Case 1:23-cv-00032-DAO Document 2 Filed 03/20/23 PageID.

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Michael W. Young, USB #12282

Lauren M. Hunt, USB #14682
PARSONS BEHLE & LATIMER
201 South Main Street, Suite 1800
Salt Lake City, Utah 84111
Telephone: 801.532.1234
Facsimile: 801.536.6111
MYoung@parsonsbehle.com
LHunt@parsonsbehle.com

Attorneys for Plaintiff Gregory Noel

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, NORTHERN DIVISION

GREGORY NOEL, COMPLAINT AND JURY DEMAND

Plaintiff, Case No. 1:23-cv-00032-DAO

vs. Magistrate Judge Daphne A. Oberg

UTAH STATE UNIVERSITY, and JOHN and

JANE DOES 1-10,

Defendant.

Plaintiff Gregory Noel (“Greg”), by and through his attorneys of record, pleads and

alleges against Defendant Utah State University (“USU”), as follows:

SUMMARY OF CASE

This is a case in which faculty and staff of the Utah State University repeatedly racially

discriminated against a black Haitian American student, Gregory Noel.

On one occasion, after having a normal outburst from having lost schoolwork due to a

computer error, the Director of USU’s Marriage and Family Therapy (“MFT”) Program asked

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Greg if his outburst was him “going full Haitian”; described him as a “violent” threat to his

family and others; and demanded that Greg attend therapy to continue in the MFT Program.

On another occasion, the Director of USU’s MFT Program drew a “coon” caricature of

Greg on a classroom board, while in class, in front of Greg’s classmates. Classmates took

pictures of the whole incident. Greg reported this incident to USU’s Office of Equity.

The Office of Equity made every excuse for, gave greater credence to, and supported in

every way the Director of USU’s MFT Program throughout the investigation. Greg, on the other

hand, was second-guessed and unaided throughout the investigation. In fact, the Office of Equity

refused to interview Greg’s witnesses and then refused to aid Greg in ensuring their presence at

the hearing. Greg made several complaints about the investigators and the investigation, and he

was ignored. Despite these setbacks, the Office of Equity found that “there is a preponderance of

the evidence that the offensive caricature [the Director of USU’s MFT Program] drew was

intended to depict [Greg] and the exaggerated features were included based on [Greg’s] race

and/or color” which were “sufficiently severe or pervasive to alter the conditions of the student’s

education and create an abusive learning environment[.]” The Office of Equity recommended

that the Director of USU’s MFT Program be given a written reprimand.

Then, for a year, USU refused to update Greg on the matter. Greg was told that any

communications with him might give the appearance of being biased. At the same time, the

Provost of USU was having personal discussions about the matter with the Director of USU’s

MFT Program. After these personal discussions and despite the Office of Equity’s findings,

USU’s Provost determined that the written reprimand against the Director was not warranted.

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In summary, the Director of USU’s MFT Program drew a “coon” caricature of Greg in

class. After an unjust investigation and unequitable hearing, the Office of Equity slapped the

Director on the wrist with a written reprimand. However, shortly thereafter, the Provost of USU

scrubbed the Director clean of any wrongdoing following personal discussions on the matter

without any input or say from Greg. USU has repeatedly and intentionally, directly and

indirectly, racially discriminated against Greg in violation of Title VI and § 1981.

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff Gregory Noel was at all relevant times a resident of the State of Utah.

2. USU is an institution of higher education located in Logan, Utah.

3. At all relevant times, USU received Federal financial assistance and was therefore

subject to the requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.

(“Title VI”).

4. Jurisdiction is appropriate in this Court pursuant to 28 U.S.C. § 1331 because

Plaintiff alleges claims against USU under Title VI.

5. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391 because

Defendant resides in the State of Utah and the events or omissions giving rise to Plaintiff’s

claims occurred in the State of Utah.

GENERAL ALLEGATIONS

6. In 2020, USU reportedly received approximately $292,631,129 – i.e., 37% of its

institutional funding – from Federal appropriation, contracts, and grants.1

1
Utah State Fast Facts, UTAH STATE UNIVERSITY (last visited on Sept. 4, 2022),
https://www.usu.edu/about/fast-facts/.

3
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7. The enrolled student population at USU is 82.6% White, 6.21% Hispanic or

Latino, 2.38% Two or More Races, 1.48% American Indian or Alaska Native, 1.26% Asian,

0.856% Black or African American, and 0.267% Native Hawaiian or Other Pacific Islanders.2

This includes both full-time and part-time students as well as graduate and undergraduates.

Institutional Betrayal and the Exacerbation of Trauma

8. Emerging research shows that the way in which institutions respond to traumatic

events experienced by individuals can profoundly affect such individuals. Where an institution

betrays an individual’s trust, e.g., by responding to a claim of discrimination, an individual will

likely experience enhanced psychological distress.3

9. Researchers have previously observed that interpersonal trauma perpetrated

within a close relationship is more harmful than interpersonal trauma perpetrated by a stranger.4

Accordingly, betrayal trauma is associated with higher rates of several outcomes including post-

traumatic stress disorder, anxiety, depression, and borderline personality disorder.5

2
Utah State University, DATA USA (Sept. 4, 2022), https://datausa.io/profile/university/utah-
state-university#enrollment.
3
See generally, Carly Parnitzke Smith & Jennifer J. Freyd, Institutional Betrayal, 69 American
Psychologist 575 (September 2014). While institutional betrayal has been traditionally reviewed
in the context of sexual assault, institutional betrayal is increasingly being studied in the context
of racial discrimination and believed to have the same effects on victims of racial discrimination.
Jennifer M. Gomez & Jennifer J. Freyd, Institutional betrayal makes violence more toxic, THE
REGISTER-GUARD (Aug. 22, 2014),
https://www.registerguard.com/story/opinion/2014/08/22/institutional-betrayal-makes-violence-
more/11760306007/; see e.g., Jennifer M. Gomez, Microaggressions and the Enduring Mental
Health Disparity: Black Americans at Risk for Institutional Betrayal, 41(2) JOURNAL OF BLACK
PSYCHOLOGY 121–143 (2015).
4
Smith & Freyd, supra note 3, at 577 (citing Freyd, J. J., Betrayal Trauma: The Logic of
Forgetting Childhood Abuse, Cambridge, MA: Harvard University Press (1996)).
5
Id. (citing Freyd, J. J., & Birrell, P. J. Blind to Betrayal, New York, NY: Wiley (2013)).

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10. When a victim reaches out to an institution for help in the wake of a traumatic

experience, victims place a great deal of trust with that institution.

11. Institutional betrayal is a form of betrayal trauma that occurs where an institution

has violated an individual’s trust in a way that exacerbates the impact of a victim’s traumatic

experience.6

12. As a form of betrayal trauma, institutional betrayal is also associated with a

number of complex outcomes similar to those experienced by victims of interpersonal trauma.7

“When measured directly, the exacerbative effects of institutional betrayal on psychological

well-being are clear and consistent with betrayal trauma theory: higher rates of disassociation,

anxiety, and other trauma related outcomes.”8

Title VI and its Requirements

13. Title VI mandates that “[n]o person in the United States shall, on the ground of

race, color, or national origin, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial

assistance.”9

14. An institution may be liable for civil penalties if it has not upheld its legal

obligations under Title VI.

15. An institution like USU may be liable for violating Title VI where the institution

acts with deliberate indifference to known acts of harassment in its programs or activities.

6
Id.
7
See Simba Runyowa, Microaggressions Matter, THE ATLANTIC (Sept. 18, 2015),
https://www.theatlantic.com/politics/archive/2015/09/microaggressions-matter/406090/.
8
Smith & Freyd, supra note 3, at 577–78.
9
42 U.S.C. § 2000d.

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a) Deliberate Indifference under Title VI

16. “Deliberate indifference to known acts of harassment . . . amounts to an

intentional violation of Title IX, capable of supporting a private damages action.”10

17. This includes harassment both by the school itself and by other students, as long

as “the funding recipient has some control over the alleged harassment.”11

18. The Tenth Circuit has interpreted Supreme Court precedent to create a four-factor

test for liability for deliberate indifference. A plaintiff “must allege that the [institution] (1) had

actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe,

pervasive and objectively offensive that it (4) deprived the victim of access to the educational

benefits or opportunities provided by the school.”12

19. Deliberate indifference may be demonstrated by a school’s “respond[ing] to

known . . . harassment in a manner that is clearly unreasonable.”13

20. Whether a response is “clearly unreasonable” is a question of fact and is intended

to be flexible.14

21. Nevertheless, where a university “knowingly refuse[s] to take any action in

response to the behavior, such as investigating or putting an end to the harassment, or refuse[s] to

10
Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643 (1999) (citing
Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274 (1998)).
11
Id. at 644.
12
Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1246 (10th Cir. 1999) (citing Davis,
526 U.S. at 643).
13
Davis, 526 U.S. at 649.
14
Id.

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take action to bring the recipient institution into compliance,” the school has demonstrated

deliberate indifference giving rise to liability.15

22. A school “intentionally subject[s] students to harassment” when it “deliberately

decide[s] not to take remedial action.”16

23. Severity can also be established by a single incident. “The more severe the

conduct, the less need there is to show a repetitive series of incidents to prove a hostile

environment, particularly if the harassment is physical. Indeed, a single or isolated incident of

sexual harassment may create a hostile environment if the incident is sufficiently severe.”

USU Student Code

24. The Student Code describes the relationship between students and a university as

“contractual.”17

25. The Student Code states that “[s]tudents can reasonably expect” “[t]he right to a

learning environment free of harassment and unlawful discrimination” as well as “[t]he right to

due process in all academic integrity and disciplinary proceedings, which means fundamental

and procedural fairness in accordance with the provisions of this Student Code.18

USU’s Personnel Policies

26. Pursuant to Policy 305, the USU provides that “Utah State University is

committed to providing an environment free from harassment and other forms of discrimination

based on race, color, religion, sex, gender identity or expression, sexual orientation, national

15
Papelino v. Albany College of Pharmacy of Union Univ., 633 F.3d 81, 90 (2d Cir. 2011)
(internal punctuation omitted) (quoting Davis, 526 U.S. at 651, 654; Gebser, 524 U.S. at 290).
16
Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1178 (10th Cir. 2007) (emphasis in
original) (citing Davis, 524 U.S. at 290).
17
See Utah State University’s Code of Policies and Procedures for Students, Article I.
18
See Utah State University’s Code of Policies and Procedures for Students.

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origin, age (40 and older), disability, or status as a protected veteran.”19 “Employees and students

also cannot discriminate in the classroom, residential halls, or in on/off-campus University

sponsored events and activities.”20

27. “Any Utah State University… student who feels he or she may have been the

victim of discrimination in … academic-related practices and decisions… may file a Complaint

with the Equity Office within 180 calendar days of the last alleged occurrence.”21

28. At the conclusion of the investigation, “[f]or faculty, the Provost… will follow the

procedure for imposing sanctions (refer to USU policy 407).”22

29. “Both the Complainant and Respondent has the right to file a written appeal,

outlining the specific issues, facts, or circumstances being appealed, to the Equity Office within

ten (10) calendar days of the announcement of the outcome of the AA/EO inquiry/investigation.

The Equity Director or Title IX Coordinator will forward the written appeal and the finding to

the President. The President will select a review panel from the Affirmative Action Advisory

Council (AAAC).”23 “The President will review the recommendations of the AAAC and may

accept or modify them. The decision of the President is final.”24

30. Pursuant to Policy 407, USU provides that “[i]f a faculty member believes that the

reprimand has been unjustly imposed, he or she may request a review of the reprimand by the

Academic Freedom and Tenure Committee. Such request must be made in writing to the chair of

19
USU’s Personnel Policies, Policy 305: Discrimination Complaints (Feb. 10, 2020),
https://www.usu.edu/policies/305/.
20
Id.
21
Id.
22
Id.
23
Id.
24
Id.

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the committee within 20 days after the faculty member receives the reprimand. Within 20 days of

receipt of a written request for review, the chair of the Academic Freedom and Tenure

Committee shall select by lot and convene a special panel of three members of the Academic

Freedom and Tenure Committee (see Policy 402.12.3(2)). The panel shall provide the faculty

member with the opportunity to submit a detailed written statement if he or she desires. The

panel shall decide whether the facts merit a reprimand hearing. Submission of a request for

review does not automatically result in a reprimand hearing.”25

31. Policy 407 provides: “The panel may seek to bring about a settlement of the

matter with the consent of all parties involved. If settlement is not possible or appropriate within

20 days after the panel is convened, the panel will decide whether or not to hold a hearing on the

matter.”26

32. Policy 407 also provides: “The reprimand hearing will occur within 10 days after

the review of the reprimand by the panel. The hearing will be informal but will provide the

faculty member and those imposing the reprimand with the rights to be present, to be heard, and

to present evidence. Within 10 days after the hearing, the panel will report its findings and

recommendations in writing to the faculty member and to those imposing the reprimand. If the

panel determines that the written reprimand is unjust or otherwise inappropriate, such sanction

shall be rescinded by those who imposed it and removed from the faculty member’s file.”27

33. Pursuant to Policy 331, USU provides that an “employee of the University may,

at any time, challenge any factual statement or entry of factual data in his/her personnel files on

25
USU’s Personnel Policies, Policy 407: Academic Due Process: Sanctions and Hearing
Procedures (May 1, 2015), https://www.usu.edu/policies/407/.
26
Id.
27
Id.

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the grounds that it is inaccurate, misleading, inappropriate, or otherwise in violation of his/her

individual rights. Challenges shall be submitted in writing to the Director of the Office of Human

Resources, who shall promptly review the facts and supporting data and seek to resolve the

challenge. Upon recommendation from the Director of the Office of Human Resources, the

appropriate dean or vice president may authorize the Director to make necessary changes in,

deletions from, or additions to the personnel files to assure that the files include only factual,

truthful, and relevant information. The employee shall be advised in writing of all approved

modifications.”28

34. At all relevant times, USU’s personnel, including Plaintiff’s professor, were

subject to the provisions of the USU Personnel Policies (“Personnel Policies”).

Plaintiff George Noel

35. George Noel (“Greg”) is a black, first-generation college student, Haitian-

American male, who was a graduate student of USU’s Graduate Marriage and Family Therapy

Program (“MFT Program”) between 2018 and 2020.

The Director

36. This individual was, at all relevant times, the Director of the MFT Program and a

Professor for the MFT Program.

37. The director was an employee of USU.

38. In his role and capacity as Director and Professor of the MFT Program, The

director acted on behalf of USU and/or USU’s MFT Program.

28
USU’s Personnel Policies, Policy 331: Personnel Files (December 14, 2001),
https://www.usu.edu/policies/331/.

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39. USU exercised significant control over the director’s curriculum and classroom,

including to but not limited to the standards set forth in USU’s Personnel and Faculty Policies.

The Professor

40. Another individual (“the professor”) was, at all relevant times, a Professor for the

MFT Program.

41. The professor was an employee of USU.

42. In his role and capacity as a Professor of the MFT Program, he acted on behalf of

USU and/or USU’s MFT Program.

43. USU exercised significant control over the professor’s curriculum and classroom,

including to but not limited to the standards set forth in USU’s Personnel and Faculty Policies.

MFT Program Director Mandated Therapy for Greg

44. Sometime in October 2018, Greg was working on a school assignment in a private

study room at USU when the computer that he was working on lost four pages of his assignment.

45. Out of frustration, Greg used profane words and pushed a rolling chair aside. The

rolling chair did not collide with anything, and no one else was in the room with Greg.

46. Days later, the director invited Greg to a meeting with the professor and himself

to discuss the incident.

47. One week after the incident, Greg met privately with the director and professor.

48. At this meeting, the director and professor expressed concern that Greg would be

“violent towards others” and/or “violent towards his wife.”

49. The director also asked Greg: “Was that [incident] you going full Haitian?”

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50. The director told Greg that – if he wanted to stay in the MFT Program – Greg

needed to engage in therapy with multiple therapists to get his anger “under control.”

51. Greg acquiesced and signed up to obtain therapy from USU’s Counseling and

Psychological Services (CAPS).

52. Days later, the director followed up with Greg to ensure that Greg obtained

additional therapy from non-USU CAPS providers to address his so-called anger issues. The

conversation went as follows:

Director: Can you please give me an update on your therapy? Did

you find out about your insurance as we know good therapists in
Ogden you could see. I don’t think waiting for USU CAPS is in
your best interest.

Greg: I am currently covered under my wife's insurance that is

provided by her employer, I am not sure if mental health services
is apart [sic] of our benefits. I will check with her and follow up
with you. You're right, other than my initial consultation I haven't
heard back from CAPS.

Greg: I found out from my wife our insurance does cover about
80% of a mental health visit, please feel free to provide me the
contact info for the therapist you know in the Ogden area who will
be fairly affordable co-pay wise.

Director: What is the name of the insurance?

Greg: [Redacted] is the name of our insurance provider.

Greg: I wanted to let know you that CAPS finally reached out to
me, I am scheduled for therapy on Monday Feb 4th at 11:30am.

Director: Okay, also see if there is a list of mental health

providers in Ogden to see if that might work also? Have a great
long weekend.

Greg: Thank you [Respondent] and you as well.

Emails between Director and Greg.

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MFT Program Director and Professor Draws “Coon” Caricature of Greg in Class

53. On January 20, 2020, the director drew a racially inflammatory “coon” caricature

of Greg on the director’s computer during class.

54. The caricature was displayed on the classroom board where the students could see

the “coon” caricature of Greg.

55. The image depicted an individual with dark skin, a hairstyle like George’s, and

exaggerated features.

56. A student took a picture of the drawing and shared it by text message with the

other students in class:

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Title VI Investigation

57. On March 20, 2020, Greg filed a written report against the director to USU’s

Affirmative Action and Equal Opportunity office (“AAEO Office” or “Office of Equity”).

58. On March 25, 2020, Greg entered into a “Formal Investigation Agreement” with

the Office of Equity. In relevant part, the Formal Investigation Agreement provides as follows:

I am requesting that the Office of Equity proceed with a formal

investigation in my … discrimination matter.

I understand that the formal investigation process requires (read

and check each box):

The Office of Equity must share my name and the allegations I am

making with Respondent.

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I must participate and communicate with the Office of Equity

investigator.

I may be required to participate in an appeals process.

I can have an advisor and/or support person present during the

Office of Equity process.

I can present evidence and/or witnesses relevant to the allegation.

I may qualify for supportive measures through the Office of

Equity.

USU’s Office of Equity Formal Investigation Agreement with Greg, dated March 25, 2020.

59. At all relevant times, Michael Barrett was a Senior Equity Investigator for the

Office of Equity. In his role and capacity as Senior Equity Investigator, Mr. Barrett acted on

behalf of USU. Mr. Barrett signed the investigative reports.

60. Greg identified witnesses for the Office of Equity to interview.

61. The director also identified witnesses for the Office of Equity to interview.

62. Barrett, however, only interviewed people identified by the director: Greg’s

Advisor and Chair, who reports to the director; Greg’s classmate, who is supervised by the

director; and Greg’s therapist.

63. On July 1, 2020, the Office of Equity issued its Draft Report of Investigation and

Findings.

64. According to USU policy 305.4.3.2, both parties had ten days to respond to the

Draft Report.

65. The following day, on July 2, 2020, Greg filed his written response. In his

response, Greg made clear that the Office of Equity’s treatment of him during the investigation

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was discriminatory against him as a black complainant of racial discrimination and was unfairly

beneficial to USU’s personnel.

66. On July 16, 2020, the director filed his written response.

67. Following the written responses, the Office of Equity interviewed two additional

witnesses, i.e., two of Greg’s classmates, who at the time were supervised by the director in their

off-campus practicum.

Title VI Hearing #1

68. At the first hearing, the director called a woman as a character witness.

69. Greg did not call any witnesses.

Title VI Hearing #2

70. At the second hearing, Greg called a fellow student to testify as a witness. This

student testified to racial discrimination and gender identify discrimination by the director.

Result of Title VI Investigation and Hearings

71. On August 26, 2020, the Office of Equity issued its Final Report of Investigation

and Findings.

72. Therein, the Office of Equity found that, while “Respondent vehemently denies

any intent to depict Complainant,” “there is a preponderance of the evidence that the offensive

caricature Respondent drew was intended to depict Complainant and the exaggerated features

were included based on Complainant’s race and/or color.”

73. “Additionally, the photograph of this caricature shows unambiguously that the

image was viewable to students in class, whether intentionally or incidentally displayed.

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Therefore, the Office of Equity finds that Respondent subjected Complainant to unwelcome

conduct based on his race and/or color.”

74. In terms of whether this “isolated incident” was “sufficiently severe or pervasive

to alter the conditions of the student’s education and create an abusive learning environment,”

the Office of Equity found as follows:

It is not disputed that Respondent drew the image only one time.
However, the drawing closely resembles a caricature known as the
“coon” caricature and is “the most insulting of all anti-black
caricatures.” Additionally, Respondent, Complainant’s professor
and director of the program, drew this image in class. It is also
undisputed that it was shared with the class and discussed by the
students in the MFT program. Therefore, the Office of Equity finds
that there is a preponderance of the evidence that this image
created a hostile environment for Complainant and the final
element is met.

75. The Office of Equity concluded that “there IS a preponderance of the evidence to

support Complainant’s claims of hostile environment discrimination, but that there IS NOT a

preponderance of evidence to support a finding of adverse action discrimination based on race

and/or color. The facts in the record, viewed in their entirety, indicate there is a preponderance of

evidence Responded violated USU policy 303 and 305, with regard to an isolated incident. This

concludes the investigation by the Office of Equity.” (emphasis in original).

76. According to USU Policy 305, Greg and the director had 10 days to appeal the

Final Report of Investigation and Findings.

77. On August 26, 2020, Greg filed a Written Response to the Final Report.

78. On August 28, 2020, Ms. Adams followed up with Greg on his Written Response.

79. On August 31, 2020, Ms. Adams notified Greg of his deadlines to request a

second interview, request for additional witness interviews, request to submit new information,

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and appeal. On September 1, 2020, Greg responded by forwarding Ms. Adam’s email to USU’s

President Noelle Cockett and Dean Beth Foley and by stating that he was “developing a deep

sense of mistrust in the Office of Equity due to the manner in which they are choosing to demean

my traumatic experience while I was under the tutelage of [the director] from 2018-2020.” Greg

requested the opportunity to be interviewed along with meeting with other individuals.

80. On September 3, 2020, Ms. Adams responded to the email chain, described

above, with only a reminder to Greg to submit his written statement, a list of witnesses, and an

appeal before the deadline.

81. On September 4, 2020, USU’s President Noelle Cockett responded to Greg,

stating: “While I note your concerns regarding Ms. Adams and Mr. Barrett, I cannot intervene

while there is an ongoing grievance process. Please know I hear your concerns about the

additional work that is required and am sorry that you feel the process has been cumbersome at

times. After the grievance process has concluded, there will be an opportunity to discuss this

further and put forth recommendations for improving the process.”

Appeal to Title VI Final Report

82. On September 5, 2020, Greg appealed the decision.

83. On September 28, 2020, Ms. Adams notified Greg that the appeal would not be

heard until “mid-November” because of “very recent changes to federal regulations and training

requirements laid out by the Department of Education and the Department of Justice.” In

response, on September 29, 2020, Greg expressed his frustrations with the investigation with Ms.

Adams and asked her to encourage USU to select a diverse panel for his appeal hearing

consisting of BIPOC (i.e., Black, Indigenous, People of Color) panelists. On October 16, 2020,

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Ms. Adams denied Greg’s request. On October 19, 2020, Greg raised the matter with USU’s

President Cockett, adjoining Ms. Adams’ email.

84. On October 27, 2020, Ms. Adams notified Greg that the appointed panelists for

his appeal hearing were Kathy Chudoba, Christopher Gonzalez, and Rachel Richards. On

October 30, 2020, Greg objected to these individuals on the basis that they were not a diverse

panel.

85. On November 10, 2020, Mr. Joshua MacLeod, on behalf of USU’s Affirmative

Action Advisory Council, reached out to Greg to “consider[] alternative resolutions” “through

USU’s “informal resolution process.”

86. Between December 2 and 3, 2020, Greg corresponded with Mr. Joshua MacLeod,

disputing the Appeal Panel’s decision to not hear his witnesses.

87. On January 5, 2021, Greg received a Final Pre-Hearing Ruling.

88. On January 7, 2021, Greg submitted his Response to the Final Pre-Hearing

Rulings. Therein, Greg objected to the Office of Equity’s decision to exclude his five witnesses,

provided questions for the director’s witnesses, objected to the director’s stated witnesses’

participation as witnesses given their lack of knowledge, and requested permission to include a

fellow student witness for having first-hand knowledge of the 2018 incident.

89. On January 11, 2021, the Appeal Panel held a hearing. The Appeal Panel

consisted of Katherin Chudoba, Chris Gonzalez, and Rachel Richards.

90. On January 15, 2021, the Office of Equity issued a Post-Hearing Notice. Therein,

the Office of Equity requested that witnesses provide written responses by January 22, 2021,

stated that the witnesses’ responses would be produced to the parties on January 25, 2021, and

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requested that the parties submit to the Appeal Panel their closing arguments by January 27,

2021, at 5:00 P.M.

91. On January 18, 2021, Greg emailed Mario Arango and Timothy Overton his

grievances regarding the Post-Hearing Notice.

92. On January 27, 2021, at 8:59 P.M., Greg submitted his written closing argument,

with the following message: “Attached below is my closing statement for the hearing panel, I

apologize for the late response I had some personal matters that I had to attend to. Please inform

me if my statement will not be admitted since I am still submitting it today, although it is past the

time deadline.”

93. The following day, Mr. Arango (a Hearing Officer for the Office of Equity)

responded to Greg: “[Y]our submission is untimely. I understand you had personal matter to

attend to. To determine whether good cause exits to extend the submission deadline, please

provide me with additional details and evidence regarding the reasons for your delayed

submission. Please provide this information as soon as possible, but no later than 12:00 pm,

January 29, 2020.”

94. That same day, Greg provided details about the extenuating circumstances that

caused him to submit his closing arguments late.

95. Days later, on February 3, 2021, Mr. Arango asked Greg – on behalf of the

Appeal Panel – when he “access[ed] and/or view[ed]” The director’s closing argument and “to

what extent you used [the director’s] closing submission… to inform your closing submission.”

96. That same day, Greg responded that he had never accessed or viewed the

director’s closing submission as “I did not know I could review the Respondent’s closing

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submission, and I did not receive a message from the Office of Equity informing me that

documents associated with this proceeding were/are available.” And, Greg confirmed that the

director’s closing submission “had zero bearing on my closing statement.”

97. On March 18, 2021, Greg followed-up with Mr. Arango, requesting information

regarding the outcome of the proceedings.

98. The following day, on March 19, 2021, Mr. Arango responded:

Thank you for reaching out. As you are likely aware, I am not an
employee of the university. I am an assistant attorney general for
the state of Utah. My role within the university as it pertains to
Office of Equity matters to that of a Hearing Officer. I am not
involved in the decision-making process of the panel.

Notwithstanding, I have reached out to the university requesting an

update on this matter. I will let you know once I have heard back
regarding the statue of this matter.

Email from Mr. Arango (dated March 19, 2021).

99. On April 1, 2021, Greg followed-up again with Mr. Arango, and Mr. Arango

responded, in relevant part, as follows: “University counsel… informed me that the matter was

still with the panel and he was awaiting their written decision. I will reach back out to see if he

has heard anything further. If Ms. Adams knows of any additional developments, I am sure she

will supplement this communications accordingly.”

100. That same day, Ms. Adams responded: “With the parties, I am awaiting the

hearing panel’s decision. I expect that we will all be notified simultaneously (within a few

minutes of each other) when a decision has been reached.”

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101. On April 14, 2021, Mr. Arango emailed Greg to “ask if you’ve heard anything

further on this matter. Please let me know if you have not. I will reach out to the University on

your behalf once again if that is the case.”

102. That same day, Greg responded that he had not “receive[d] any sort of update or

follow-up regarding this matter from the hearing panel. Yes please feel free to reachout [sic] to

them again on my behalf to see where they are at in terms of providing an official closing

decision regarding this matter.”

103. Greg did not receive any communications, updates, or follow-ups after this

exchange with Mr. Arango.

104. Despite his several requests for updates, Greg went a year without hearing from

USU or the Office of Equity.

105. One year later, on May 16, 2022, Greg received an email from Matthew Pinner,

titled “20191775 Memorandum enclosure and case closure,” stating in its entirety:

Mr. Noel,

Attached please find correspondence to [the director] from Provost

Galey withdrawing the written reprimand issued on January 14,
2022.

We will now proceed to close this matter. If you have any

questions, please let me know.

Thank you,

Matt Pinner

Email from Matt Pinner to Greg, dated May 16, 2022.

USU’s Provost Withdraws the director’s Written Reprimand

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106. On May 5, 2022, Mr. Francis D. Galey, then Provost of USU, withdrew the

director’s Written Reprimand from his personnel file.

107. That same day, the Provost wrote a Memorandum to the director regarding the

same. The Memorandum states, in relevant part, as follows:

As a result of a grievance process carried out pursuant to USU

Policy 305, you were found responsible by a preponderance of
evidence for violating USU’s policies prohibiting racial
discrimination. Based on this finding and pursuant to USU Policy
407, on behalf of and in consultation with the Dean of the College
of Education and the Department Head for Human Development
and Family Studies, I imposed a Written Warning as a sanction for
this policy violation.

Exercising your procedural rights under USU Policy 407, you

requested a meeting regarding the reprimand and when we were
unable to reach an agreement on the imposition of sanction, you
then requested a review of the reprimand by the Academic
Freedom and Tenure Committee.

Following a short hearing on the matter, on March 14, 2022, the

AFT committee panel issued its decision, concluding that the
written reprimand was unjust and must be removed from your
personnel file. In reaching this decision, the AFT committee panel
took issue with, among other things, the Office of Equity’s finding
that it was more likely than not (a preponderance of evidence) that
your drawing a caricature of a black student was sufficiently severe
or pervasive to alter the condition of the student’s education and
create an abusive learning environment. While I disagree with the
panel’s conclusion, I will respect and honor the process and,
consistent with the panel’s March 14 decision, hereby withdraw
the Written Reprimand issued on January 14, 2022.

USU’s Provost Memorandum to the director, dated May 5, 2020.

FIRST CAUSE OF ACTION

Deliberate Indifference Under Title VI

108. Plaintiff incorporates and realleges the allegations of each of the preceding

paragraphs as if fully set forth herein.

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109. As set forth above, from October 2018 and continuing forward, USU had actual

knowledge of the racial discrimination perpetrated against Greg.

110. Indeed, the director, the professor, Ms. Adams, Mr. Arango, Mr. Galey, Ms.

Cockett, and Ms. Foley were representatives and/or agents of USU.

111. The director and the professor directly perpetrated racial discrimination and

harassment against Greg in October 2018, and the director directly perpetrated racial

discrimination and harassment against Greg in January 2020.

112. USU exercised control over the director in his role and capacity as Director of the

MFT Program. Any policies and/or requirements that the director imposed on students on behalf

of the MFT Program were governed by USU’s Policies – including any mandatory therapy that

he assigned onto any student to remain in the MFT Program.

113. USU exercised control over the director in his role and capacity as Professor of

the MFT Program. The director’s curriculum and classroom environment were governed by

USU’s Policies – including the director did and displayed in the classroom.

114. USU exercised control over the professor in his role and capacity as Professor of

the MFT Program. The professor had a duty to report any witnessed racial discrimination and

harassment pursuant to USU’s Policies – including the following instances: Witnessing the MFT

Program Director singling out the only black male student for a minor and normal outburst;

making racially-charged statements to that same black male student such as asking him if he

went “full Haitian”; and requiring the same singled-out black male student to obtain therapy to

remain in the MFT Program.

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115. USU exercised control over the Office of Equity and its investigation into Greg’s

complaint (i.e., an investigation that was carried out in a discriminatory manner against Greg).

The Office of Equity and its investigations are governed by USU’s Policies.

116. USU exercised control over the Appeals Panel and its handling of Greg’s

complaints. The Appeals Panel and its hearings are governed by USU’s Policies.

117. USU exercised control over the Academic Freedom and Tenure Committee (AFT

Committee) and its handling of the director’s appeal. The AFT Committee is governed by USU’s

Policies.

118. USU exercised control over the Gayle in his role and capacity as Provost of USU.

The conduct of the Provost is governed by USU’s Policies.

119. USU’s discriminatory “investigation” was hardly investigative, gave every

opportunity and benefit of the doubt to the bad actors, biased protect its faculty and personnel,

and took nearly two years.

120. USU put the burden on Greg to secure the attendance of the witnesses and put a

limit on the witnesses that Greg was allowed to present.

121. In fact, despite complaints of the investigation and hearings, Greg was told to file

formal complaints – without any direction or assistance.

122. Next, despite numerous other similar claims from other students, the Office of

Equity only found the Director and Professor of the MFT Program’s drawing of a “coon”

caricature sufficiently severe or pervasive to alter the condition of Greg’s education and create an

abusive learning environment.

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123. Still, the Office of Equity found it appropriate to only issue the Director of the

MFT Program a written reprimand for his racist actions.

124. Despite numerous requests for updates, Greg went a year without any contact or

updates about the proceedings.

125. Without any notice or warning, the AFT Committee then reviewed the director’s

written reprimand without any consideration or input from Greg and in violation of Title VI.

126. In fact, the AFT Committee “took issue” with the Office of Equity’s finding that

the Director and Professor of the MFT Program “drawing a caricature of a black student was

sufficiently severe or pervasive to alter the condition of the student’s education and create an

abusive learning environment.”

127. To be abundantly clear, the AFT Committee believed that the Director and

Professor of the MFT Program drawing a “coon” caricature of a black male student, in class, in

front of a classroom full of students (i.e., Greg’s peers), was not sufficiently severe or pervasive

to alter the condition of the student’s education and create an abusive learning environment and,

accordingly, withdrew the written reprimand from the director’s personnel files — without any

input from Greg.

128. Then, the Provost “disagree[d]” with the AFT Committee’s conclusion and yet

chose to “honor and respect” the AFT Committee’s decision to withdraw the director’s written

reprimand from his personnel files and did so.

129. The Provost also had “conversations” with the director “regarding this matter”

where the director allegedly “repeatedly expressed a commitment to diversity, equity, inclusion

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and accessibility” — without any input from or conversation with Greg and in contradiction to

USU’s obligations under Title VI.

130. In fact, USU refused to discuss with, or even update, Greg on the matter.

131. The Provost also emptily stated in his Memorandum that “USU [] expects faculty

member to participate in university-sponsored trainings and learning opportunities related to

promoting respectful and equitable learning environments.”

132. The Provost “encourage[d]” the director to “seek out [additional] training and

education for your own personal and professional development.”

133. The Provost added that USU “expects” the director to “thoughtfully consider this

matter and take any and all remedial action to ensure your [sic] that your classroom and learning

spaces are welcoming, respectful, and inclusive.”

134. The director was “slapped on the wrist” and then scrubbed clean from any

evidence of wrongdoing.

135. Meanwhile, Greg was institutionally betrayed repeatedly, and was deprived of any

meaningful remedy under Title VI, as USU did everything in its power to protect its own to the

extent of excluding Greg from the AFT Committee and Provost decision-making.

136. USU had notice of a certain and obvious risk that its faculty was racially

discriminating and harassing its students since at least 2018.

137. Despite this certain and obvious risk, USU failed to adequately address it.

138. Instead, USU perpetuated a hostile environment of racial discrimination and

harassment.

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139. Thus, USU has “a policy of deliberate indifference to providing adequate training

or guidance that is obviously necessary for implementation of a specific program or policy of the

recipient.”29

140. As a result of 1) USU’s failure to respond in a reasonable manner to known racial

discrimination and harassment of Plaintiff, 2) its deliberate and discriminatory misapplication of

law and proper policies to Plaintiff’s matter, and 3) its failure to adequately train on the certain

and obvious risk of discrimination and harassment, USU acted in deliberate indifference and

Plaintiff was deprived of educational benefits and opportunities provided by the school.

141. Greg’s grades suffered dramatically initially, and he had to work exceedingly hard

to get on track.

142. Greg did not feel safe at campus, supported in his learning environment, had to

avoid taking certain courses, was precluded from school events due to concerns of running into

key figures of the MFT Program, and was alienated from the support of the MFT Program’s

Director and professors.

143. Greg could not avoid taking certain classes because the director was the only

instructor for them; accordingly, Greg was subjected to further damage and exposure to this

professor by having to encounter him necessarily through required courses.

144. USU was deliberately indifferent to binding law and policies, improperly and

illegally denied Plaintiff a hearing, and acted clearly unreasonably.

145. USU was deliberately indifferent to a certain and obvious risk of its faculty’s

discrimination and harassment.

29
Simpson, 500 F.3d 1170, 1178 (10th Cir. 2007).

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146. Plaintiff has been proximately and directly harmed as a result of USU’s actions

and has specifically suffered damages as a result of USU’s deliberate indifference, including but

not limited to mental and emotional distress, medical expenses, and lost educational

opportunities.

PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against Defendant as follows:

1. For judgment in Plaintiff’s favor and against Defendant for USU’s deliberate

indifference as prohibited by Title VI;

2. For an award of compensatory damages in favor of Plaintiff and against

Defendant USU in an amount to be determined at trial;

3. For an award of special damages in favor of Plaintiff and against Defendant USU

for expenses arising out of USU’s violations of Title VI, including but not limited to medical and

therapy expenses, and the cost of tuition and other school fees paid by Plaintiff during semesters

in which USU’s actions denied Plaintiff the benefits of the school’s education programs;

4. For injunctive relief, in the form of USU reinstating the written reprimand onto

the director’s personnel files;

5. For compensatory and consequential damages;

6. For an award of reasonable attorneys’ fees and costs associated with this action;

7. For an award of post-judgment interest as allowed by law;

8. For such other and further relief as the Court may deem just.

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JURY DEMAND

Plaintiff demands a trial by jury on all causes of action.

DATED March 20, 2023.

/s/ Michael W. Young

Michael W. Young
Lauren M. Hunt
PARSONS BEHLE & LATIMER

Attorneys for Plaintiff Gregory Noel

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