Dibbern’s dismissal was the result of her efforts to unionize the GSRAs, which she says was a response to the University’s lack of response to her claims of sexual harassment[7].
Other students from Professor Goldman’s laboratory made public statements supporting her decision to terminate Dibbern[8].
Provost Phil Hanlon, the university’s chief academic officer, said at a meeting of the Board of Regents that he had personally reviewed the student’s academic record[9].
“I have personally reviewed the academic record in this case, and I’m convinced that the academic decisions made by our faculty were justified and correct and appropriate, and that the decisions were made on academic grounds. And so I think that the faculty and department in this case followed a thorough and fair process, and I want to offer my strong support for them.”
According to a federal law, FERPA, students’ records are confidential. By making his public comments, Provost Hanlon may have violated FERPA.
Jennifer Dibbern’s attorneys filed a multi-count lawsuit against the University of Michigan, The Board of Regents, President Mary Sue Coleman, Dean of Engineering Peter Green, Professor Tresa Pollack and Professor Rachel Goldman on December 21, 2012. Before the University responded, Dibberns attorneys file a first amended complaint on January 25, 2013.
They have alleged sexual harassment, retaliation, violation of equal protection, lack of due process, violation of free speech, sex discrimination under state law, retaliation under state law and invasion of privacy.
The University’s attorneys have primarily focused on motions to dismiss defendants and counts based upon legal grounds, such as sovereign immunity, statute of limitations and insufficient service to defendants.
Rather than filing an answer to the complaint, the University’s attorneys file a partial motion to dismiss on March 4, 2013[10]. In that motion the parties agreed to dismiss the causes of action for equal protection and freedom of speech against the University and the individuals in their official capacity. The University’s attorneys then argued that all of the other claims except the invasion of privacy should be dismissed as a matter of law. They claimed that all of the sexual harassment and sexual discrimination claims were barred by the statute of limitations and could not be deemed a continuing violation. They then argued that each of the other causes of action failed to state a claim upon which relief could be granted.
Dibbern’s attorneys responded to the motion to dismiss on April 19, 2013[11] arguing primarily that the harassment, discrimination and retaliation continued well into the time beyond the statute of limitations. They offered an amended complaint to add details of more recent examples of continuing harassment and retaliation. On June 5, 2013, the court ordered that the plaintiff could file a second amended complaint[12], which was filed on June 7, 2013[13]. On June 10, 2013, the court ordered that the first motion to dismiss was denied without prejudice to give the defense an opportunity to refile a motion in response to the second amended complaint[14].
The University’s attorneys filed a new motion to dismiss on June 28, 2013, which restated most of the same arguments as their first motion and added an argument that any new examples of harassment alleged in the amended complaint were not connected to the earlier events and that the university was not made aware of those events by the plaintiff[15]. The University’s attorneys also added a claim that defendants Rachel Goldman and Peter Green were not served with the complaint in their personal capacities and should therefore be dismissed.
Dibbern’s attorneys responded on August 2, 2013, which restated most of the same arguments as their first response[16]. They added an argument that the defendant Goldman and Green had been properly served and that they had waived that defense by not raising it earlier. The attorneys asked that if the court found that there was a problem with the service that they be granted more time to serve the second amended complaint.
The parties had a hearing on the motion to dismiss on October 25, 2013. It was interesting that the University’s attorney asked to appear for defendants Goldman and Green in their personal capacity on the limited basis of arguing that they were not properly served. The Judge asked the defense counsel why should he not find that she had waived the improper service defense because the defense had not raised it during their first motion to dismiss. She said that at the time the motion was filed that she did not represent the defendants in their personal capacities. It is interesting to note that in previous cases the University has generally represented the faculty in all capacities and that no other attorney is representing Goldman or Green. The hearing also focused on the issue of the statute of limitations and that there may be differences between the federal and state laws with regard to continuing violations.
The judge took the matter under advisement and said that he thought he would have a finding in about one week.
According to her complaint Dibbern became involved in the efforts to unionize because she had been[1];
“a survivor of the sexual harassment and a hostile environment that festered in that department [Engineering], and a victim of retaliation by University officials for daring to speak up and advocate for better educational conditions.”
Ms. Dibbern describes a discussion that took place the first day of classes at UM;
“On Ms. Dibbern’s first day as a Ph.D. student within the Materials Science and Engineering program she attended her first class and [was] invited to lunch [with] some classmates with whom she’d be working, so to get to know them better. Immediately after introducing herself at the lunch table, Ms. Dibbern was subjected to comments indicative of the gender-based harassment and hostile environment she would live day in and day out as she worked towards completion of her Ph.D.…”
“Girls in Engineering aren’t real girls”
“Ms. Dibbern was told by her student colleagues: “real women aren’t engineers,” “engineering women are different—they’re not normal . . . they aren’t like real girls. Not normal at all. Even if they are around, no one considers them women,”…
One student challenged Ms. Dibbern’s place within the Ph.D. program and whether she deserved to have been admitted to MIT. The student stated during lunch: “You had it easy because you’re a woman in science. You have to admit it. You’re less qualified but still able to get in just because you’re a girl. No, you have to admit it—people make things easier even for MIT—I mean, [Male Student] deserved to go to MIT, as a white male he has nothing helping him and he has to be even more qualified—he’s got nothing helping him get in. You add diversity to the class. Plus, guys would want to help you study, cut you breaks. Don’t get me wrong—I don’t mind as a guy in science, more variety . . . hot girls to study with who’d need me to help them pass, in exchange, you know, as long as they look cute.”
A second student stated: “Let’s be honest, the girls in engineering aren’t real girls—no guy would look at them that way so we need more real girls to study with, date—something to look at in class. Real girls. There’s something wrong with the engineering girls.”
“Parts on the inside”
“After that day, the men she met at lunch, and other male Ph.D. program students, regularly taunted Ms. Dibbern at group study sessions, ridiculed her when she produced correct answers to problem sets, and spoke over her when she tried to speak. At the study group, the Student Harassers assigned Ms. Dibbern the name “parts on the inside.” When Ms. Dibbern spoke up in the study group, a student stated: “I can’t hear you—what? All I hear is ‘my parts are on the inside, my parts are on the inside, my parts are on the inside.” “Parts on the inside” became a running joke and was used by all of the Student Harassers repeatedly, and especially during group study sessions in order to ignore or negate anything Ms. Dibbern said to the group.
Ms. Dibbern attended MSE core classes and Engineering Department events with the Student Harassers as a part of her program. The Student Harassers regularly told Ms. Dibbern that they masturbated with her in mind and would plan to call her at climax. When Ms. Dibbern left classes in which she was enrolled with these students, one or more of the students would intentionally catch her attention, fashion his hand in the shape of a telephone next to his ear, and state, “Call you later, Jenn.”
“Boys can be like that”
“After Ms. Dibbern reported the harassment to her engineering department advisor, the University took no action and the harassment escalated to sexual assault. Ms. Dibbern reported the sexual and gender-based harassment by other students to her Department Advisor, Prof. Tresa Pollock, as early as November 2007 but her reports were dismissed. Prof. Pollock responded that boys can be “like that” and told Ms. Dibbern to stay focused on work.”
Go on a date with me and I’ll protect you
“The Student Harassers continued to taunt and harass Ms. Dibbern into the Winter
2008 semester. Additionally, after Ms. Dibbern refused to make herself sexually available to one student, the student, who had not previously done so, encouraged and incited harassment. Only if Ms. Dibbern agreed to go on a date with the student, would he temporarily cease his own participation and encouragement of other students’ harassment of Ms. Dibbern and offer Ms. Dibbern some protection.”
Ms. Dibbern begins to document comments in her journal
“Ms. Dibbern documented in her personal journal harassing comments which occurred prior to February 24, 2008. These comments included:
(1) “I’ll bet you’ve been f***ed so much. You’re so dirty. A little late for you to worry about that isn’t it? You’ll never be clean, you slut”;
(2) “That was a really dumb thing to say, just so you know. Really dumb. But then what do you say that isn’t?”;
(3) “You are a walking cliché. Everything you do is because you are a woman. Just learn and admit it.”;
(4) “Be a good girl and get me a drink. Now.”;
(5) “Well, that’s because your parts are on the inside.”;
(6) “You know that comic? The XKCD one where it says, ‘Girls suck at math’? Funny how true that is, right? How’d you get in here again?”;
(7) “Well, we do always talk over you but that is because you’d never have anything important to say--your parts are on the inside.”;
(8) “You talk and all I hear is blah, blah, blah my parts are on the inside, my parts are on the inside, my parts are on the inside.”;
(9) “You know you were let into MIT
because you’re a woman. I applied several times and got rejected because less qualified—come on, be honest--less qualified women like you were let in to meet their quota.”;
(10) “Real women aren’t engineers.”;
(11) “Engineering women are different—they’re not normal. They aren’t like real girls. Not normal at all. Even if they are around, no one considers them women.”;
(12) “We need more cute girls in engineering to study with and more options for dates. It’d be great because if we let them in—you know real girls who were honestly, probably not smart enough to hack it—it wouldn’t matter if they couldn’t cut it. If we let them in and helped them study, skim by in classes, maybe there would be girls in engineering who were pretty.”;
(13) “That hat is stupid. Why would you wear something that stupid? Do you think it is fashionable because your parts are on the inside? But you’re not a real woman. You just look dumb.”;
(14) “Well, now that you don’t have a boyfriend, who is going to keep you in line? If you don’t have a boyfriend, someone has to take over responsibility for you.”;
(15) “Do you want to come over and clean my house? I don’t care. Do it anyway.”;
(16) “Suck up . . . “Or did you just suck to get a better grade.”
Additionally, her harassers sent emails to the study group and directly to Ms. Dibbern which questioned women’s place in the sciences or circulated articles suggesting that women are behind in earning degrees in the physical sciences. Other emails included comments suggesting sexual or violent behavior toward Ms. Dibbern. For example, in an email on March 28, 2008, from one student about a carpool to the party discussed infra, the student wrote that after picking up some students at one apartment building, the carpool could next “swing by and grab Jen. Er, grab in a nice way though.”
Physical violence and threats of rape
“The continued sexual and gender-based harassment and threatening conduct escalated to violence when, in late March 2008, Ms. Dibbern accompanied a group of students to a tea shop. While standing inside the tea shop, one of the students insisted that Ms. Dibbern give him her drink when she received her order before him. When Ms. Dibbern refused, the student slapped Ms. Dibbern’s face. When she still refused, the student slapped Ms. Dibbern again. No other students stopped the student or interjected.
In April 2008, the same student who slapped Ms. Dibbern threatened to rape her. On the night prior to a final exam, Ms. Dibbern was studying in the Materials Science and Engineering lounge in the Herbert H. Dow building. Two other students were also present in the lounge studying for final exams. Ms. Dibbern sat near the back of the room, furthest from the lounge door. The threats went to the level of describing in detail how the rape could occur, and students discussed which one would go first. The students also reminded her that they knew where she lived and where her lab was, and suggested that she would “pretend she didn’t like it.”
Immediately after the incident, Ms. Dibbern also called her parents who immediately called the Sexual Assault Prevention and Awareness (“SAPAC”) crisis line.
Ms. Dibbern Reported the Attempted Rape to University Counseling and Psychological Services (“CAPS”) and to Her Engineering Department Advisor.
Ms. Dibbern met the next day with a counselor at the University Counseling and Psychological Services (“CAPS”). The counselor advised Ms. Dibbern to move to a new apartment so the Student Harassers would no longer know where she lived. CAPS also provided Ms. Dibbern a letter that allowed her to move the date of her two exams in the courses taught by Professor Amit Ghosh and by Professor Max Stein. Before moving the dates of her exams, Ms. Dibbern was earning the grade of “A” in both courses. CAPS also advised Ms. Dibbern to take a brief leave of absence and to return to her parents’ home in Iowa, which she did.”
“These things sometimes happen”
“Once back from leave, Ms. Dibbern, in explaining why she took time off, reported the conduct she experienced to her advisor, Prof. Pollock. Ms. Dibbern explained that the men had threatened to physically harm her and to take advantage of her against her will. In mid-explanation, Prof. Pollock interrupted Ms. Dibbern to say: “These things sometimes happen. We have to get over it and get back to lab. Don’t let this ever happen again. It’s important that we be in lab. We don’t always get along with everyone.”
“clearly a lie”
“Because Ms. Dibbern had delayed her final exams because of the night where her colleagues threatened to rape her, Ms. Dibbern needed to reschedule make-up examinations. Ms. Dibbern rescheduled her missed exam in Professor Stein’s course and earned the grade of “A” on the exam. Ms. Dibbern attempted to reschedule her exam in Professor Ghosh’s course but had great difficulty in reaching him. When Ms. Dibbern finally reached the professor he told her that her “personal emergency” was “clearly a lie” and demanded that she sit for the examination the next day.”
Stalking
“Another engineering graduate student stalked and assaulted Ms. Dibbern beginning in the summer of 2008. He confessed that he was in love with her. Ms. Dibbern had a boyfriend and explained as much. Following this event, the student refused to believe Ms. Dibbern did not return his feelings, and he began to call Ms. Dibbern late at night, to wait for her after classes, and to follow her. In October 2008, Ms. Dibbern asked for space. In November 2008, when she found the student waiting for her, Ms. Dibbern insisted that she needed to return home to hurriedly prepare for a meeting, and so she started jogging home. The student jogged behind her.
In December 2008, the student called Ms. Dibbern and asked her to dinner. Ms. Dibbern said no. Later that night, Ms. Dibbern saw the student waiting for her outside of the lab. Ms. Dibbern observed the student walking in circles in a shaded spot away from the lighted doorway. Ms. Dibbern went inside the building and the student followed her up the stairs to her office. The student had a key card that accessed the building. The student confronted Ms. Dibbern in her lab.
Ms. Dibbern feared that her stalker had been talking to her other harassers and was a part of their plan to rape her. Ms. Dibbern asked the student to leave. He would not, and the student then forcibly pulled Ms. Dibbern against his body, squeezing her to the point that it caused her pain. Ms. Dibbern insisted that he stop and pushed him away three times before he left.”
Report to the Office of Institutional Equity
“In January 2009, Ms. Dibbern called the University of Michigan Office Of Institutional Equity in order to learn more about possible recourse and the process required for reporting her harassment. Ms. Dibbern spoke anonymously. She soon realized that she was speaking over the phone with the Associate Vice Provost for Academic and Faculty Affairs and Senior Director, Anthony Walesby, who also serves as the University’s Title IX Coordinator.
In this call, Ms. Dibbern explained the attempted sexual assault, the persistent sexual harassment, that her professor had told her to ‘get over it and get back to lab,’ and that she feared for her safety because she must walk from her lab at night, after hours, and her stalker had access to the lab.
In response, Mr. Walesby asked Ms. Dibbern if she had any email documentation because “if it is not in email, there’s nothing we can do about it” and he needed “concrete proof.” Mr. Walesby made comments including: “you know how it is,” “people assume women false report this kind of stuff,” and impressed upon Ms. Dibbern that the burden of proof is on the student and that OIE needs an iron-clad case in order to respond seriously.
Further, Mr. Walesby stated even if an investigation were conducted, Ms. Dibbern would not be able to know what action was taken against the perpetrators. Mr. Walesby explained that he had no knowledge of anyone ever being suspended or asked to leave the
University for this type of behavior. Mr. Walesby told Ms. Dibbern that if professors were disciplined, they would likely receive one week without pay. Mr. Walesby likened the punishment to a “one week unpaid vacation.”
Additionally, Mr. Walesby told Ms. Dibbern that she would have to confront the perpetrators at mediation. Again, this advice is contrary to Title IX directives. While grievance procedures may include informal mechanisms, such as mediation, the Office of Civil Rights has advised recipients that it is “improper for a student who complains of harassment to be required to work out the problem directly with the alleged perpetrator.” In cases involving allegations of sexual assault, “mediation is not appropriate even on a voluntary basis.”
Further, Mr. Walesby stated that he knows “women don’t false report and they take this stuff seriously but we can’t protect you from all types of retaliation.” Mr. Walesby then said “the truth is, there are some women who are overly sensitive” . . . “and who can’t take a joke and feel offended.” “We know that [women] don’t false report but some women can’t take a joke.”
After all of these statements from Mr. Walesby, Ms. Dibbern felt she had heard all she needed to know, felt she had no real or effective recourse, and ended the call.”
Can I avoid working alone late at night?
“At this point in time, Ms. Dibbern was terrified. She felt unsafe. Her stalker knew where she lived, so Ms. Dibbern moved to a new apartment for a second time. Ms. Dibbern’s stalker held a card with which he could swipe into her lab building and he knew her lab schedule. Ms. Dibbern told her Department Advisor, Prof. Pollock, that she no longer wanted to be in the lab late at night and wanted to change her lab schedule. Prof. Pollock refused Ms. Dibbern’s request, stating “I need the results.”
Report to campus police
“In February 2009, Ms. Dibbern contacted the University’s Department of Public Safety (DPS) to report her stalker. Later in February 2009, Ms. Dibbern’s female friend, another graduate student in the Engineering Department, contacted Ms. Dibbern because, she said, she was worried for Ms. Dibbern due to the stalker’s actions toward herself. The female friend would take calls from the stalker, wherein he would describe his poor health and other desperate feelings if he could not be with Ms. Dibbern. The stalker would follow her after class and meetings. The stalker’s intent in following this friend was to gain access to Ms. Dibbern via the friend. However, the friend was concerned for her safety.”
Ms. Dibbern is fired by her advisor
“On December 23, 2009, Ms. Dibbern received an email notice from her department advisor, Prof. Pollock, terminating Ms. Dibbern’s appointment for the next semester – after the appointment had been processed. Prof. Pollock cited the following as reasons for
“lack of commitment” to her degree thus justifying Ms. Dibbern’s dismissal: (1) the two week leave Ms. Dibbern took in April 2008 (immediately following the attempted rape); (2) her incompletes in coursework (as a result of rescheduling following the attempted rape); (3) coursework outside of MSE (arranged so to avoid her sexual harassers); (4) a 10 hour per week research job in the School of Natural Resources and Environment (appointment with Professor Edward Parson who also teaches at the University of Michigan Law School; Ms. Dibbern met Prof. Parson while taking a law course outside of her department so to avoid her sexual harassers). All stated reasons related to Ms. Dibbern’s harassment by students within the Department. Ms. Dibbern had elected some coursework outside of the MSE department so to avoid taking courses with her harassers. This practice was permitted under Department policy.
In January 2010, Ms. Dibbern disclosed the sexual harassment she experienced within the Engineering Department to Professor Rachel Goldman, in her capacity as graduate program chair of the MSE department. Renee Hilgendorf, the graduate coordinator for the Engineering Department was present at this meeting. In a separate meeting, Ms. Dibbern disclosed the harassment to the Director of the Rackham Office of Graduate Student Success and current ombudsman, and the Center for the Education of Women as she made efforts to find out how she could remain at the University, continue her research and complete her Ph.D., in spite of Prof. Pollock’s decision.”
Professor Goldman offers Ms. Dibbern a position to start over in her laboratory
“Eventually, in February 2010, Prof. Goldman took Ms. Dibbern into her research group. In April 2010, Prof. Goldman requested that Ms. Dibbern take a job within her research group to work with a specific analysis instrument, the STM. This position was fully funded. Ms. Dibbern did well with her research and academic performance and entered the Winter Term 2011 with a plan to complete her preliminary examination in early Fall 2011. Prof. Goldman expressed full confidence in Ms. Dibbern and her academic work.”
Ms. Dibbern begins volunteering with Sexual Assault, Prevention and Awareness Center
“Ms. Dibbern had started volunteering with SAPAC in the fall of 2010 because Ms. Dibbern felt that if she couldn’t make herself safe within her Department, she could work to help make other women safe. Ms. Dibbern also worked with SAPAC to implement sexual harassment training for graduate students within the College of Engineering.”
Dr. Goldman pressures Ms. Dibbern to cease outside activities with SAPAC
“On April 11, 2011, Ms. Dibbern received an unexpected phone call from Professor Goldman. Prof. Goldman had just left a Student Relations Advisory Council meeting where Title IX requirements were discussed following the publicity of investigations at other universities by the U.S. Department of Education. Prof. Goldman asked Ms. Dibbern if she had heard of Title IX and the investigations at “Harvard and Yale?” Prof. Goldman said. “OCR was investigating the—I guess you’d call them perpetrators” . . . “I might have to report you whether you want me to or not.”
Under pressure from the Department of Education the University instituted a new interim policy with regard to reports of sexual harassment and sexual assault. Under the new policy, all UM employees must report any incidents of sexual harassment to the Title IX coordinator (Mr. Walesby) in the Office of Institutional Equity for investigation.
“Within the next days, Prof. Goldman reprimanded Ms. Dibbern for her “tone” in an email written to lab partners. Prof. Goldman also questioned Ms. Dibbern’s commitment to the graduate program and the amount of time that Ms. Dibbern spent in lab. Prof. Goldman instructed Ms. Dibbern to stop being involved in non-academic activities, stating specifically: “I know you have that SAPAC thing.”
Ms. Dibbern, fearful of losing an advisor and funding for the second time in her graduate career, immediately quit SAPAC and ceased her efforts to implement sexual harassment training within the Engineering Department. Ms. Dibbern, who often wore her SAPAC sweatshirt in the department, so to feel empowered in the face of harassment, put away the sweatshirt and removed all SAPAC buttons from her backpack and other bags so that Prof. Goldman would not suspect any involvement. Ms. Dibbern felt she needed to make her activism and involvement invisible so not to jeopardize her funding. Ms. Dibbern wanted to graduate and was just months away from her scheduled preliminary exam and less than two years from earning her Ph.D. Ms. Dibbern also immediately ceased her involvement in implementing sexual harassment training within the College of Engineering.”
Ms. Dibbern works with GEO on the unionization of GSRAs
Dibbern is a longtime GEO member and its third-ranking officer
Still desiring to implement sexual harassment training with the Engineering Department, Ms. Dibbern turned to the Graduate Employees Organization (“GEO”) because she realized that the GEO could perhaps negotiate for such training for graduate students as a part of a contract. Ms. Dibbern realized that if the training were a required provision of a contract, the University would have an obligation to provide such training. Ms. Dibbern was excited by the prospect of codifying the training. At this point, Ms. Dibbern increased her involvement with the GEO and the research assistant organizing campaign.
In the spring of 2011, more than 1,000 GSRAs signed cards asking for a unionization election to join GEO[2]. The conservative public policy organization, The Mackinac Center, opposed unionization and offered legal assistance to graduate students opposed to unionization. The Michigan Attorney General also intervened against a unionization election. The University administration opposed unionization and even testified before state legislative committees but the Board of Regents voted along party lines to support unionization (6 Democrats for vs. 2 Republicans opposed). An Administrative law judge began hearing testimony to reverse the 1981 decision on February 1, 2012. The Republican State Legislature and the Republican Governor passed a law declaring that graduate students were not employees and not eligible for unionization[3].
“On September 16, 2011, Ms. Dibbern received an email from Prof. Goldman informing her that she was cancelling Ms. Dibbern’s funding immediately and asserted that Ms. Dibbern must withdraw from the term. An immediate revocation of funding without warning, and for a student who was performing her duties, is contrary to Materials Science and Engineering policy, which explicitly states that a student cannot be refused funding unless the student were fundamentally negligent in performing work and abandoned the job.”
Dibbern claims that the due process that is required by the Department of Engineering’s own policies was greatly condensed so that it occurred over a one month period[4]. Department policy requires that a student have time and clear milestones so that they can have an opportunity to improve their performance[5]. Dibbern cites an email from Professor Goldman on August 8, 2011 where she gives her instructions on improving her performance[6] but she is told that her funding will be withdrawn and Professor Goldman will withdraw as her advisor on August 30, 2011. She also claims that Professor Goldman frequently made remarks against her unionizing activities.
Dibbern appealed to her department chair who agreed to fund her position until the end of the term; however, Professor Goldman changed the locks on her laboratory in order to prevent Dibbern from continuing to work.
The leadership of GEO, along with Dibbern held a press conference and claimed that Dibbern’s dismissal was the result of her efforts to unionize the GSRAs, which she says was a response to the University’s lack of response to her claims of sexual harassment[7].
Other students from Professor Goldman’s laboratory made public statements supporting her decision to terminate Dibbern[8].
Provost Phil Hanlon, the university’s chief academic officer, said at a meeting of the Board of Regents that he had personally reviewed the student’s academic record[9].
“I have personally reviewed the academic record in this case, and I’m convinced that the academic decisions made by our faculty were justified and correct and appropriate, and that the decisions were made on academic grounds. And so I think that the faculty and department in this case followed a thorough and fair process, and I want to offer my strong support for them.”
According to a federal law, FERPA, students’ records are confidential. By making his public comments, Provost Hanlon may have violated FERPA.
Jennifer Dibbern’s attorneys filed a multi-count lawsuit against the University of Michigan, The Board of Regents, President Mary Sue Coleman, Dean of Engineering Peter Green, Professor Tresa Pollack and Professor Rachel Goldman on December 21, 2012. Before the University responded, Dibberns attorneys file a first amended complaint on January 25, 2013.
They have alleged sexual harassment, retaliation, violation of equal protection, lack of due process, violation of free speech, sex discrimination under state law, retaliation under state law and invasion of privacy.
The University’s attorneys have primarily focused on motions to dismiss defendants and counts based upon legal grounds, such as sovereign immunity, statute of limitations and insufficient service to defendants.
Rather than filing an answer to the complaint, the University’s attorneys file a partial motion to dismiss on March 4, 2013[10]. In that motion the parties agreed to dismiss the causes of action for equal protection and freedom of speech against the University and the individuals in their official capacity. The University’s attorneys then argued that all of the other claims except the invasion of privacy should be dismissed as a matter of law. They claimed that all of the sexual harassment and sexual discrimination claims were barred by the statute of limitations and could not be deemed a continuing violation. They then argued that each of the other causes of action failed to state a claim upon which relief could be granted.
Dibbern’s attorneys responded to the motion to dismiss on April 19, 2013[11] arguing primarily that the harassment, discrimination and retaliation continued well into the time beyond the statute of limitations. They offered an amended complaint to add details of more recent examples of continuing harassment and retaliation. On June 5, 2013, the court ordered that the plaintiff could file a second amended complaint[12], which was filed on June 7, 2013[13]. On June 10, 2013, the court ordered that the first motion to dismiss was denied without prejudice to give the defense an opportunity to refile a motion in response to the second amended complaint[14].
The University’s attorneys filed a new motion to dismiss on June 28, 2013, which restated most of the same arguments as their first motion and added an argument that any new examples of harassment alleged in the amended complaint were not connected to the earlier events and that the university was not made aware of those events by the plaintiff[15]. The University’s attorneys also added a claim that defendants Rachel Goldman and Peter Green were not served with the complaint in their personal capacities and should therefore be dismissed.
Dibbern’s attorneys responded on August 2, 2013, which restated most of the same arguments as their first response[16]. They added an argument that the defendant Goldman and Green had been properly served and that they had waived that defense by not raising it earlier. The attorneys asked that if the court found that there was a problem with the service that they be granted more time to serve the second amended complaint.
The parties had a hearing on the motion to dismiss on October 25, 2013. It was interesting that the University’s attorney asked to appear for defendants Goldman and Green in their personal capacity on the limited basis of arguing that they were not properly served. The Judge asked the defense counsel why should he not find that she had waived the improper service defense because the defense had not raised it during their first motion to dismiss. She said that at the time the motion was filed that she did not represent the defendants in their personal capacities. It is interesting to note that in previous cases the University has generally represented the faculty in all capacities and that no other attorney is representing Goldman or Green. The hearing also focused on the issue of the statute of limitations and that there may be differences between the federal and state laws with regard to continuing violations.
The judge took the matter under advisement and said that he thought he would have a finding in about one week.
| 01_first_amended_complaint.pdf |
| 04_timeline.pdf |
| 05_material_sciences_policy.pdf |
| 06_gsraemail.pdf |
| 10_partial_motion_to_dismiss.pdf |
| 11_response_to_partial_motion_to_dismiss.pdf |
| 12_stipulated_order_to_dismiss.pdf |
| 13_second_amended_complaint.pdf |
| 14_order_denying_motion_to_dismiss_without_prejudice.pdf |
| 15_second_motion_to_dismiss.pdf |
| 16_response_to_second_motion_to_dismiss.pdf |
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