Indiana University Responds To Lawsuit From Professor Phil McPhail

USDC IN/ND case 2:22-cv-00137-TLS-APR document 13 filed 06/27/22 page 1 of 41
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MARK MCPHAIL, )
)
Plaintiff, )
)
v. ) CIVIL NO: 2:22-cv-00137-TLS-APR
)
THE TRUSTEES OF INDIANA )
UNIVERSITY, KEN IWAMA, in his individual )
and official capacities; VICKI )
ROMÁN-LAGUNAS, in her individual and )
official capacities; and DAVID KLAMEN, )
in his individual and official capacities; )
)
Defendants. )
DEFENDANTS’ ANSWER TO PLAINTIFF’S

COMPLAINT AND DEMAND FOR JURY TRIAL
Defendants Trustees of Indiana University (the “University”), Ken Iwama (“Iwama”),
Vicki Román-Lagunas (“Román-Lagunas”), and David Klamen (“Klamen”) answer Plaintiff’s
Complaint as follows. For ease of reference, Plaintiff’s allegations are set forth verbatim, followed
by Defendants’ corresponding answers.
Introduction
1. On August 1, 2015 IU hired Mark McPhail, an African-American professor of
Communication, as Executive Vice Chancellor for Academic Affairs for the IU Northwest
campus, and simultaneously as a tenured full professor (the highest academic rank) in IU
Northwest’s Department of Communication. McPhail resigned from the administrative
position in 2016 and assumed a faculty position.
ANSWER: Defendants admit that the University hired Plaintiff, who is African-
American, as Executive Vice Chancellor for Academic Affairs (“EVCAA”) at the Indiana
DMS 22939103.2
University Northwest campus and for a tenured appointment as Professor of
Communication. Defendants admit that Plaintiff’s appointment began in August 2015.
Defendants admit that, before Plaintiff completed his first year as EVCAA, Plaintiff
presented two letters of resignation from the EVCAA position. Defendants admit that the
University accepted Plaintiff’s second tendered resignation notice. Defendants deny
Plaintiff “assumed a faculty position” in 2016, as Plaintiff did not assume his assignment
as a member of the Department of Communication faculty until the Fall of 2017.
Defendants admit that Plaintiff was on paid administrative leave through the Summer of
2017. Defendants otherwise deny the allegations contained in the foregoing paragraph.
2. After McPhail criticized the administration for lack of adherence to university policies and
held a forum in which he said IU Northwest’s campus climate contributed to racial
disparities, Defendants banned him from teaching and reduced his salary by 70%. When
he appealed, Defendants terminated his employment abruptly and without a hearing,
substantially damaging if not ending his career.
ANSWER: Defendants deny that any alleged criticism of “the administration for
lack of adherence to university policies” or any forum (or anything said at any forum) was
in any way connected to any adverse action taken against Plaintiff. Defendants are without
knowledge or information sufficient to form a belief as to whether Plaintiff said, “IU’s
Northwest’s campus climate contributed to racial disparities,” and therefore deny the same.
Defendants deny the remaining allegations contained in the foregoing paragraph.
3. McPhail brings this action for breach of contract, intentional interference with contract,
violation of the First Amendment to the United States Constitution, negligence per se for
violation of IC 21-39-3 (“the Academic Whistleblower Statute”), violation of the Due
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Process Clause of the Fourteenth Amendment, and discrimination and retaliation as
prohibited by the Civil Rights Act of 1866.
ANSWER: Defendants admit that Plaintiff purports to bring the claims set forth
in the foregoing paragraph, but deny all liability and all alleged claims.
Parties
4. From August of 2015 until September of 2021, McPhail was employed at IU. He currently
resides in Michigan.
ANSWER: Defendants admit that the University employed Plaintiff from August
2015 to September 2021. Defendants are without knowledge or information sufficient to
form a belief as to whether Plaintiff currently resides in Michigan and therefore deny same.
Defendants deny any remaining allegations contained in the foregoing paragraph.
5. At all times relevant hereto, Román-Lagunas and Klamen were employees of IU.
ANSWER: Defendants admit the University employed Román-Lagunas and
Klamen during certain portions of Plaintiff’s employment with the University. Defendants
deny any remaining allegations contained in the foregoing paragraph.
6. Iwama was appointed Chancellor of IU Northwest in 2020, and since that time has served
as the chief administrative officer of the IU Northwest campus.
ANSWER: Defendants admit the allegations contained in the foregoing
paragraph.
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7. At all times relevant hereto, IU was a public educational institution established under Title
21, Article 20 of the Indiana Code.
paragraph.
Jurisdiction, Venue & Cause of Action
8. This action is authorized and instituted pursuant to Indiana statutory and common law.
ANSWER: Defendants admit that Plaintiff filed this action in an Indiana state
court. Defendants removed this action to federal court. Defendants deny any remaining
allegations contained in the foregoing paragraph.
9. This Court is a court of general jurisdiction, and thereby has jurisdiction over Plaintiff’s
federal claim.
ANSWER: Defendants do not contest this federal court’s jurisdiction over
Plaintiff’s claims. Defendants deny any remaining allegations contained in the foregoing
paragraph.
10. Lake County, Indiana is an appropriate venue for this action by virtue of Trial Rule 75
because Indiana University Northwest is located here, most of the actions alleged occurred
here, and most of the evidence relevant to this action is likely to be located here.
ANSWER: This case has been removed to federal court. Defendants do not deny
venue in this federal court. Defendants otherwise deny the allegations contained in the
foregoing paragraph.
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Factual Allegations
11. In 1987, McPhail earned a Doctor of Philosophy in Communication from the University
of Massachusetts. Thereafter, he served in several faculty and academic administrative
positions, published widely, and spoke in numerous domestic and international academic
conferences.
ANSWER: Upon information and belief, the academic history Plaintiff sets forth
in the foregoing paragraph regarding the University of Massachusetts is true. Upon
information and belief, Defendants admits that Plaintiff has served in faculty and academic
administrative positions. Upon information and belief, Defendants admit that Plaintiff has
had various positions of varying lengths at different institutions. Defendants admit that
Plaintiff has published and has reportedly spoken at certain domestic and international
academic conferences. Defendants are without knowledge or information sufficient to
form a belief as to the remaining allegations set forth in the foregoing paragraph and
therefore deny same.
12. In May of 2015, IU and McPhail entered into an employment contract through which IU
Northwest hired McPhail as the Executive Vice Chancellor for Academic Affairs
(“EVCAA”) as well as a tenured Professor of Communication. Exhibit H, attached hereto.
ANSWER: Defendants admit that, in May 2015, the University and Plaintiff
agreed that Plaintiff would begin a term of employment to begin later that year as EVCAA
and tenured Professor of Communication. Defendants deny any remaining allegations
contained in the foregoing paragraph.
13. Shortly thereafter, the IU Northwest Communication Department Chair, the College of
Arts and Sciences Promotion and Tenure Committee as well as the Campus Promotion and
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Tenure Committee reviewed McPhail’s record of teaching, research and administrative
background and unanimously supported his promotion to the rank of full professor of
Communication.
ANSWER: Defendants admit that, in 2015, the then-Communication Department
Chair; the Promotion and Tenure Committee; and the Campus Promotion and Tenure
Committee reportedly reviewed available information regarding Plaintiff’s teaching,
research, and administrative background and, without any vote in opposition, supported his
promotion to the rank of full professor of Communication. Defendants deny any remaining
14. Through his employment contract with IU, McPhail was assured a number of substantive
and procedural employment rights, including those reflected in Exhibits A through G to
this Complaint.
ANSWER: Defendants deny this paragraph to the extent it calls for a legal
conclusion regarding the existence of substantive and procedural employment rights.
Defendants are without knowledge or information sufficient to form a belief as to the
remaining allegations set forth in the foregoing paragraph and therefore deny same.
15. Among those employment policies is IU’s Academic Freedom policy, which guaranteed
academic appointees the freedom “to express views on matters having to do with the
university and its policies, and on issues of public interest generally.” Policy ACA-32.
Exhibit A.
ANSWER: Defendants admit that Exhibit A is a copy of the University’s
Academic Freedom policy ACA-32, which speaks for itself. Defendants deny that Plaintiff
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has quoted the referenced policy in its entirety. Defendants otherwise deny the allegations
16. IU also protects the right of faculty to raise concerns about wrongful conduct through UA-
04, IU’s Whistleblower Protection Policy. Ex. B.
ANSWER: Defendants admit that Exhibit B is a copy of the University’s
Whistleblower Protection Policy UA-04, which speaks for itself. Defendants otherwise
deny the allegations contained in the foregoing paragraph.
17. IU also guaranteed tenured faculty several procedural protections as prerequisites to the
imposition of discipline and termination. Exs. C-G.
conclusion regarding the existence of “several procedural protections as prerequisites to
the imposition of discipline and termination.” Defendants otherwise deny the allegations
18. McPhail served as EVCAA from May of 2015 until July 31, 2016. At that point, he
resigned due to the fact that then-Chancellor Lowe undermined his authority and resisted
his attempts to implement certain IU policies.
ANSWER: Defendants admit that Plaintiff’s appointment as EVCAA began in
August 2015. Defendants admit that, by virtue of Plaintiff’s voluntary resignation,
Plaintiff’s short tenure as EVCAA ended effective July 31, 2016. Defendants otherwise
19. McPhail was then appointed to the faculty position for which he was approved at his hire,
that of Professor of Communication.
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ANSWER: Defendants admit that, in 2017 (after an extended paid leave of
absence), Plaintiff assumed the faculty position for which he previously was approved.
Defendants otherwise deny the allegations contained in the foregoing paragraph.
20. After McPhail’s resignation, Román-Lagunas assumed the EVCAA position following the
interim appointment of Anna Sue Rominger and continues in that position to this day.
ANSWER: Defendants admit that, after Plaintiff’s July 2016 resignation, Anna
Sue Rominger served as interim EVCAA until Román-Lagunas was hired to assume the
role of EVCAA. Defendants admit that Román-Lagunas continues to serve in the role of
EVCAA. Defendants deny any remaining allegations contained in the foregoing
paragraph.
21. On April 18, 2018 McPhail organized a public forum titled “Diversity: An unfulfilled
promise at IU Northwest.” The forum highlighted challenges faced by black students at IU
Northwest, especially in the area of retention, and identified ways in which IU Northwest
had failed to support those students. Several members of the Indiana Black Legislative
Caucus of the Indiana state legislature spoke at the forum, as did McPhail.
ANSWER: Defendants admit that a forum was held in the IU Northwest Library
and Conference Center on April 18, 2018. Defendants admit that the Indiana Black
Legislative Caucus was identified as hosting this event. Defendants are without knowledge
or information sufficient to form a belief as to the remaining allegations contained in the
foregoing paragraph and therefore deny same.
22. During the forum, McPhail presented a report highlighting findings of the Gary
Commission (“the Commission”) on the Social Status of Black Males. He presented the
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Commission’s statistical reports about achievement gaps along racial and socioeconomic
lines and its recommendation that Universities provide comprehensive supports for at-risk
students.” [sic] McPhail highlighted the fact that the diversity of the staff, faculty and
student population on campus is important to the campus’s success in retention, and that
overemphasis on institutional “diversity” initiatives can obscure or frustrate progress.
ANSWER: Plaintiff makes allegations regarding what allegedly occurred at a
public forum on the University’s campus more than four years ago. Defendants currently
are without knowledge or information sufficient to form a belief as to the specific
allegations contained in the foregoing paragraph and therefore deny same. Defendants
admit that a media report regarding the forum indicated there was discussion regarding
education in Indiana and “across the nation.” Defendants admit that, per a media report,
Plaintiff commented, “Diversity is fine at IU Northwest with events and programming,”
and “but when it came to core issues of diversity like student retention and graduation,
there are serious concerns.”
23. In the summer of 2018, IU Northwest announced that the Departments of
Fine Arts and Performing Arts would be merged with the Communication Department,
removed from the College of Arts and Sciences (“COAS”) and placed in a new School of
the Arts. IU Northwest hired Klamen, the former Associate Dean of COAS and former
Chair of the Department of Fine Arts and Performing Arts, into the role.
paragraph.
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24. On August 1, 2018 McPhail contacted IU Northwest’s EEO Director,
Aneesah Ali (“Ali”) by phone and by electronic mail and alleged that Klamen was
appointed to the position without a search and without any transparency in violation of
IU’s requirement that it make hiring decisions “based upon [applicants’] individual
qualifications,” as required by UA-01, IU’s Non-Discrimination/Equal
Opportunity/Affirmative Action policy.
ANSWER: Defendants currently are without knowledge or information
sufficient to form a belief regarding contacts between Plaintiff and Aneesah Ali and
therefore deny same. Defendants deny that any concerns allegedly raised in 2018 regarding
the appointment of Klamen affected any employment decisions regarding Plaintiff.
Defendants deny any remaining allegations contained in the foregoing paragraph.
25. The next spring, Bonita Neff (“Neff’) then-Chair of the Communication
Department filed a complaint with the Faculty Board of Review alleging that Klamen’s
appointment violated IU policies.
ANSWER: Defendants admit that Bonita Neff submitted a complaint to the
Faculty Board Review and that such complaint speaks for itself. Defendants admit that at
the time of the complaint, Neff was Chair of the Communication Department at IU
Northwest. Defendants deny any remaining allegations contained in the foregoing
paragraph.
26. Klamen, who was Neff’s direct supervisor, initiated termination
proceedings against her within less than two weeks after her complaint, Román-Lagunas
supported his recommendation, and Iwama made the final decision, rejecting the
recommendation of the Faculty Board of Review.
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ANSWER: Defendants deny this paragraph’s characterization of Neff’s alleged
termination proceedings and only admit that, for reasons unrelated to any complaint
submitted by Neff, Klamen initiated proceedings regarding Neff (whose position at IU
ultimately ended). Defendants admit that Román-Lagunas supported the recommendation
and Iwama made the final decision, not accepting the recommendation of the Faculty Board
of Review. Defendants deny any remaining allegations contained in the foregoing
paragraph.
27. As for McPhail, after he complained about Klamen’s appointment, the
University transferred him to the IU Bloomington for a two-year project. During the 2019-
20 academic year, McPhail began making preparations for his return, and sought course
assignments from Klamen. Klamen was non-responsive, so McPhail sought answers from
Román-Lagunas. Contrary to standard practice, Klamen made unilateral course
assignments nearly four months after McPhail began requesting them and shortly before
the semester was to begin, without even discussing the assignments with McPhail.
ANSWER: Defendants admit that on or about June 18, 2018, with Plaintiff’s
support and consent, Plaintiff was appointed for a one-year term as a Senior Research
Fellow under the direction of James Wimbush, the University’s Vice President for
Diversity, Equity, and Multicultural Affairs and the Dean of the University Graduate
School at the IU Bloomington campus. Defendants admit that Plaintiff was given a release
from teaching during the 2018-2019 academic year to research and author a book (a book
that was not, to Defendants’ knowledge, completed). Defendants are without knowledge
or information sufficient to form a belief as to whether “during the 2019-20 academic year,
Plaintiff began making preparations for his return.” Defendants admit Plaintiff was
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scheduled to return to teaching in the Fall of 2020. Defendants admit that that, at about the
time the pandemic began in March 2020, when University leadership was in the process of
arranging for the University to transition to remote teaching and working on an
unprecedented scale, Plaintiff “sought course assignments from Klamen” and contacted
Román-Lagunas. Defendants further admit that, in preparation for Plaintiff’s return to
teaching and to allow for necessary adjustments to transition to online teaching due to the
pandemic, Plaintiff was given a course release and training. The University admits that
Klamen made course assignments at the appropriate time. Defendants deny the remaining
28. Klamen refused to communicate with McPhail starting on or about March
26, 2020 regarding his teaching assignment for the fall semester despite repeated requests
to the Dean’s representative and the EVCAA.
ANSWER: Defendants deny the allegations contained in the foregoing
paragraph. Defendants admit that Plaintiff made inquiries in March 2020 regarding
teaching assignments for the Fall of 2020. Defendants deny any remaining allegations
29. On July 14, 2020, McPhail filed a charge with the Gary Commission on
Human Relations (“the July 2020 Gary Commission complaint”) alleging that Klamen and
Román-Lagunas refused to assign him courses despite repeated requests because he had
alerted IU that the appointment of David Klamen violated the University’s EEO policy. In
that charge, he alleged that Respondent adopted hiring practices that privileged white
employees in appointment to high-level administrative positions.
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ANSWER: Defendants deny this paragraph’s characterization of the content of
the referenced charge filed with the Gary Commission. Defendants admit that Plaintiff filed
an administrative charge with the Gary Commission on Human Relations that speaks for
itself, which to Defendants’ reasonable belief concerned Plaintiff’s allegations regarding
his course assignments. That administrative charge was filed after Plaintiff had formally
accepted an additional course release to participate in necessary training for the online
teaching. Defendants admit the administrative charge was dismissed. Defendants
otherwise deny the allegations contained in the foregoing paragraph.
30. McPhail taught in the Communication Department during the 2020-21
academic year.
paragraph.
31. In July of 2021, at the first opportunity for formal evaluation following
McPhail’s July 2020 Gary Commission complaint, Klamen issued McPhail a performance
evaluation characterizing his teaching as inadequate. The evaluation relied on criteria such
as McPhail’s “reputation as a teacher,” which Klamen gleaned from unspecified “reports,”
and the contention that McPhail issued failing grades to too many students.
ANSWER: Defendants admit that, in July 2021, Klamen issued Plaintiff a faculty
annual review. The faculty annual review in its entirety speaks for itself and, in certain
respects, mirrors a 2017 faculty evaluation report regarding Plaintiff’s teaching.
Defendants admit that Plaintiff issued failing grades to too many students, an alarming
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number of which were students of color. Defendants deny the remaining allegations
32. McPhail responded to Dean Klamen’s evaluation, providing context for
some of the stated concerns and asking for specifics and guidance. He noted, among other
things, that the students who received failing grades in the course did not submit the work
required, and asked for suggestions about how he could lower the number of failing grades
without lowering standards.
ANSWER: Defendants admit that Plaintiff responded in writing to Klamen’s
evaluation and state that the written response in its entirety speaks for itself. Defendants
admit that Plaintiff reported that students that he failed did not submit required work to
him. Defendants otherwise deny the allegations contained in the foregoing paragraph.
33. Dean Klamen provided none of the clarification McPhail requested and
made no corrections to the report, instead characterizing McPhail’s attempt to defend his
performance as a violation of the Code of Academic Ethics. In response to McPhail’s
contention that the students who received failing grades did not complete the required
work, Klamen responded, “I find it inappropriate that you attempt to shift blame to students
for your own professional shortcomings.” He concluded, “Given that your responses and
desire to shift blame to the student do not mitigate these concerns, I am recommending to
the Executive Vice Chancellor that you teach no classes this upcoming semester.”
ANSWER: The first sentence of the above paragraph calls for speculation
regarding what “clarification McPhail requested” and is therefore denied. Defendants deny
that any “corrections to the report” were warranted or appropriate. Defendants admit that
Klamen’s evaluation of Plaintiff was not altered upon Plaintiff’s request. Defendants state
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that Klamen’s full written response speaks for itself but admit that Plaintiff selectively
quoted from Klamen’s written response. Defendants otherwise deny the allegations
34. The next day, Executive Vice Chancellor Vicki Román-Lagunas concurred
with Dean Klamen’s recommendation, suspended McPhail from teaching for the fall
semester and reduced his salary by 75%. On information and belief, Román-Lagunas made
the final decision on this suspension.
ANSWER: Defendants deny the allegations contained in the foregoing paragraph
as characterized. Defendants admit that following objective data regarding the alarming
rate at which Plaintiff issued failing grades to students, many of whom were students of
color, Plaintiff was not assigned courses, and Plaintiff’s salary was adjusted to be
commensurate with his role.
35. On August 30, 2021 the American Association of University Professors
(“AAUP”) wrote to Iwama expressing concern about the suspension, noting that McPhail
was not provided a hearing before his peers before issuing the sanction.
ANSWER: Defendants admit that the American Association of University
Professors (AAUP) wrote to Iwama regarding its opinion about Plaintiff’s suspension from
teaching. Defendants otherwise state that the referenced letter speaks for itself. Defendants
36. Iwama ignored the AAUP’s letter.
paragraph.
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37. McPhail appealed the decision to the Faculty Board of Review (“FBR”) on
September 13, 2021, alleging that the suspension violated several policies. He alleged that
the decision was in retaliation for his complaints about Klamen’s appointment and his
complaints about racial discrimination and retaliation.
ANSWER: Defendants admit that, on September 13, 2021, Plaintiff appealed the
decision related to the suspension of his teaching assignment to the Faculty Board of
Review (FBR). Plaintiff’s appeal notice entitled “Appeal of Executive Vice Chancellor’s
Administrative Action” makes no reference to any alleged retaliation and complaint of
racial discrimination or harassment. Defendants deny any remaining allegations contained
in the foregoing paragraph.
38. In that September 13, 2021 appeal, McPhail also alleged that by creating a
new School within the College of Arts and Sciences and appointing Klamen as Dean
without any timely consultation with faculty and without creating a search committee, IU
and Román-Lagunas violated the requirements of ACA-79, Merger, Reorganization and
Elimination of Academic Units and Programs Involving Core Schools; BL-ACA-B12,
Search and Screen Procedures for Campus Administrators; and EEO guidelines. He
explained, “The Administration engaged the faculty only after the fact and had created the
School based upon an arrangement between the EVCAA and Dean that clearly violated
EEOC guidelines and ACA-79.”
conclusion regarding an alleged violation of any requirements EEO guidelines, and/or any
policies. Plaintiff’s September 13, 2021 notice of appeal speaks for itself. Defendants
otherwise deny the allegations contained in the foregoing paragraph.
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39. The next day, on September 14, 2021, IU terminated McPhail’s
employment and informed him of the termination in a dramatic and humiliating manner,
by sending police to his home with the termination letter.
ANSWER: Defendants admit that the University terminated Plaintiff’s
employment on September 14, 2021. Defendants deny the remaining allegations contained
40. In the letter, Román-Lagunas cited as the purported reason for the
termination that McPhail made “a threat of physical violence.” She wrote that Iwama had
“been consulted and he agrees that these are exigent circumstances for which dismissal is
warranted.”
ANSWER: Defendants admit that, in the referenced letter, Román-Lagunas cited
Plaintiff’s “threat of physical violence” and wrote that Iwama had “been consulted and he
agrees that these are exigent circumstances for which dismissal is warranted.” Defendants
41. Dumbfounded by this accusation, McPhail asked for further information
about what he was being accused of. IU informed McPhail that he was terminated because
he was reported to have said “words to the effect that ‘the only way to end racism is to kill
all the white people.”’
ANSWER: The University informed Plaintiff that his employment ended and
that he said “words to the effect that ‘the only way to end racism is to kill all the white
people.’” Defendants are without knowledge or information sufficient to form a belief as
to the remaining allegations in the foregoing paragraph and therefore deny same.
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42. McPhail never said words to that effect. Specifically, McPhail did not
threaten to kill any people, nor did he say anything that could reasonably construed as
calling for such a thing. On the contrary, McPhail published scholarship in which he
characterized it as problematic that the catalyst for several significant civil rights victories
was the death of white individuals.
ANSWER: Defendants currently are without information sufficiently to discern
whether “McPhail published scholarship in which he characterized it as problematic that
the catalyst for several significant civil rights victories was the death of white individuals.”
43. When pressed for further details, IU’s Senior Associate General Counsel
Marcia Gonzales wrote,
Prof. McPhail’s statement was reported directly by a very concerned

member of the IUN Community to EVCAA Roman-Lagunas on or
about September 10th and the report was made in confidence.
During this same week, Dean Klamen was also advised
confidentially by a colleague that he should avoid Prof. McPhail for
fear that an ‘incident’ may result and that he should be very
concerned if he were to encounter him in person. . . . [I]n both cases,
each person reported that Prof. McPhail was very angry.
ANSWER: Defendants admit that Plaintiff selectively and partially quoted
correspondence of Marcia Gonzales, Senior Associate Counsel for the University.
44. Neither individual has been identified, nor has McPhail ever been informed
whether there was any objective basis for the fears allegedly expressed to Klamen.
paragraph.
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45. IU also declared McPhail’s appeal of his salary reduction and ban from
teaching as moot.
ANSWER: Defendants admit that, after the separation of Plaintiff’s employment,
the University questioned whether Plaintiff’s appeal of the suspension from teaching in the
fall of 2021 and salary reduction was moot. The appeal, however, proceeded to conclusion.
46. On November 29, 2021, the FBR nonetheless decided the appeal, finding
that the salary reduction and teaching ban failed to adhere to IU’s post-tenure review
policy. The FBR recommended that McPhail’s salary and position be restored.
ANSWER: Defendants admit that the appeal proceeded to conclusion, with an
opinion of the Faculty Board of Review (FBR) issued on or about November 29, 2021.
The opinion and recommendation of the FBR speak for themselves. Defendants otherwise
47. On January 28, 2022, Iwama rejected the FBR’s recommendation and
affirmed McPhail’s salary reduction and teaching ban.
ANSWER: Defendants admit that Iwama properly exercised his authority to
reach a different decision than the FBR’s recommendation. Defendants otherwise deny the
48. McPhail’s appeal of his termination is pending.
paragraph.
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49. On February 5, 2022 McPhail sent certified mail notice of his claims to the
Trustees of Indiana University and to the Indiana Political Subdivision Risk Management
Commission.
paragraph.
50. On April 12, 2022 the AAUP wrote to Iwama again, expressing “grave
concern” about IU’s having terminated the employment of a tenured professor without a
hearing. The AAUP characterized a pre-dismissal hearing as an “indispensable safeguard
to academic freedom” and that failure to provide one “effectively renders tenure all but
meaningless at the university.”
ANSWER: Defendants admit that Plaintiff selectively and partially quoted a
letter from the AAUP on the referenced date which speaks for itself. Defendants otherwise
51. The termination has been devastating to McPhail’s once brilliant career.
McPhail has since applied to many academic and administrative positions and has not
received any offers.
ANSWER: Defendants are without knowledge or information sufficient to form
a belief as to the various allegations contained in the foregoing paragraph and therefore
deny same.
52. As a result of the above-described actions, Plaintiff suffered and continues
to suffer damages that include restricted speech, loss of salary, loss of job opportunities,
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damage to reputation, humiliation, severe emotional distress, litigation expenses, attorney
fees, and other compensatory damages.
paragraph.
Legal Claims
Count I
Breach of Contract
McPhail v. IU
53. Each paragraph of this Complaint is incorporated as if fully restated herein.
ANSWER: As its answer to the foregoing paragraph, Defendants incorporate by
reference its answers to all other paragraphs of Plaintiff’s Complaint.
54. The University’s academic policies (reflected in part by Exhibits A-G)
contain clear promises and mutual obligations. These documents were among the policies
explicitly incorporated into McPhail’s employment contract. Ex. H. At all relevant times,
they were available on IU’s website.
ANSWER: Defendants admit that the University has numerous policies that
speak for themselves. Defendants deny this paragraph to the extent it calls for a legal
conclusion regarding the substance and application of alleged University academic
policies. Defendants otherwise deny the allegations contained in the foregoing paragraph.
55. IU breached its employment contract with McPhail when it removed him
from teaching, reduced his salary by 70%, and terminated his employment.
paragraph.
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56. When McPhail raised concerns about the racial climate on the IU Northwest
campus and procedural violations relating to Klamen’s hire, he was exercising his right as
a professor to “express views on matters having to do with the university and its policies,
and on issues of public interest generally.” Ex. A.
ANSWER: Defendants deny the foregoing paragraph to the extent it calls for a
legal conclusion regarding Plaintiff’s alleged rights as a professor. Defendants are without
knowledge or information sufficient to form a belief as to the generic allegation that
Plaintiff “raised concerns about the racial climate on the IU Northwest campus and
procedural violations related to Klamen’s hire” and therefore the allegations contained in
the foregoing paragraph.
57. IU took the adverse actions described in this Count because of that protected
speech, violating its Academic Freedom Policy. Ex. A.
paragraph. Defendants also deny this paragraph to the extent it calls for a legal conclusion
regarding the substance and application of the referenced Academic Freedom Policy.
58. The adverse actions also violate IU’s Whistleblower Protection Policy,
which prohibits retaliation “against anyone who has made a good faith report of wrongful
conduct.” Ex. B.
paragraph. Defendants also deny this paragraph to the extent it calls for a legal conclusion
regarding the substance and application of the referenced Whistleblower Protection Policy.
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59. IU’s procedural protections prohibit discipline or termination of tenured
faculty members accused of inadequate performance without affording them notice and a
chance to improve. Ex. F at § C; Ex. G ¶¶ 2, 5, 8.
conclusion regarding the substance and application of alleged University procedural
protections. Defendants state that the referenced policies, among others, speak for
themselves. Defendants otherwise deny the allegations contained in the foregoing
paragraph.
60. Prior to reducing McPhail’s salary by 70%, IU did not follow the
requirements of the University’s Faculty and Librarian Annual Reviews policy. Ex. F at
§ C. Specifically, Klamen’s July 2021 review of McPhail’s teaching a) did not provide for
peer review of McPhail’s teaching, and b) was not intended nor used to “facilitate
communication, openness, fairness, and faculty participation in merit-based salary
decisions.” Instead, Klamen raised a number of concerns and then reprimanded McPhail
when he defended himself against some of those concerns and asked for clarification about
others.
ANSWER: Defendants deny that the University violated the referenced policy,
to the extent it was applicable, when it reduced Plaintiff’s salary for the Fall of 2021.
Defendants also deny this paragraph to the extent it calls for a legal conclusion regarding
the substance and application of the referenced Faculty and Librarian Annual Reviews
policy. Defendants deny this paragraph’s allegation that Plaintiff’s salary was reduced by
70% and state that this paragraph calls for speculation as the Complaint elsewhere alleges
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that Plaintiff’s salary was reduced by 75%, see, e.g.,¶ 34. Defendants deny the remaining
61. IU also violated its post-tenure review policy, which provides that reviews
“must be clearly aimed at performance enhancement” rather than as a punishment for
performance inadequacies.” Ex. G p. 1 (emphasis in original).
ANSWER: Defendants deny the allegations in this paragraph. Defendants also
deny this paragraph to the extent it calls for a legal conclusion regarding the substance and
application of the referenced policy. Defendants further state that the referenced policy
speaks for itself.
62. IU is required to develop defined standards of performance, provide faculty
with notice of those standards, and provide a review process following notification of
“persistent substandard performance over at least two or more consecutive annual
reviews.” Ex. G ¶ 5.
conclusion regarding the substance and application of the referenced policy. Defendants
admit that the University develops standards of performance. Defendants deny the
selectively quoted language and reference to Exhibit G, as generically and selectively
presented. Defendants deny all other allegations and inferences contained in the foregoing
paragraph.
63. The review committee which administers that process must consist
exclusively of faculty members, must provide the faculty member with findings as to any
24
deficiencies and then must work with the faculty member to create a development plan. Id.
The faculty member is also afforded the right to appeal during this process. Id.
ANSWER: Defendants deny the referenced policies and process as generically
presented and all other allegations contained in the foregoing paragraph.
64. Defendants did not follow any of these procedural protections before
suspending and terminating McPhail.
ANSWER: Defendants deny the allegations in the above paragraph. Defendants
also deny the reference to “these procedural protections,” as presented in the foregoing
paragraph.
65. IU’s procedural protections also prohibit discipline or termination of
tenured faculty members accused of misconduct without first affording them the right to
defend themselves in a hearing after being apprised of the full details of the accusations
against them. Ex. C at § B(I); Ex. D at § D; Ex. E at § II; Ex. G ¶¶ 2, 5, 9.
ANSWER: Defendants deny the allegations in this paragraph. Defendants also
deny that the actions that it took against Plaintiff were precluded by applicable University
policies and processes. Defendants further deny this paragraph to the extent it calls for a
legal conclusion regarding the substance and application of the alleged procedural
protections referenced in this paragraph. Defendants deny the broad and undefined
66. AC-52 guarantees the faculty member up for dismissal the right to “[a]
statement with reasonable particularity of the ground proposed for the dismissal.” Ex. D
§ D(2). Similarly, the IU Northwest Dismissal Procedures provide that a faculty member
25
to whom formal notice of dismissal proceedings has been issued “is entitled to full access
to all relevant information regarding the case possessed by the dean or other administrative
officers, including the names and location of all witnesses. No information to which the
faculty member or librarian is denied access shall be used by the administration.” Ex. E p.
7.
ANSWER: Defendants deny Plaintiff’s selective citation and recitation of AC-
52 and IU Northwest Dismissal Procedures as presented in the foregoing paragraph.
Defendants deny the applicability of the cited policy and any remaining allegations
67. IU did not provide McPhail with notice of the allegations or evidence
against him, nor an opportunity to defend himself, prior to terminating his employment.
paragraph.
68. The IU Northwest Dismissal Procedures provide for detailed informal and
formal review processes and a hearing prior to termination. Ex. E. § II. Similarly, ACA-
52(D) requires specific notice of grounds for a hearing and a hearing as prerequisites to
termination. Ex. D. IU dispensed with those procedures entirely. Instead, Román-Lagunas
simply issued a letter, copied to Klamen and Iwama, informing McPhail that his
employment was terminated.
ANSWER: Defendants deny Plaintiff’s characterization of the policies
referenced in the above paragraph, which speak for themselves. Defendants deny the
applicability of the procedures and policies set forth in the foregoing paragraph.
26
Defendants admit that Román-Lagunas issued a letter, copied to Klamen and Iwama,
informing Plaintiff that his employment was terminated. Defendants deny any remaining
Count II
Tortious Interference with Contract
Against Iwama, Román-Lagunas and Klamen
in their individual capacities
70. IU and McPhail were parties to a valid and enforceable employment
contract which included the documents attached as Exhibits A-G.
ANSWER: Defendants deny the allegations in this paragraph. Defendants further
state that the University has expressly stated that its academic policies “shall not be
construed to create a contract of employment between Indiana University and persons with
academic appointments.” Defendants deny any remaining allegations contained in the
foregoing paragraph.
71. Iwama, Román-Lagunas and Klamen knew of the existence of this contract.
ANSWER: Defendants deny Plaintiff’s definition of “this contract” and the
remaining allegations contained in the foregoing paragraph. Defendants further deny the
foregoing paragraph to the extent it calls for a legal conclusion regarding the existence of
a contract.
27
72. Iwama, Román-Lagunas and Klamen intentionally induced breach of
McPhail’s employment contract by developing and implementing ad hoc procedures which
were not reflected in IU policies to exclude McPhail from the University.
ANSWER: Defendants deny each allegation in the foregoing paragraph.
Defendants further deny engaging in any alleged wrongful conduct.
73. Iwama, Román-Lagunas and Klamen induced these breaches without
justification.
ANSWER: Defendants deny the allegations in the foregoing paragraph.
74. The actions of Iwama, and Klamen were unauthorized and exceeded the
scope of their authority.
75. The individual defendants’ inducement of a breach caused McPhail to suffer
lost salary and benefits, severe emotional distress, attorneys’ fees, and litigation costs.
ANSWER: Defendants deny the foregoing paragraph. Defendants further deny
engaging in any alleged wrongful conduct.
28
Count III
First Amendment Retaliation
(42 U.S.C. §§ 1983, 1985)
Against all Defendants
77. Plaintiff’s August 1, 2018 and September 13, 2021 speech about
administrative circumvention of faculty and the equal opportunity policy in the
appointment of administrators related to matters of public concern and was protected under
the First Amendment to the U.S. Constitution.
ANSWER: Defendants are without knowledge or information sufficient to form
a belief as to the truth of Plaintiff’s allegation regarding “August 1, 2018 and September
13, 2021 speech about administrative circumvention of faculty in the appointment of
administrator” and therefore deny same. Defendants further deny the foregoing paragraph
to the extent it calls for a legal conclusion regarding what is, and what is not, protected
under the First Amendment to the U.S. Constitution. Subject to and without waiver of the
foregoing, Defendants deny that any they violated any First Amendment Rights and any
remaining allegations in this paragraph.
78. Plaintiff’s speech about the racial dynamics on IU Northwest’s campus
related to matters of public concern and was protected under the First Amendment to the
U.S. Constitution.
ANSWER: Defendants are without knowledge or information sufficient to form a
belief as to the truth of Plaintiff’s allegation of about any “speech about the racial dynamics
29
on IU Northwest’s campus” and therefore deny same. Defendants deny this paragraph to
the extent it calls for a legal conclusion regarding what is, and what is not, protected under
the First Amendment to the U.S. Constitution. Subject to and without waiver of the
foregoing, Defendants deny that any they violated any First Amendment Rights and any
remaining allegations contained in the foregoing paragraph.
79. Plaintiff’s right to voice his concerns outweighed any interest of Iwama,
Román-Lagunas and Klamen in suppressing that speech.
ANSWER: Defendants deny that the identified individuals suppressed any “right
to voice ... concerns” or “speech” and any other allegations contained in the foregoing
paragraph.
80. Acting under the color of law, Román-Lagunas and Klamen used their
authority as EVCAA and Dean to suspend McPhail from teaching and terminate his
employment.
ANSWER: Defendants deny the allegations in this paragraph, and further deny
engaging in any alleged wrongful conduct. Defendants admit that, within the scope of their
roles and employment with the University, Román-Lagunas and Klamen had involvement
in evaluating and recommending Plaintiff’s suspension from teaching for an academic
term. Defendants also admit that Román-Lagunas, within the scope of her role and
employment with the University, was involved in the termination of Plaintiff’s
employment. Defendants otherwise deny the allegations contained in the foregoing
paragraph.
30
81. Román-Lagunas and Klamen took the actions alleged in order to punish
Plaintiff for the protected activity alleged and preclude him from further speech along those
lines.
ANSWER: Defendants deny the “actions alleged” and all remaining allegations
82. In approving the recommendations of Román-Lagunas and Klamen, Iwama
acted with deliberate indifference to Plaintiff’s clearly established right to criticize public
officials and institutions.
Defendants further deny engaging in any alleged wrongful conduct. Defendants also deny
that Iwama at any time acted with indifference to any legal right Plaintiff had to criticize
public officials and institutions. Defendants deny that any recommendations of Román-
Lagunas and Klamen had anything to do with any right Plaintiff had to criticize public
officials and institutions.
83. Plaintiff’s protected speech was a substantial motivating factor in
Defendants’ actions.
ANSWER: Defendants deny that that any alleged “protected speech was a …
motivating factor in Defendants’ actions.” Defendants deny any remaining allegations
84. Were it not for Plaintiff’s protected speech, Defendants would not have
taken the actions alleged herein.
31
Defendants deny that any protected speech had anything to do with decisions made about
Plaintiff’s employment.
85. Plaintiff seeks relief in the form of reinstatement from IU and from Iwama,
Román-Lagunas and Klamen in their official capacities. He seeks monetary damages from
Iwama, Román-Lagunas and Klamen in their individual capacities.
ANSWER: Defendants admit that Plaintiff purports to seek that relief and
damages set forth in the foregoing paragraph. Defendants deny that Plaintiff is entitled
such relief or damages and deny any remaining allegations contained in the foregoing
paragraph.
Count IV
Negligence Per Se
McPhail v. IU
87. On August 1, 2018 McPhail reported to Ali that IU violated state rules by
hiring Klamen without any faculty involvement. Ali copied Román-Lagunas in her
response to that complaint.
ANSWER: Defendants admit that Plaintiff issued a complaint that speaks for
itself. The Defendants deny the remaining allegations contained in the foregoing paragraph.
32
88. On September 13, 2021, McPhail alleged that by creating a new School and
appointing Klamen as Dean without any timely consultation with faculty, IU and Román-
Lagunas violated IU’s EEO policy.
paragraph.
89. IU had a clear statutory duty pursuant to the Academic Whistleblower
Statute, IC 21-39-3, to refrain from disciplining and terminating McPhail for his report of
violations of state law.
ANSWER: Defendants admit that the cited statute speaks for itself and denies all
remaining allegations contained in the foregoing paragraph.
90. IU did not discipline or terminate McPhail’s employment on the claim that
he filed a knowingly false report.
ANSWER: Defendants admit that the University did not discipline Plaintiff or
terminate his employment “on the claim that he filed a knowingly false report.” Defendants
91. Because of McPhail’s August 1, 2018 and September 13, 2021 complaints,
IU reduced his salary, banned him from teaching, and terminated his employment.
ANSWER: Defendants deny that the University suspended Plaintiff from
teaching or terminated Plaintiff’s employment based on his alleged “August 1, 2018 and
September 13, 2021 complaints.” Defendants deny any remaining allegations contained in
33
Count V
Violations of Right to Procedural Due Process
(42 U.S.C. §§ 1983, 1985)
Against all Defendants
93. McPhail had a protected property interest in his tenured position at IU.
ANSWER: Defendants state that Plaintiff’s alleged protected property interest in
his tenured position at the University is a question of law to which no response is required.
To the extent that any response is required, Defendants deny the allegations contained in
94. Before terminating McPhail’s employment, Defendants did not provide him
with oral or written notice of the allegations against him, did not provide him an
explanation of any evidence against him, and did not provide him the opportunity to tell
his side of the story to an impartial decision-maker.
ANSWER: Defendants deny the allegations in this paragraph as characterized by
Plaintiff.
95. In recommending and approving McPhail’s termination, Iwama, Román-
Lagunas and Klamen acted with deliberate indifference to Plaintiff’s rights.
Defendants further deny engaging in any alleged wrongful conduct and deny acting with
indifference to Plaintiff’s alleged rights.
34
96. Plaintiffs pending appeal will not provide a meaningful post-termination
remedy because a) McPhail still has not been provided an explanation of the evidence
against him nor an opportunity to respond to that evidence by presenting his side of the
story and b) Iwama has authority to accept or reject the recommendation of the Faculty
Board of Review, so the post-termination appeal will therefore not be decided by an
impartial decisionmaker.
ANSWER: Defendants deny the allegations contained in this paragraph.
paragraph.
Count VI
Race Discrimination
Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1983, 1985
Against All Defendants
99. IU terminated McPhail’s employment on the purported basis that he
threatened to commit genocide against white people.
35
ANSWER: Defendants admit that the University terminated Plaintiff’s
employment following the determination that he made a threat of violence that posed a
safety risk and violated University policy. Defendants otherwise deny the allegations
100. McPhail’s research on race and racism has focused on reconciliation and
racial justice, and he has never said or suggested that anyone should kill white people.
ANSWER: Defendants deny the contention that Plaintiff “never said or
suggested that anyone should kill white people.” Defendants are without knowledge or
information sufficient to form a belief as to the remaining allegations in the above
paragraph and therefore deny same.
101. Defendants relied on stereotypes of black men as irrationally angry and
violent to exile McPhail from the University permanently.
paragraph.
102. McPhail’s race was a motivating factor in Defendants’ decision to discharge
him.
paragraph.
36
paragraph.
Count VII
Retaliation for Allegations of Employment Discrimination
Civil Rights Act of 1866, 42 U.S.C. § 1981, 1983, 1985
Against All Defendants
105. Plaintiff engaged in statutorily protected activity by filing the July 2020
Gary Commission complaint.
ANSWER: Defendants deny this allegation because it calls for a legal
conclusion regarding whether or not Plaintiff engaged in a statutorily protected activity.
Defendants only admit that Plaintiff filed a complaint with the Gary Commission.
Defendants deny the remaining allegations contained in the foregoing paragraph.
106. Pursuant to McPhail’s first employment evaluation following that
complaint, Klamen and Román-Lagunas reduced McPhail’s salary by 70% and terminated
his employment shortly thereafter.
ANSWER: Defendants admit that, in 2021, the University made the decision to
reduce Plaintiff’s salary in an amount commensurate with his role and not to assign
teaching responsibilities. Defendants deny all other allegations and inferences contained
37
107. Defendants would not have taken these adverse actions were it not for
Plaintiff’s complaint.
ANSWER: Defendants deny that any adverse actions were taken against Plaintiff
because of any “complaint.” Defendants deny any other allegations and inferenced
paragraph.
WHEREFORE Plaintiff respectfully requests the following relief:
1. Reinstatement to his tenured position (against IU and the individual
defendants in their official capacities);
2. Compensation for lost salary;
3. Prejudgment interest;
4. Emotional distress damages;
5. Punitive damages (against the individual defendants in their personal
capacities);
6. Attorney’s fees;
7. Litigation expenses; and
8. Such other relief as law and justice allow.
38
ANSWER: Defendants admit that Plaintiff purports to seek that relief and damages
set forth in the foregoing “Wherefore” paragraph. Defendants deny that Plaintiff is entitled
paragraph.
REQUEST FOR TRIAL BY JURY
Plaintiff hereby requests a trial by jury with respect to any issues so triable.
RESPONSE: Defendants admit that Plaintiff has requested a jury trial. Whether
Plaintiff is entitled to a jury trial is a question of law to which no responsive pleading is
required. Answering further, Defendants specifically object to Plaintiff’s jury request to
the extent Plaintiff’s claims are equitable or otherwise not properly heard by a jury.
Defendants deny any remaining allegations set forth in the foregoing paragraph.
AFFIRMATIVE DEFENSES
1. Plaintiff fails to set forth claims upon which relief may be granted.
2. The conduct and actions of involved Defendants were taken with justification and
in accordance with policy interests to protect and safeguard the university population from
the express or implied threat of violence and from actions that endangered others in the
university community.
3. Subject to a reasonable opportunity to conduct discovery, some or all of Plaintiff’s
claims may be barred by the applicable statutes of limitations.
4. Plaintiff has failed to exhaust administrative remedies.
5. The conduct and actions of Defendants were taken in good faith and/or Defendants
had reasonable grounds for believing that this conduct and actions were not a violation of
39
any applicable law.
claims may be barred or limited by the doctrine of after-acquired evidence.
7. Subject to a reasonable opportunity to conduct discovery, Plaintiff failed to mitigate
his damages.
8. Plaintiff’s claims for damages are barred or limited by the U.S. Constitution, and/or
any other relevant statute, law, or regulation. Specifically, and for example, Plaintiff’s
claims are barred by the Eleventh Amendment of the U.S. Constitution.
claims may be barred by the doctrines of waiver, estoppel (including judicial estoppel),
unclean hands, and/or laches.
10. To the extent that an answer or response may be required which is not set forth
herein, Defendants generally deny any allegations contained within Plaintiff’s Complaint
not expressly admitted.
WHEREFORE, Defendants respectfully request that Plaintiff take nothing by way of his
Complaint, that judgment be entered in Defendants’ favor and against Plaintiff, that Defendants
be awarded their costs and expenses in defending this action, and that Defendants be awarded all
other just and proper relief.
40
Respectfully submitted,
BARNES & THORNBURG LLP
/s/ Kathleen M. Anderson

Kathleen M. Anderson (#16351-92)
Kathleen.Anderson@btlaw.com
888 South Harrison Street, Suite 600
Fort Wayne, IN 46802
Telephone: (260) 423-9440
Facsimile: (260) 424-8316
V. Chisara Ezie-Boncoeur (#37251-71)

cezie@btlaw.com
201 S. Main Street
South Bend, IN 46204
Telephone: 574-233-1171
Facsimile: 574-237-1125
ATTORNEYS FOR DEFENDANTS
CERTIFICATE OF SERVICE
On this 27th day of June, 2022, a copy of the foregoing was electronically filed with the
Clerk of Court using the CM/ECF and counsel of record will receive notification.
/s/Kathleen M. Anderson
Kathleen M. Anderson
41

Indiana University Responds To Lawsuit From Professor Phil McPhail

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Indiana University Responds To Lawsuit From Professor Phil McPhail

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USDC IN/ND case 2:22-cv-00137-TLS-APR document 13 filed 06/27/22 page 1 of 41

UNITED STATES DISTRICT COURT

DEFENDANTS’ ANSWER TO PLAINTIFF’S

Defendants Trustees of Indiana University (the “University”), Ken Iwama (“Iwama”),

Vicki Román-Lagunas (“Román-Lagunas”), and David Klamen (“Klamen”) answer Plaintiff’s

by Defendants’ corresponding answers.

1. On August 1, 2015 IU hired Mark McPhail, an African-American professor of

Northwest’s Department of Communication. McPhail resigned from the administrative

position in 2016 and assumed a faculty position.

University Northwest campus and for a tenured appointment as Professor of

Communication. Defendants admit that Plaintiff’s appointment began in August 2015.

University accepted Plaintiff’s second tendered resignation notice. Defendants deny

as a member of the Department of Communication faculty until the Fall of 2017.

held a forum in which he said IU Northwest’s campus climate contributed to racial

he appealed, Defendants terminated his employment abruptly and without a hearing,

substantially damaging if not ending his career.

knowledge or information sufficient to form a belief as to whether Plaintiff said, “IU’s

Defendants deny the remaining allegations contained in the foregoing paragraph.

violation of IC 21-39-3 (“the Academic Whistleblower Statute”), violation of the Due

Process Clause of the Fourteenth Amendment, and discrimination and retaliation as

prohibited by the Civil Rights Act of 1866.

2015 to September 2021. Defendants are without knowledge or information sufficient to

Defendants deny any remaining allegations contained in the foregoing paragraph.

ANSWER: Defendants admit the University employed Román-Lagunas and

deny any remaining allegations contained in the foregoing paragraph.

as the chief administrative officer of the IU Northwest campus.

ANSWER: Defendants admit the allegations contained in the foregoing

21, Article 20 of the Indiana Code.

ANSWER: Defendants admit the allegations contained in the foregoing

Jurisdiction, Venue & Cause of Action

allegations contained in the foregoing paragraph.

ANSWER: Defendants do not contest this federal court’s jurisdiction over

of Massachusetts. Thereafter, he served in several faculty and academic administrative

in the foregoing paragraph regarding the University of Massachusetts is true. Upon

academic conferences. Defendants are without knowledge or information sufficient to

therefore deny same.

(“EVCAA”) as well as a tenured Professor of Communication. Exhibit H, attached hereto.

and tenured Professor of Communication. Defendants deny any remaining allegations

contained in the foregoing paragraph.

Tenure Committee reviewed McPhail’s record of teaching, research and administrative

ANSWER: Defendants admit that, in 2015, the then-Communication Department

Committee reportedly reviewed available information regarding Plaintiff’s teaching,

allegations contained in the foregoing paragraph.

and procedural employment rights, including those reflected in Exhibits A through G to

conclusion regarding the existence of substantive and procedural employment rights.

Defendants are without knowledge or information sufficient to form a belief as to the

ANSWER: Defendants admit that Exhibit A is a copy of the University’s

contained in the foregoing paragraph.

04, IU’s Whistleblower Protection Policy. Ex. B.

ANSWER: Defendants admit that Exhibit B is a copy of the University’s

deny the allegations contained in the foregoing paragraph.

imposition of discipline and termination. Exs. C-G.

conclusion regarding the existence of “several procedural protections as prerequisites to

contained in the foregoing paragraph.

his attempts to implement certain IU policies.

ANSWER: Defendants admit that Plaintiff’s appointment as EVCAA began in

August 2015. Defendants admit that, by virtue of Plaintiff’s voluntary resignation,

deny the allegations contained in the foregoing paragraph.

that of Professor of Communication.

ANSWER: Defendants admit that, in 2017 (after an extended paid leave of

Defendants otherwise deny the allegations contained in the foregoing paragraph.

EVCAA. Defendants deny any remaining allegations contained in the foregoing

promise at IU Northwest.” The forum highlighted challenges faced by black students at IU