Flor v. University of New Mexico Board of Regents, 1:20-cv-00027

Background

Plaintiff Nick Vincent Flor, a tenured Associate Professor at UNM Anderson School of Management, exchanged sexual/flirtatious messages with graduate student Eva Chavez; Chavez later sent threatening texts and both parties filed competing OEO complaints.
An independent investigator (FitzSimons) prepared a report and invited responses; he was later replaced by OEO investigator Sara Cliffe, who issued a Preliminary and then a Final Letter of Determination finding Flor violated university sexual‑harassment and anti‑retaliation policies.
Flor requested many witnesses and evidence review; Cliffe did not interview the witnesses Flor proposed and Flor alleges OEO refused to consider some exculpatory material.
Department Chair Dr. Rogers recommended corrective training only; Senior administrators (including Angela Catena and Senior Vice Provost Rodriguez) removed Rogers for alleged conflict, appointed Camille Carey as sanctioning party, and Carey (with Dean approval) imposed a one‑year unpaid suspension plus outside‑employment and publication restrictions.
Flor appealed to the President and then the Board of Regents (which declined review); he sought review by the University Peer Review Committee, which upheld the sanction; Flor sued alleging procedural due process violations (federal and state), breach of contract, and breach of the implied covenant of good faith and fair dealing.
Court procedural disposition: UNM and individual defendants moved to partially dismiss; the court dismissed Counts I (procedural due process), II (injunctive relief), III (declaratory relief), V (breach of contract), and VI (implied covenant) without prejudice, allowed substitution of Board of Regents for UNM, and granted leave to amend.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Flor stated a §1983 procedural‑due‑process claim against individual defendants for pre‑deprivation process	Flor says investigators and administrators denied him a formal hearing, ability to cross‑examine, present witnesses, review evidence, and consider exculpatory proof	Defendants argue Flor failed to plead specific, individual acts causing constitutional deprivation and that he received required pre‑deprivation process	Court: Dismissed due process damages claims (Count I) without prejudice; alleged notice, explanation of evidence, and opportunity to respond satisfied Loudermill pre‑deprivation requirements
Whether approval of OEO findings or departure from university policy itself gives rise to a constitutional due process claim	Flor contends Catena’s review/removal actions and approval of Cliffe’s findings violated policy and due process	Defendants assert that violation of internal university procedures alone does not equal a constitutional violation	Court: Rejected that departures from C07 alone establish a federal due process violation; must show constitutional process was denied
Whether sanction severity (suspension + restrictions) amounted to de facto termination requiring additional due process	Flor argues the sanction functionally terminates/evades tenure protections and was imposed without required hearing protections	Defendants contend process provided (pre‑deprivation notice/explanation/response and post‑deprivation appeals) was sufficient even if sanction severe	Court: Held pre‑deprivation process alleged was adequate even for termination‑level claims; no sufficient §1983 claim against Carey for sanction severity
Whether breach of contract and implied covenant claims against UNM survive	Flor alleges express employment/tenure contracts and that investigatory/disciplinary proceedings breached implied fairness covenant	Defendants note UNM (regents) is the proper suable entity and challenge pleadings	Court: Dismissed Counts V and VI against named University defendant (UNM) as improper entity; allowed amendment to substitute Board of Regents and to replead

Key Cases Cited

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (sets minimum pretermination due‑process protections for public employees)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for federal pleadings)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must be plausible, not merely possible)
Riggins v. Goodman, 572 F.3d 1101 (10th Cir. 2009) (Loudermill elements described for pre‑deprivation process)
Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504 (10th Cir. 1998) (post‑termination hearing includes right to counsel and cross‑examination in full proceedings)
Pahls v. Thomas, 718 F.3d 1210 (10th Cir. 2013) (§1983 liability requires identification of specific actions by each defendant)
Atencio v. Bd. of Educ., 658 F.2d 774 (10th Cir. 1981) (agency’s disregard of internal rules amounts to a constitutional claim only when the procedure itself impinges due process)
West v. Grand Cty., 967 F.2d 362 (10th Cir. 1992) (a full evidentiary hearing not required before adverse employment action)
Gorsuch, Ltd. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230 (10th Cir. 2014) (Rule 16 good‑cause standard for modifying scheduling orders)
Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006) (courts may take judicial notice of public records on Rule 12 motions)