This matter is before the Court on the cross Motions for Summary Judgment
I. FACTUAL BACKGROUND
This lawsuit arises out of the termination of Plaintiff's position of tenured professor by the Board of Supervisors ("the Board")
Plaintiff joined the faculty of LSU in 1995 and was promoted to Associate Professor with tenure in 2001.
In mid-November 2013, Ed Cancienne ("Cancienne"), Superintendent of the Iberville Parish Schools District, complained about Plaintiff's "professionalism and her behavior" during her visits to schools in his district while she was overseeing the PK-3 program.
After Cancienne and Plaintiff spoke on the phone about this incident, Cancienne called Curry to complain that he had been advised that, while Plaintiff was at an Iberville school to assess a PK-3 program student teacher, Plaintiff referred to Cancienne as "crazy", "talked awful about our schools," and used the word "pussy three times."
Student complaints also formed the basis of the investigation into Plaintiff's conduct. Curry testified that two of Plaintiff's students requested a meeting to discuss their complaints about Plaintiff's classroom behavior. Student 1 claimed she was offended by Plaintiff's comments about Student 1's sexual relationship with her fiancé. Student 1 stated that she was humiliated by Plaintiff's references to her sexual relationship in front of her classmates. According to Student 1:
Dr. Buchanan had offered them condoms, had told them it was unacceptable to become pregnant. And that if you chose to become a mother, that your grades would suffer for that. She told them ... enjoy the sex while the sex is-good. If you're dating-if you're dating, make sure the sex is good, something along those lines.24
Student 1 was also particularly offended when, after having advised Plaintiff that her fiancé was very supportive, Plaintiff allegedly responded, "yeah, he's supportive now while the sex is good, but just wait until you're married five years."
Student 1 also reported to Curry that Plaintiff had recorded a student (Student 2) crying during an assessment team meeting and played the recording back for the student.
... during her assessment team meeting, [the student] began to cry. She said that Dr. Buchanan was yelling at her. And that when she started to cry, Dr. Buchanan got out her cell phone and did not ask her, but started to record her crying and then played it back for her, she said, look at yourself, look at yourself, you need to check yourself in somewhere and get help, get a break.28
Curry further testified that Student 2 reported that this meeting was "mortifying,"
Terry [Plaintiff] was extremely aggressive during this assessment team meeting. She said every time she tried to talk, Terry would say, shut up, you're not listening, be quiet, be quiet, like screaming at her, very aggressive. She said it was more than intimidating. Like she felt attacked, fearful. 30
Plaintiff claims that no administrator met with her to discuss these allegations, and they never disclosed to her these student complaints.
Curry reported the student complaints to Dean Andrew who subsequently met with Dr. Earl Cheek ("Dr. Cheek"), Director of the College of Education, regarding same. Curry testified that Dr. Cheek advised that between ten and twelve students had come to his office and reported similar complaints about Plaintiff's behavior and her "talking about sex."
The Investigation
Dean Andrew instructed Curry to gather all information regarding prior complaints, and, while in the process of doing this, Curry was contacted by Cancienne, who advised that Plaintiff was no longer authorized to be on any Iberville Parish school campus.
Donnelly confirmed that Reinoso accurately reported that Plaintiff typically makes comments about sex because "that is how she is."
On December 20, 2013, Plaintiff was informed by Dean Andrew that she was being removed from the classroom for the Spring 2014 semester while multiple issues were investigated by the Human Resources Department.
On May 26, 2014, Plaintiff received a memorandum from Reinoso finding her "actions and behavior" to be "inappropriate, unwelcome, and a direct violation of the University's Policy Statements on Sexual Harassment, PS-73 and PS-95."
Plaintiff challenges Reinoso's findings, arguing that his report failed to differentiate general allegations against her versus those that constituted harassment. Plaintiff further contends Reinoso's deposition testimony clarified that several allegations against Plaintiff did not support a finding that Plaintiff violated LSU's sexual harassment policy. Plaintiff claims that Reinoso's deposition testimony confirms that only the following allegations supported his finding that she violated the sexual harassment policy: (1) Plaintiff's remark to a student about birth control and condoms; (2) Plaintiff's remark to a student that her fiancé was only supportive now because "the sex is good"; (3) the use of profanity in certain contexts; and (4) the allegation that Plaintiff referenced her own sex life in class after she went through a divorce. Plaintiff contends these allegations do not meet the standard of severe, pervasive, or objectively offensive such that she should have been terminated.
Plaintiff claims she was not provided with Reinoso's report, which was endorsed by Monaco and then discussed amongst Reinoso, Monaco, and Dean Andrew, but was only given a shorter, condensed memorandum of findings that did not detail specific allegations against her or identify witnesses.
In reaction to Plaintiff's response, on June 17, 2014, Dean Andrew advised Plaintiff, in writing, as follows:
I find this explanation to be unacceptable, and I do not condone any practices where sexual language and profanity areused when educating students, particularly those who are being educated to serve as PK-3 professionals. As a PK-3 faculty member, you are expected to set a good example for your students in the profession, and receiving bans from multiple school districts as a result of your inappropriate behavior dоes little to support legitimacy in the classroom. 63
Andrew's correspondence further advised Plaintiff that he was considering pursuing dismissal "for cause" proceedings under LSU policy PS-104.
Plaintiff contends she responded to Dean Andrew on July 1, 2014, advising that she had to contend with "vague and indefinite charges," and that, "[b]efore listening to the context or intention underlying my actions," Dean Andrew at the Human Resources Management team had drawn unfair conclusions that denied her "due process" and resulted in her loss of a promotion.
Despite her response, Plaintiff claims she was informed of Dean Andrews' July 14, 2014 recommendation to Provost Stuart Bell that she be dismissed for cause from LSU ten days later on July 24, 2014.
Plaintiff alleges she wrote to Provost Bell on August 3, 2014 to reiterate due process concerns and to explain how the complained-of speech was part of her pedagogical strategy:
"[Profanity] is part of the common vernacular even among very young children today, and teacher-education students need to be aware that they will be confronted with that language and professionally decide how they will respond. I have never had a student tell me that it was offensive or that they were uncomfortable with my language."69
Plaintiff further claims that she:
informed Bell that she utilizes humor to help student teachers recognize their "own feelings regarding dress and sexuality" to prepare them for their future interactions with "children from family backgrounds that are different from their own" and their responsibility "for establishing and maintaining effective and reciprocal relationships with all families."70
Subsequently, Provost Bell impaneled a faculty committee to conduct an evidentiary hearing to determine whether Plaintiff had violated LSU's policies and/or federal law. Plaintiff acknowledges she was notified of her right, and did in fact exercise her right, to object to any individuals nominated to serve on this committee.
Procedural Due Process
Plaintiff contends committee members were not provided with materials or training on how to conduct the hearing or how to interpret the sexual harassment standards set forth in PS-73 and PS-95.
The Faculty Committee Findings & Recommendation
On March 20, 2015, although the committee found insufficient findings to establish an ADA violation,
Notwithstanding the committee's recommendation, on April 2, 2015, President/Chancellor Alexander notified Plaintiff he intended to recommend her dismissal for cause and for violations of LSU's policies and violation of the ADA.
Plaintiff appealed Alexander's initial recommendation and requested an opportunity to address the Board.
Plaintiff has acknowledged that LSU Policy PS-73 defines sexual harassment as:
speech and/or conduct of a sexually discriminatory nature, which was neither welcomed nor encouraged, which would be so offensive to a reasonable person as to create an abusive working or learning environment and/or impair his/her performance on the job or in the classroom.97
Plaintiff further acknowledged that LSU's policy on sexual harassment of students, PS-95 defines sexual harassment as follows:
unwelcome verbal, visual, or physical behavior of a sexual nature." It includes quid pro quo harassment and hostile environment harassment, which "has the purpose or effect of unreasonably interfering with an individual's academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment.98
Nevertheless, from Plaintiff's selective reference to the policies, she argues that LSU had begun interpreting these policies to mirror what the U.S. Departments of Education and Justice have called "a blueprint for colleges and universities" which defines sexual harassment broadly; however, neither LSU policy nor the "blueprint" implements the standards of Title VII which require actionable sexual harassment to be severe, pervasive, and objectively offensive. Plaintiff also claims that the Board was not provided with the hearing transcript and exhibits but was instead only given a few items selected by Monaco, including a legal memorandum addressing the constitutionality of LSU's anti-sexual harassment policy.
On June 19, 2015, Plaintiff was dismissed by the Board. Plaintiff contends that, in response to hеr termination, the LSU Faculty Senate adopted a resolution to censure Alexander, Dean Andrew, and Provost Bell, which stated: "great universities have in place three significant measures to ensure the continued observance of academic freedom: Tenure; faculty governance; and due process;" and "all three measures have been violated in the case of Associate Professor Teresa Buchanan."
Plaintiff filed this lawsuit asserting claims pursuant to
II. LAW AND ANALYSIS
A. Summary Judgment Standard
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Notably, "[a] genuine issue of material fact exists, 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' "
B. Eleventh Amendment Sovereign Immunity
Defendants contend that the Eleventh Amendment sovereign immunity bars suits against them in their official capacities because "a suit against a state official in his or hеr official capacity is not a suit against the official but rather a suit against the official's office."
"The Eleventh Amendment to the United States Constitution bars suits in federal court by citizens of a state against their own state or a state agency or department."
C. Prescription
Defendants Andrew, Reinoso and Monaco contend all claims against them are subject to dismissal because they are time-barred. The Supreme Court has held that the appropriate statute of limitations to be applied in all Section 1983 actions is the forum state's statute of limitations governing personal injury actions.
Defendants rely on the decision in van Heerden v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College wherein the court held that a plaintiff could not use the continuing violation theory for alleged acts of First Amendment retaliation.
As the Fifth Circuit has noted, though, "courts, including this one, are wary to use the continuing violation doctrine tosave claims outside the area of Title VII discrimination cases." McGregor v. Louisiana State Univ. Bd. of Sup'rs , , 866 n.27 (5th Cir.1993). The Supreme Court has held that discrete discriminatory acts constitute separate, actionable instances of unlawful discrimination such that the continuing violation theоry is inapplicable. Nat'l R.R. Passenger Corp. v. Morgan , 3 F.3d 850 [ 536 U.S. 101 , 122 S.Ct. 2061 ] (2002). Further, as the Court held in Rutan v. Republican Party of Illinois , 153 L.Ed.2d 106 [ 497 U.S. 62 , 110 S.Ct. 2729 ] (1990), the First Amendment provides state employees with an actionable First Amendment retaliation case for "even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights." 111 L.Ed.2d 52 [ 497 U.S. at 76 , n.8] (internal quotations and citations omitted). Because Rutan recognizes that instances of retaliation for exercising First Amendment rights are almost always actionable, they almost always constitute discrete acts which do not admit of aggregation for purposes of pressing a continuing violation argument. See, e.g., O'Connor v. City of Newark , 110 S.Ct. 2729 (3d Cir.2006) (disallowing aggregation of discrete retaliatory acts for purposes of statute of limitations when actions related to § 1983 First Amendment retaliation claim). Van Heerden has cited no provision of law to the contrary. Van Heerden cannot combine separate, discrete instances of First Amendment retaliation into a continuing violation for purposes of his § 1983 claims. 440 F.3d 125 123
Defendant Andrew notes that Plaintiff makes no allegations against him beyond July 14, 2014, the date she alleges that Dean Andrew recommended her dismissal for cause to Provost Bell.
The Court agrees that the First Amendment claims brought against Dean Andrew, Reinoso, and Monaco are prescribed.
D. Final Decision-Makers
Defendants also move for summary judgment on the grounds that they were not the final decision-makers who terminated Plaintiff's employment. Defendants note that only the Board is authorized to terminate employees, and Defendants maintain that, since none of them actually terminated Plaintiff, her claims against the Defendants individually must be dismissеd. In support of this argument, Defendants rely on the Fifth Circuit's decision in Culbertson v. Lykos , where the court held that, at the time, "[i]t was unsettled...whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983."
The decision in Powers v. Northside Independent School District
Woods challenged the sufficiency of these allegations and argued that such allegations were not actionable because they did not constitute "adverse employment actions" under Section 1983.
Defendants cite Beattie v. Madison County School District ,(5th Cir.2001) (en banc). In Beattie , the Fifth Circuit considered the individual liability of Acton, a school principal, and Jones, a school superintendent, who allegedly retaliated against Beattie for exercising her right to free speech by recommending her termination to the school board. 254 F.3d 595 . In its discussion affirming summary judgment in favor of Acton and Jones, the Beattie court stated Acton and Jones "did not fire Beattie directly, but merely recommended her termination to the board, which made the final decision. If Acton and Jones did not cause the adverse employment action, they cannot be liable under § 1983, no matter how unconstitutional their motives." 254 F.3d at 604-05Id. at 605 . Here, because only the Board of Trustees had the power to terminate Plaintiffs under Texas law, Defendants claim Beattie controls, and therefore that Plaintiffs have failed to state a § 1983 claim against Woods. See Mot. Dismiss [# 23] at 10.
The Fifth Circuit, however, recently cast doubt upon Defendants' interpretation of Beattie in Culbertson v. Lykos ,(5th Cir.2015). In Culbertson , two contractors whose company provided breath-alcohol testing services for Harris County brought a § 1983 claim against the Harris County assistant district attorney (ADA) in her individual capacity, alleging First Amendment retaliatory termination. 790 F.3d 608 Id. at 614, 625 . The contractors alleged after they spoke out regarding the unreliability of certain breath-alcohol testing equipment, the ADA pressured the Harris County Commissioners Court, the relevant decision-making body, to terminate their contract with Harris County. Seeid. at 621 . Considering whether the contractors stated a claim against the ADA in her individual capacity, the Culbertson court discussed Beattie in detail, noting that "some later decisions ... have interpreted Beattie to hold that only final decision-makers may be held liable for First Amendment retaliation under § 1983."Id. at 626 (internal quotation omitted).
The Culbertson court reviewed the facts of Beattie , noting in particular that the board "fired Beattie for permissible, constitutional motives independently of Acton's and Jones's recommendation" and that those permissible motives were a "superseding cause" which "shield[ed] [Acton and Jones] from liability."Id. at 625 (quoting Beattie ). In short, Acton and Jones's unproven retaliatory motives were "displaced by other motives."Id.
...
The Culbertson court then pointed to Jett v. Dallas Independent School District ,, 758 (5th Cir.1986), a pre- Beattie decision which required only that a plaintiff show "an affirmative causal link" between the individual actor's conduct and the adverse employment action taken by the decision maker for individual liability to attach. Culbertson , 798 F.2d 748 (quoting Jett, 790 F.3d at 626798 F.2d at 758 ). The Jett court explicitly rejected the individual defendant's "contention that the judgment as to him must be reversed because ... he had only recommending authority." Jett ,. Acknowledging the "tension" between Jett and the later decisions interpreting Beattie to hold that 798 F.2d at 758only final decision makers may be held liable for First Amendment retaliation under § 1983, the Culbertson court concluded:
It can at least be said that before [the ADA] could be individually liable despite not being the final decision-maker, it must be shown that her recommendation was made in retaliation for constitutionally protected speech and was the reason the adverse employment decision was made by the final decision-maker. A "superseding cause" would shield [the ADA] from liability.
Culbertson ,. 790 F.3d at 626
Following Culbertson , the Court finds as Plaintiffs have alleged Woods "effected the termination of [their] employment by Board action," they have adequately stated a § 1983 claim for First Amendment retaliation against Woods.139
While the Powers court agreed that the plaintiffs had adequately pled a First Amendment retaliation claim against Woods, the court next addressed the asserted defense of qualified immunity and held as follows:
Defendants argue Plaintiffs' § 1983 claim against Woods must nevertheless be dismissed because Woods is entitled to qualified immunity for his conduct. The Court agrees. Qualified immunity requires a court to "determine whether the plaintiff has suffered a violation of his constitutional rights and, if so, whether a reasonablе official should have known that he was violating the plaintiff's constitutional rights." Culbertson ,(quoting Murray v. Earle , 790 F.3d at 627, 285 (5th Cir. 2005) ). Confronted with the question whether the ADA was entitled to qualified immunity despite its holding the plaintiffs stated a claim against her, the Culbertson court found as follows: 405 F.3d 278
We have already noted ambiguity as to the liability of a person for recommending an adverse employment decision.... It was unsettled at the time of [the ADA's] actions, and remains so now, whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983. Cf. Beattie ,, 604-05 ; Jett , 254 F.3d at 595.... In fact, some clear statements in the caselaw have held there can be no liability. 798 F.2d at 758
We conclude the claims against [the ADA] should be dismissed based on qualified immunity.
Id. (additional citations omitted). In light of the foregoing analysis and the Culbertson court's statement the law in this area remains unsettled, the Court finds Plaintiffs' claims against Woods should be dismissed based on qualified immunity.140
The district court for the Southern District of Texas recently interpreted and applied Culbertson in Sims v. Covington.
The threshold and fundamental problem is recent, clear Fifth Circuit precedent that forecloses Sims's claim. In Culbertson v. Lykos ,(5th Cir. 2015), the court held that, as of 2015, "[i]t was unsettled...whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983." 790 F.3d 608
Id. at 627 . Because when Covington allegedly acted, "the law was not clearly established that a mere recommendation of termination to a higher authority who makes the final decision causes an adverse employment action" for purposes of First Amendment retaliation, qualified immunity precludes the relief Sims seeks. Seeid.
Sims cannot distinguish Culbertson. The plaintiff, Amanda Culbertson, like Sims, alleged that she was fired for asserting her First Amendment rights.Id. at 614-16 . Culbertson, like Sims, sought damages under § 1983 from someone who recommended that she be fired but who did not have the authority to fire her.Id. The Fifth Circuit held that qualified immunity barred Culbertson's First Amendment claim against the nondecisionmaker.Id. at 627 . Sims attempts to rely on language from Culbertson analyzing the underlying constitutional violation,id. at 625-26 , but he ignores the opinion's qualified-immunity holding,id. at 627 . (Docket Entry No. 86, Ex. 1 at p. 29). Under Culbertson , Sims's claim must fail.142
The analysis and reasoning in Sims is applicable to the present case.
First, the Court notes that Plaintiff in the present case has not alleged in her Complaint that either Reinoso or Monaco caused or effected her termination. Indeed, there is no allegation that either of them even recommended her dismissal. Thus, any claims against Reinoso or Monaco for unlawful termination are dismissed as a matter of law. Plaintiff does allege that Dean Andrew recommended her dismissal to the Provost, and that Chancellor Alexander recommended her dismissal to the Board following the faculty committee hearing. Reading the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently alleged that Andrew and Alexander caused her termination. However, the discrete act by Andrew occurred 18 months prior to Plaintiff filing suit and has been dismissed as prescribed. In any event, both Andrew and Alexander are entitled to qualified immunity for Plaintiff's termination as set forth in Culbertson and Powers and for the reasons set forth below.
E. Qualified Immunity
Defendants also move for summary judgment on claims brought against them in their individual capacities on the assertion of the qualified immunity defense. Qualified immunity is addressed as a threshold matter, and its elements require an analysis of the substance of each constitutional claim raised. Qualified immunity protects government officials-from suit under
1. First Amendment Speech and Academic Freedom
Under Section 1983, a plaintiff must establish the deprivation of a right secured by the Constitution or laws of the United States committed by a person acting under color of state law.
The Supreme Court's decision in Garcetti v. Ceballos ,
Therefore, under Garcetti , the focus is on the role the employee occupied when she communicated rather than the content of the sрeech.
"Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment."
The inquiry into whether Plaintiff's speech is entitled to protection under the First Amendment as addressing a matter of public concern is a question of law for the court to decide.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record."
The Fifth Circuit noted that "[t]he 'rights' of the speaker are thus always tempered by a consideration of the rights of the audience and the public purpose served, or disserved, by his speech. Appellant's argument, by ignoring his audience and the lack of any public purpose in his offensive epithets, founders on several fronts."
There is no doubt that Martin's epithets did not address a matter of public concern. One student described Martin's June 19, 1984, castigation of the class as an explosion, an unprovoked, extremely offensive, downgrading of the entire class. In highly derogatory and indecent terms, Martin impliеd that the students were inferior because they were accustomed to taking courses from inferior, part-time instructors at Midland College. The profanity described Martin's attitude toward his students, hardly a matter that, but for this lawsuit, would occasion public discussion. Appellant has not argued that his profanity was forany purpose other than cussing out his students as an expression of frustration with their progress-to "motivate" them-and has thereby impliedly conceded his case under Connick. 175
The Fifth Circuit further held that, "[r]epeated failure by a member of the educational staff of Midland College to exhibit professionalism degrades his important mission and detracts from the subjects he is trying to teach."
However, we hold that the students in Martin's classroom, who paid to be taught and not vilified in indecent terms, are subject to the holding of Pacifica , which, like Cohen , recognizes that surroundings and context are essential, case-by-case determinants of the constitutional protection accorded to indecent language. Martin's language is unprotected under the reasoning of these cases because, taken in context, it constituted a deliberate, superfluous attack on a "captive audience" with no academic purpose or justification.179
Although not binding, decisions from other federal appellate courts also support the Court's holding. The Sixth Circuit's decision in Bonnell v. Lorenzo
Unless germane to discussion of appropriate course materials and thus a constitutionally protected act of academic freedom, your utterance in the classroom of such words as 'fuck,' 'cunt,' and 'pussy' may serve as a reasonable basis for concluding as a matter of law that you are fostering a learning environment hostile to women, a form of sexual harassment. Federаl and state law imposes a duty on the College to prevent the sexual harassment of its students and therefore requires that the College discipline you if it finds that you have created a hostile environment.183
Despite this warning, the complaints about Bonnell continued. One student complained that his comments were "dehumanizing, degrading, and sexually explicit."
In support of its holding, the Bonnell court relied on and discussed in detail the Fifth Circuit's decision in Martin and held:
Plaintiff may have a constitutional right to use words such as "pussy," "cunt," and "fuck," but he does not have a constitutional right to use them in a classroom setting where they are not germane to the subject matter, in contravention of the College's sexual harassment policy. Seeid. ; see also FCC v. Pacifica Found. ,, 747, 438 U.S. 726 , 98 S.Ct. 3026 (1978) (finding speech that is " 'vulgar,' 'offensive,' and 'shocking' ... is not entitled to absolute constitutional protection under all circumstances"). This is particularly so when one considers the unique context in which the speech is conveyed-a classroom where a college professor is speaking to a captive audience of students, see Martin , 57 L.Ed.2d 1073 805 F.2d at 586 , who cannot "effectively avoid further bombardment of their sensibilities simply by averting their [ears]." Hill [v. Colorado,], 120 S.Ct. [2480] at 2489 [ 530 U.S. 703 (2000) ]. Although we do not wish to chill speech in the classroom setting, especially in the unique milieu of a college or university where debate and the clash of viewpoints are encouraged-if not necessary-to spur intellectual growth, it has long been held that despite the sanctity of the First Amendment, speech that is vulgar or profane is not entitled to absolute constitutional protection. See Pacifica , 147 L.Ed.2d 597 , 438 U.S. at 747. 98 S.Ct. 3026 185
The Second Circuit's decision in Vega v. Miller is also applicable here.
In the summer of 1994, Vega taught a six-week composition course at the College's Summer Institute, a program designed for pre-freshmen who need remedial courses prior to matriculation. The students were male and female, aged 17 and 18. On July 21, Vega conducted a free-association exercise called "clustering," in which students were invited to select a topic, then call out words related to the topic, and finally group related words together into "clusters." According to Vega, the exercise is intended to help students reduce the use of repetitive words in college-level essays.
The students selected "sex" as the topic for the "clustering" exercise. Vega understood the topic to be "sex and relationships." Vega then invited the students to call out words or phrases related to the topic, and he wrote at least many of their responses on the blackboard. The first words called out were, as Vega described them, "very safe words," such as "marriage," "children," and "wedding ring." As the exercise continued, the words called out included "penis," "vagina," "fellatio," and "cunnilingus." Toward the end of the exercise, with all but one of the students yelling and two standing on chairs, the following words and phrases were called out: "cluster fuck," "slamhole," "bearded clam," "fist fucking," "studded rubbers," "your [sic] so hard," and "eating girls out."187
Vega wrote many of the words on the blackboard, but "[a]t no point in the session did Vega seek to curtail the vulgarity of what the students were yelling, or terminate the exercise."
Vega was confronted about this exercise, and he turned over his lesson plans which included many provocative topics. Vega was advised that the administrators found the exercise inappropriate, and that "it opened the door to bad publicity and possible sexual harassment complaints."
In considering Vega's First Amendment academic freedom claim, the court noted jurisprudence that "serves as a caution to governmental administrators not to discipline a college teacher for expressing controversial, even offensive, views lest a 'pall of orthodoxy' inhibit the free exchange of ideas in the classroom,"
The Vega court also held that, considering the state of the law at the time of Vega's conduct, the defendants were entitled to qualified immunity for disciplining Vega:
[T]he Defendants could reasonably believe that in disciplining Vega for not exercising professional judgment to terminate the episode, they were not violating his clearly established First Amendment academic freedom rights. Even though no students complained, what students will silently endure is nоt the measure of what a college must tolerate or what administrators may reasonably think that a college need not tolerate.195
Plaintiff likens her case to Hardy v. Jefferson Community College.
Hardy is easily distinguished from the present case. There is no argument or jurisprudence before the Court which support Plaintiff's claim that using the word "pussy" and "fuck," or discussing her own or students' sex lives and/or reproductive decisions, are relevant to educating students on becoming teachers of preschool through third grade students. These words and/or discussions are not relevant to the subject matter being taught. Indeed, even Hardy makes clear that academic freedom protects only speech in the context of instructional communication of "an idea transcending personal interest or opinion which impacts our social and/or political lives."
Applying the Fifth Circuit's decision in Martin to the facts of this case, the Court finds that Plaintiff has failed to create a genuine issue of material fact that her comments were in any way related to her pedagogical strategy for teaching preschool and elementary education to future teachers. Plaintiff has presented no summary judgment evidence that use of the words "pussy," "fuck," and other explicit words are germane to the subject matter being taught. Discussions of students and/or Plaintiff's sex lives in class is likewise not related in any way to the subject matter being taught. As found in Martin , Plaintiff has offered no evidence that her
Further, the student complaints herein in many ways mirror those in Martin in that Plaintiff's students avoided her class, avoided speaking up in class, and felt embarrassed and/or harassed by Plaintiff's conduct. Dr. Cheek reported that a "cohort" of between ten and twelve students complained that they felt sexually harassed by Plaintiff and submitted a written complaint in 2012 regarding Plaintiff's classroom language and conduct.
Plaintiff has utterly failed to present any summary judgment evidence establishing how her conduct and language related in any way to assignments, instruction, and education of preschool and elementary teachers. The argument that Plaintiff used such language because her students would encounter same by their future preschool through third grade students and parents is unsupported by any record evidence and rejected by the Court as spurious.
For the reasons set forth above, the Court finds that Plaintiff's speech is not protected by the academic freedom exception to Garcetti and did not involve a matter of public concern. As such, "it is unnecessary for the court to scrutinize the reason for the discipline."
Even if the Plaintiff's speech were protected, the Court, nonetheless, finds that the Defendants are entitled to the defense of qualified immunity. Based on the clearly established law in place at the time of Plaintiff's conduct, the Court finds that the actions of the Defendants were objectively reasonable. It was objectively reasonable for Defendants Monaco, Reinoso, and Dean Andrew, prompted by complaints from students and the fact that several local schools would not allow Plaintiff to return to their campuses, to conduct an investigation into Plaintiff's conduct, report such findings up the administrative chain, and recommend a due process hearing before a faculty committee. The Court further finds that Alexander's conduct-recommending Plaintiff's dismissal to the Board despite the faculty committee's recommendation for censure-was also objectively reasonable under the facts of this case. LSU policy clearly allows the Chancellor to make his own recommendation
2. Constitutional Challenge to LSU's Sexual Harassment Policies
Plaintiff alsо claims that LSU's sexual harassment policies are unconstitutional both facially and as-applied because they are overbroad and lack the necessary objective test for offensiveness. Defendants challenge Plaintiff's standing to seek a declaratory judgment that LSU's sexual harassment policies are unconstitutional pursuant to
Plaintiff argues she has standing to seek declaratory and injunctive relief against the Defendants because, although she no longer teaches at LSU, and may not return, "the collateral and future consequences of applying PS-73 and PS-95 to her, given the blemish on her record, afford her standing to challenge them."
Plaintiff claims that any regulation of harassment aimed at preventing a hostile educational environment must be drafted and applied with narrow specificity to avoid violating the First Amendment. Plaintiff contends the sexual harassment definitions in LSU's policies violate the basic constitutional requirements set forth by the Supreme Court's decision in Davis v. Monroe County Board of Education.
Plaintiff also contends Defendants' reliance on the OCR/DOJ blueprint is irrelevant as various university speech codes and enforcement actions have been invalidated
In addition to challenging the facial constitutionality of LSU's policies, Plaintiff also contends these policies were unconstitutional as applied to her. Plaintiff claims Reinoso did not examine events in context, particularly Cancienne's initial complaints. Plaintiff contends this complaint became a center-piece of the sexual harassment findings although Cancienne was more upset that his school had been criticized and testified that he did not interpret Plaintiff's comments as sexual in nature.
Plaintiff further claims that most of the statements described in Reinoso's report did not contribute to his ultimate finding because many witness claims were not corroborated and others did not support this finding at all as they had nothing to do with sexual harassment.
Plaintiff contends Dean Andrew relied on Reinoso's faulty report in setting the matter for a PS-104 hearing. Plaintiff further claims that Dean Andrew's memo to the Provost is "a confession not only of intent to fire a tenured professor based on pedagogy and performance, but that the only way he could think of to do so was
Notwithstanding this recommendation, Plaintiff claims Defendants continued to pursue her termination based on "irrelevant evidence."
a. Policy Language
LSU Policy PS-73 defines sexual harassment as:
speech and/or conduct of a sexually discriminatory nature, which was neither welcomed nor encouraged, which would be so offensive to a reasonable person as to create an abusive working or learning environment and/or impair his/her performance on the job or in the classroom.224
PS-73 also provides that:
The intent of his policy is to express the University's commitment and responsibility to protect its employees and students from sexual harassment and from retaliation for participating in a sexual harassment complaint. It is not intended to infringe upon constitutionally guaranteed rights nor upon academic freedom.225
PS-73 defines sexual harassment, in part, as follows:
Sexual harassment is also defined as unwelcome verbal or physical conduct of a sexual nature or gender-based conduct in which the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Examples include unwelcome touching; persistent, unwanted sexual/romantic attention or display of sexually oriented materials; deliberate, repeated gender-based humiliation or intimidation, and similar sexually oriented behavior of an intimidating or demeaning nature.226
LSU's policy on sexual harassment of students, PS-95, defines sexual harassment as follows:
Unwelcome verbal, visual, or physical behavior of a sexual nature. It includes quid pro quo harassment and hostile environment harassment, which "has the purpose or effect of unreasonably interfering with an individual's academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment."227
Further, PS-95 describes examples of hostile work environments, including "unwelcome touching or suggestive comments, offensive language or display of sexually oriented materials, obscene gestures, and
b. Standing
Defendants claim Plaintiff lacks standing to challenge the constitutionality of LSU's sexual harassment policies bеcause she has been discharged and cannot be reinstated. Plaintiff relies on the Fifth Circuit's decision in Esfeller v. O'Keefe
In Esfeller , a student at LSU filed suit against the Chancellor and Board of Supervisors under Sections 1983 & 1988, seeking a preliminary and permanent injunction against enforcement of LSU's code of conduct. Esfeller had been charged with four non-academic misconduct violations arising from a dispute he had with his former girlfriend, who had filed a complaint with LSU police.
Esfeller met with a dean regarding the alleged violations, and the dean conducted an investigation which ultimately resulted in Esfeller being found in violation of the code of conduct.
The panel hearing resulted in a unanimous finding that Esfeller was in violation of the code. Esfeller appealed this decision to the Vice Chancellor who denied the appeal. Esfeller then sought review by LSU's Chancellor, who also denied the appeal.
The Fifth Circuit first addressed whether Esfeller met the requirements for Article III standing and stated as follows:
We briefly address whether Esfeller meets the requirements for Article III jurisdiction. Tex. Office of Pub. Util. Counsel v. FCC ,, 413 n. 16 (5th Cir.1999). He is no longer a student at LSU, having been expelled because of a low grade-point average. Further, he has no plans to return to LSU. Mootness goes to the heart of the court's Article III jurisdiction. A case becomes moot if: "(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." 183 F.3d 393 Id. at 413-14 . Standing alone, Esfeller's request for injunctive relief invalidating the offending Code provision is moot. Where a student is no longer enrolled in the school whose policies he is challenging, there is no case or controversy sufficient to support prospective injunctive relief. SeeWard v. Santa Fe Indep. Sch. Dist. , , 606 (5th Cir.2004) ; Hole v. Tex. A & M Univ. , No. 04-CV-175 [ 393 F.3d 599 at *6-7], 2009 WL 8173385 at *20 (S.D.Tex. Feb. 10, 2009). Here, however, Esfeller received a disciplinary sanction, reflected on his academic record and he seeks to prevent the University from enforcing that punishment. Thus, there are collateral or future consequences sufficient to satisfy the case or controversy requirement . Cf. Kennedy v. MindPrint (In re ProEducation Int'l, Inc.) , 2009 U.S. Dist. LEXIS 123291 , 299 n. 1 (5th Cir.2009) (holding that injury to attorney's reputation stemming from disqualification order sufficed to confer Article III jurisdiction for appeal); see also Sullivan v. Houston Indep. Sch. Dist. , 587 F.3d 296 , 1338 (S.D.Tex.1969). Although, absent the blemish on his academic record, Esfeller would not have a live controversy or standing to challenge the validity of the Code now that he is no longer subject to it, the sanction is an actual, concrete injury sufficient to satisfy Article III . See Fairchild v. Liberty Indep. Sch. Dist. , 307 F.Supp. 1328 , 754 (5th Cir.2010). Thus, he can seek to invalidate the Code provisions and enjoin their application because, if successful, Esfeller will no longer be subject to the disciplinary sanction, which would be removed from his record. 597 F.3d 747 238
For the same reasons as set forth in Esfeller , The Court finds that Plaintiff has demonstrated Article III standing to bring the constitutional challenges to LSU's policies. First, she is seeking reinstatement, and second, this has blemished her record and could subject her to collateral injury when she seeks new employment.
c. Facial and As-Applied Challenges
"A facial challenge to a law is 'the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the [law] would be valid.' "
"Under the First Amendment overbreadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face because it also threatens others not before the court-those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid."
In Esfeller , the Fifth Circuit noted:
"A school need not tolerate student speech that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school." Hazelwood Sch. Dist. v. Kuhlmeier ,, 266, 484 U.S. 260 , 108 S.Ct. 562 (1988) (quoting Bethel Sch. Dist. No. 403 v. Fraser , 98 L.Ed.2d 592 , 685, 478 U.S. 675 , 106 S.Ct. 3159 (1986) ). The highest level of sсrutiny-applied to school regulations that are viewpoint-specific-requires the school to show that the expression would "substantially interfere with the work of the school or impinge upon the rights of other students." Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 92 L.Ed.2d 549 , 509, 393 U.S. 503 , 89 S.Ct. 733 (1969). Thus, for Esfeller's facial challenge to succeed, the overbreadth must be "substantial in relation to the [provision's] legitimate reach." Hersh [v. U.S. ex rel. Mukasey ], 553 F.3d [743] at 762 [ (5th Cir. 2008) ]. 21 L.Ed.2d 731 247
A First Amendment "as-applied" claim is a challenge to the statute's application to the litigants' own expressive activities.
d. Application
Plaintiff relies primarily on several opinions from circuits outside of the Fifth Circuit.
Harassment means verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment.
According to state law ( 18 Pa.C.S.A. § 2709 ), an individual commits the crime of harassment when, with intent to harass, annoy or alarm another person, the individual subjects, or attempts or threatens to subject, the other person to unwelcome physical contact; follows the other person in or about a public place or places; or behaves in a manner which alarms or seriously annoys the other person and which serves no legitimate purpose.253
The Saxe court then defined types of harassment in a definitions section. For example, "racial or color harassment" was defined as including "unwelcome verbal, written, or physical conduct directed at the characteristics of a person's race or color ...."
However, the Saxe court stated:
We do not suggest, of course, that no application of anti-harassment law to expressive speech can survive First Amendment scrutiny. Certainly, preventing discrimination in the workplace-and in the schools-is not only a legitimate, but a compelling, government interest. See, e.g., Board of Directors of Rotary International v. Rotary Club of Duarte ,, 549, 481 U.S. 537 , 107 S.Ct. 1940 (1987). And, as some courts and commentators have suggested, speech may be more readily subject to restrictions when a school or workplace audience is "captive" and cannot 95 L.Ed.2d 474 avoid the objectionable speech. See, e.g., Aguilar [v. Avis Rent A Car System, Inc. , ], 21 Cal.4th 121 , 980 P.2d [846] at 871-73 [ (1999) ] (Werdegar, J., concurring). We simply note that we have found no categorical rule that divests "harassing" speech, as defined by federal anti-discrimination statutes, of First Amendment protection. 87 Cal.Rptr.2d 132 259
The Saxe court further stated:
We do not suggest, of course, that a public school may never adopt regulations more protective than existing law; it may, provided that those regulations do not offend the Constitution. Such regulations cannot be insulated from First Amendment challenge, however, based on the argument that they do no more than prohibit conduct that is already unlawful.
Moreover, the Policy's prohibition extends beyond harassment that objectively denies a student equal access to a school's education resources. Even on a narrow reading, the Policy unequivocally prohibits any verbal or physical conduct that is based on an enumerated personal characteristic and that "has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment." (emphasis added). Unlike federal anti-harassment law, which imposes liability only when harassment has "a systemic effect on educational programs and activities," Davis ,526 U.S. at 633 ,(emphasis added), the Policy extends to speech that merely has the "purpose" of harassing another. This formulation, by focusing on the speaker's motive rather than the effect of speech on the learning environment, appears to sweep in those "simple acts of teasing and name-calling" that the Davis Court explicitly held were insufficient for liability. 119 S.Ct. 1661 260
The Court finds the Saxe case factually distinguishable from the case at bar. First, the harassment policy in Saxe is far more broad than LSU's policies as set forth above. The Saxe policy contained a catch-all category of "other personal characteristics" upon which one could be harassed that is not present in the LSU policies, and it even prohibited speech directed at one's "values."
Plaintiff also relies heavily on another Third Circuit decision, DeJohn v. Temple University ,
For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature, when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.263
The plaintiff complained that, because of the harassment policy, "he felt inhibited in expressing his opinions in class concerning women in combat and women in the military."
The court stated in particular that the policy's use of the words "hostile," "offensive," and "gender-motivated" is "on its face, sufficiently broad and subjective that they 'could conceivably be applied to cover any speech' of a 'gender-motivated' nature 'the content of which offends someone.' "
The court also took issue with the language "unreasonably interefere[s] with an individual's work," stating that it
probably falls short of satisfying the Tinker standard. If we were to construe "unreasonable" as encompassing a subjective and objective component, it still does not necessarily follow that speech which effects an unreasonable interference with an individual's work justifies restricting another's First Amendment freedoms. Under Tinker , students may express their opinions, even on controversial subjects, so long as they do so "without colliding with the rights of others." Tinker ,, 393 U.S. at 512. As we observed in Saxe, while the precise scope of this language is unclear, Saxe , 89 S.Ct. 733 240 F.3d at 217 , we do believe that a school has a compelling interest in preventing harassment. Yet, unlessharassment is qualified with a standard akin to a severe or pervasive requirement, a harassment policy may suppress core protected speech. 274
It is important to note, however, that the DeJohn court did not suggest that all anti-harassment policies violate the First Amendment. Indeed, the Third Circuit has previously emphasized that "preventing discrimination in the workplace-and in schools-is not only a legitimate, but a compelling, government interest."
The Court acknowledges that the language in LSU's policies is similar to that in the policy at issue in DeJohn , but the policies are not exactly the same. Although they lack the exact words "severe" or "pervasive," LSU's policies do inject an objective standard and require a heightened level of offense by the phrase "so offensive to a reasonable person" in PS-73, which is further enhanced by the definitions and examples of prohibited conduct set forth in the policy as quoted above. The definitions and examples set forth in the policy reveal a requirement that the conduct be severe and pervasive.
The Court has also considered the Ninth Circuit's decision in Cohen v. San Bernardino Valley College
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal, written, or physical conduct of a sexual nature. Itincludes, but is not limited to, circumstances in which:
1. Submission to such conduct is made explicitly or implicitly a term or condition of a student's academic standing or status.
2. Such conduct has the purpose or effect of unreasonably interfering with an individual's academic performance or creating an intimidating, hostile, or offensive learning environment.
3. Submission to or rejection of such conduct is used as the basis for academic success or failure.282
The Grievance Committee held a hearing and concluded that Cohen had violated the policy by creating a hostile learning environment.
The Ninth Circuit held that the university's policy was unconstitutionally broad and violated Cohen's constitutional rights:
In this case, the College punished Cohen based on his teaching methods under the provision of the Policy which prohibits conduct which has the "effect of unreasonably interfering with an individual's academic performance or creating an intimidating, hostile, or offensive learning environment." Cohen, admittedly, uses a confrontational teaching style designed to shock his students and make them think and write about controversial subjects. He assigns provocative essays such as Jonathan Swift's "A Modest Proposal" and discusses controversial subjects such аs obscenity, cannibalism, and consensual sex with children. At times, Cohen uses vulgarities and profanity in the classroom and places substantial emphasis on topics of a sexual nature.
We do not decide whether the College could punish speech of this nature if the Policy were more precisely construed by authoritative interpretive guidelines or if the College were to adopt a clearer and more precise policy. Rather, we hold that the Policy is simply too vague as applied to Cohen in this case. Cohen's speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy's nebulous outer reaches to punish teaching methods that Cohen had used for many years. Regardless of what the intentions of the officials of the College may have been, the consequences of their actions can best be described as a legalistic ambush. Cohen was simply without any notice that the Policy would be applied in such a way as to punish his longstanding teaching style-a style which, until the College imposed punishment upon Cohen under the Policy, had apparently been considered pedagogically sound and within the bounds of teaching methodology permitted at the College.286
Further, while Cohen is similar to the present case in several ways, it can also be distinguished. Cohen's language, conduct, and assignments were at least tangentially related to the subject matter being taught, and his pornography assignment, while in some views inappropriate and perhaps ill-advised, had an arguable teaching motive and some demonstrative connection to the coursework. The same cannot be said for the conduct and comments of Plaintiff. She repeatedly argues that her conduct and language are part of her pedagogy but has failed to provide the Court any summary judgment evidence which demonstrates sufficient justification or connection between the use of the vulgarities and unwelcome prying into students' sex lives with the teaching of PK-3 education or supervising student-teachers at elementary school campuses. Further, the court found that Cohen was "ambushed" by the student griеvance; in the present case, Plaintiff was admonished for her language and behavior at the Iberville school and apparently refused to change, opting instead to simply send others to work with student-teachers off campus. Perhaps the most significant distinction between Cohen and the present case is that LSU's policies include the objective standard "so offensive to a reasonable person," which was lacking in the Cohen policy.
The Second Circuit in Vega , discussed above, also addressed Vega's constitutional challenge to the college's sexual harassment policy. Vega claimed that the sexual harassment policy implemented against him was unconstitutionally vague and overbroad. The district court ruled that there was a factual issue as to whether Vega was terminated pursuant to the policy and denied summary judgment as to the administrators.
The Second Circuit reversed the district court and held:
Vega's academic freedom claim asserts that the First Amendment prevented the Defendants from disciplining him for this conduct, and we have ruled above that, whether or not that claim is valid, the Defendants were objectively reasonable in believing that it did not. Since the Defendants have a qualified immunity defense from damages liability for a First Amendment academic freedom violation, it does not matter whether they not only thought that Vega's conduct exceeded the proper bounds of a teacher's classroom conduct but also thought that it violated the College's sexual harassment policy. The conduct remains activity for which they may terminate him without incurring damages liability.290
This is not a case of dual motivation in which a plaintiff contends that adverse action was taken for an impermissiblereason, e.g., exercising First Amendment rights by providing information to a radio station, and the defendant contends that the action was taken for a different, permissible reason, e.g., using obscene gestures to correct students. See Mt. Healthy City School District Board of Education v. Doyle , , 281-83 & n. 1, 429 U.S. 274 , 97 S.Ct. 568 (1977). In such circumstances, if the evidence shows that the impermissible reason was a "motivating factor" of the adverse action, the defendant is liable unless it can show that it would have taken the adverse action in the absence of the impermissible reason. 50 L.Ed.2d 471 Id. at 287 ,. But where, as here, there is only one conduct of the discharged employee that motivates the adverse action, and a defendant has qualified immunity for taking such action, the immunity is not lost even if the defendant thinks that this same conduct also provides an additional reason for the adverse action . To take an extreme example, if a teacher ordered a female student to disrobe in front of a class and was firеd because the school administrator reasonably concluded that such conduct was not related to a legitimate pedagogical purpose, the administrator would not lose qualified immunity just because of an additional belief that the teacher's conduct also violated the school's sexual harassment policy, no matter how impermissibly vague or overbroad that policy was. 97 S.Ct. 568 291
The Vega court ultimately followed Cohen in granting qualified immunity to the college administrators:
In 1996, two years after Vega's termination, the Ninth Circuit held qualified immunity available to college administrators for disciplining a tenured professor for violating a sexual harassment policy that violated the First Amendment. Cohen ,92 F.3d at 973 . "The legal issues raised in this case are not readily discernable and the appropriate conclusion to each is not so clear that the officials should have known that their actions violated [the professor's] rights." Id. ; see also diLeo v. Greenfield ,, 953 (2d Cir.1976) (regulation permitting termination of teacher "for other due and sufficient cause" not unconstitutionally vague or overbroad as applied to teacher who made comments with sexual connotations to students). Moreover, in view of the vulgarities that Vega permitted to be expressed, no reasonable jury could fail to find that the Defendants would have terminated Vega solely because they considered his conduct beyond the bounds of proper classroom performance, even if the College had no sexual harassment policy . 541 F.2d 949 292
As set forth above, the Supreme Court requires that a challenger establish that no set of circumstances exists under which the policies would be valid. The Court finds that Plaintiff has failed to carry this heavy burden. First, the Court finds that the LSU policies, when read together, are not unconstitutionally broad or vague. While the Third Circuit has held there must be something akin to a "severe and pervasive" requirement for a sexual harassment policy to be valid, the Fifth Circuit has not explicitly done so in this context. Further, the Court finds that, while the LSU policies could arguably have been crafted better, the Court does not read the language in LSU's policies to be lacking an objective standard akin to severe and pervasive. The phrase "so offensive to a reasonable person" constitutes a requirement that the conduct be objectively
Plaintiff has likewise failed to establish that LSU's sexual harassment policies are unconstitutional as applied. "While rejection of a facial challenge to a statute does not preclude all as-applied attacks, surely it precludes one resting upon the same asserted principle of law."
In support of her as-applied challenge, Plaintiff primarily contends that even her own accusers did not understand the context of Plaintiff's profanity and language to be sexual in nature. Plaintiff maintains that the LSU policies' lack of a severe and pervasive requirement failed to put her on notice of what was prohibited conduct. The Court rejected this argument in addressing Plaintiff's facial challenge, finding that the LSU policies do contain an objective and subjective standard that satisfies this test. Because Plaintiff's as-applied challenge rests on the same principle of law as her facial challenge, it is denied on the same grounds.
Alternatively, the Court finds that, even if LSU's anti-harassment policies
3. Alleged Due Process Violations
Plaintiff claims that the investigation, hearing, and termination deprived her of procedural and substantive due process under the Fourteenth Amendment to the Constitution.
a. Parties' Arguments
Plaintiff claims that her termination violated her Fourteenth Amendment right to due process. She contends that the "bare recital of steps LSU took"
As for the final findings, Plaintiff contends such findings lacked any analysis explaining how she violated LSU's sexual harassment policies. Rather, she contends there was only a recap of interviews, a summary, and a bottom-line set of conclusory findings.
Subsequently, Plaintiff contends everything in Reinoso's report was deemed a "finding" of sexual harassment and relied upon in that fashion going forward. Dean Andrew recited a great deal of Reinoso's report in seeking PS-104 proceedings, the faculty committee based its decisions on it as well, and Alexander admitted that he
Plaintiff claims none of this information was communicated to her during the investigation, and even once she received the full report, she was forced to guess which allegations implicated sexual harassment and which had been disregarded, depriving her of any opportunity to address these distinctions at any stage before any decision-maker. Plaintiff argues the fact that an explanation from Reinoso only came once he was deposed, many months after Plaintiff's termination, negated her ability to present her side as to specific charges lodged against her.
While Plaintiff acknowledges she received a hearing before the faculty committee and was permitted to appeal, she claims these steps cannot cure a due process violation because "an adjudication ... tainted by bias cannot be constitutionally redeemed by review in an unbiased tribunal."
Defendants claim Plaintiff was afforded due process, and summary judgment should be granted in their favor on this claim. Defendants note that Plaintiff has acknowledged that she: (1) was notified of the allegations against her, (2) participated in pretrial meetings, (3) was afforded an evidentiary hearing before the faculty committee, and (4) was permitted to appeal the committee's findings and recommendations. Specifically, Defendants claim Plaintiff acknowledges the fact that LSU received complaints about her lack of professionalism during her site visit to Iberville Parish schools.
As to notice, Defendants refer to the packet received by Plaintiff advising her of the allegations, and Plaintiff's written response thereto, which referenced inappropriate or unwelcome language used in her teaching.
Further, Defendants note the undisputed fact that the faculty members of the PS-104 committee unanimously determined that Plaintiff violated PS-73 and PS-95 through her use of profanity, poorly worded jokes, and sometimes sexually explicit jokes.
Defendants contend that Plaintiff's unwillingness to modify her offensive behavior, even after she had been notified and asked to address it, is sufficient to establish Plaintiff's notice of the allegations being brought against her, particularly since the nature of the complaints by Iberville Parish is consistent with the complaints LSU received from other sources regarding Plaintiff's conduct. Further, Defendants maintain this series of events establishes that Plaintiff engaged in a pattern of conduct that was addressed and questioned by her supervisor, but she was unwilling to change.
Defendants also argue that Plaintiff's criticism of who investigators chose to interview or not does not amount to a denial of due process. Plaintiff's disagreement with the manner in which the investigation was carried out does not constitute a due process violation but only further illustrates Plaintiff's inability to get along with others and modify her behavior professionally. Defendants also take issue with Plaintiff's challenge to having her teaching duties suspended for the Spring 2014 semester when she unilaterally, without informing her supervisors, removed herself from teaching duties when her behavior was challenged. Defendants maintain that due process was not required for such an action because they were within the Provost's and Dean Andrew's discretion, and LSU has a responsibility to protect its students and the PK-3 program.
Thus, Defendants contend they have established by summary judgment evidence that Plaintiff was afforded due process. Plaintiff's argument that she did not learn the specifics of the charges until Reinoso was deposed is contradicted by the plethora of documents that she has attached to her pleadings. It is undisputed that Dr. Cheek made Plaintiff aware of the allegations, allowed her a response, and Plaintiff was excluded from several school campuses "long before the PS-104 hearing."
b. Procedural Due Process
The United States Constitution provides that, "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Where a tenured public university faculty member is terminated, due process requires both notice and an opportunity to be heard.
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.320
The Court finds that Plaintiff has failed to present summary judgment evidence that there is a material issue of fact as to whether she was denied Due Process in the investigation and hearing that resulted in her termination from LSU. Considering the record before the Court, the Court finds that Plaintiff was afforded both procedural and substantive due process leading up to her termination. The record establishes that Plaintiff was given notice of the allegations against her, and the Court finds no lack of specificity, especially in light of Plaintiff's responses. Further, at every step, Plaintiff was afforded an opportunity to respond to the allegations brought against her. At the faculty committee hearing, Plaintiff's position was considered, and the committee determined that she violated the sexual harassment policies of LSU. There is simply no summary judgment evidence that Plaintiff was not afforded proper notice and the opportunity to be heard at a meaningful time and in a meaningful manner, including appealing Alexander's recommendation to the Board.
c. Substantive Due Process
"Public officials violate substantive due process rights if they act arbitrarily or capriciously."
Plaintiff's substantive due process claim of bias is also unsupported by any summary judgment evidence. Plaintiff claims that Reinoso showed bias because he did not interview persons she believed should be interviewed. This does not establish bias for purposes of due process. The United States Supreme Court has held that an employer is entitled to limit his investigation and make credibility determinations in employment situations.
The Fifth Circuit has held that, "the members of an adjudicative body have been found to be unconstitutionally biased in three circumstances:
(1) where the decision maker has a direct personal, substantial, and pecuniary interest in the outcome of the case; (2) where an adjudicator has been the target of personal abuse or criticism from the party before him; and (3) when a judicial or quasi-judicial decision maker has the dual role of investigating and adjudicating disputes and complaints."330
Plaintiff has failed to present summary judgment evidence satisfying any of the above circumstances of bias. While Reinoso did investigate the allegations against Plaintiff and submitted findings, the faculty committee was not bound by these findings, and there is no evidence that Reinoso had any hand in the final decision reached by the committee or Alexander's recommendation to the Board.
There is likewise no evidence that the decision to terminate Plaintiff was arbitrary or capricious because Plaintiff has failed to present evidence establishing that her termination lacked a basis in fact or was made without professional judgment. To the contrary, there is abundant evidence in the record, discussed at length above, establishing that Plaintiff engaged in conduct and used speech that violated LSU's anti-harassment policies, and the faculty committee's conclusion confirms this.
On the Plaintiff's claims of procedural and substantive due process violations, the Court is guided by the Fifth Circuit's decision in Pastorek v. Trail ,
The plaintiff was informed of the charges and provided a copy of the Chair's complaint. The plaintiff's obstetrics privileges were suspended, but he was allowed to continue teaching and practicing gynecology pending an investigation and hearing. A committee was appointed to review the charges against the plaintiff, and the committee sought independent review from another physician.
Following this conclusion, Trail terminated the plaintiff's employment. The plaintiff appealed this decision to the Dean of LSUMS, the LSUMS Standing Appeals Committee, and the President of LSU. The plaintiff lost each appeal and claimed that all of the hearings were biased against him. The LSU Board of Supervisors ultimately ratified the decision to terminate the plaintiff.
On appeal, the plaintiff argued that the termination proceedings did not afford him due process, specifically because he claimed the defendants did not give him notice of the "actual reasons" for his termination, and the termination hearing was biased.
Appellant alleges that he was denied due process because he did not have an opportunity to respond to "the reasons which actually motivated Dr. Trail" to terminate him. In Levitt v. University of Texas at El Paso , this court articulated the due process protections to which a tenured professor is entitled., 1228 (5th Cir.1985). Included among these protections is the professor's right to "be advised of the cause for his termination in sufficient detail so as to enable him to show any error that may exist." 759 F.2d 1224 Id. This notice requirement is satisfied when a professor receives "notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Bd. of Educ. v. Loudermill ,, 546, 470 U.S. 532 , 1495 [ 105 S.Ct. 1487 ] (1985). 84 L.Ed.2d 494
Prior to terminating appellant, Trail sent a letter informing him of the decision to institute termination proceedings. The letter informed appellant of the charges and requested a written response. These facts are not disputed. This procedure gave appellant notice of the charges and an opportunity to tell "his side of the story." Therefore, Appellant received the notice and opportunity to be heard that due process requires.
Appellant also argues that the hearing he received was biased because a lawyer participated as an advisor both in drafting the initial charge letter and in the subsequent hearings. Before being terminated, a tenured professor is entitled to a hearing before a tribunal that possesses "an apparent impartiality toward the charges." Levitt ,. However, partiality is not established by the fact that someone participated in the hearing and in the initial investigation. See Duke v. North Texas State University , 759 F.2d at 1228, 834 (5th Cir.1972). For example, in Duke v. North Texas State University , this Court rejected plaintiff's argument that the hearing was biased simply because some of those who sat on the panel also participated in the charging phase of the termination proceedings. See 469 F.2d 829 id. Similarly, appellant argues that the participation of an attorney in the charging and hearing phases of the termination proceedings made the hearing biased against him. Just as in Duke , such participation does not constitute partiality, particularly where, as here, the allegedly partial individual did not participate in the actual decision to terminate. Summary judgment against appellant on his procedural due process claims was appropriate.342
The plaintiff also claimed that his substantive due process rights were denied because he was terminated without cause. The Fifth Circuit noted that, to prevail on such a claim, the plaintiff had to show that he had a property interest in his employment and that his termination was arbitrary or capricious.
In this case, Dr. Gary Cunningham, a physician not associated with LSUMS, determined that appellant engaged in "questionable obstetrical practices." An independent review by the ACOG resulted in a finding that, in two cases, appellant's care fell below the standard required of a physician. The ACOG also found that appellant's performance was unsatisfactory in another sixteen cases because of inadequate medical record documentation. Appellant was provided a hearing, an opportunity to defend himself, and several appeals. Appellant may not agree with Dr. Cunningham's or the ACOG's findings, but it cannot be said that the decision to terminate him lacked a basis in fact. Further, the extensive proceedings afforded appellant show that the decision to terminate him was not made arbitrarily or capriciously. Therefore, neither Trail nor Elkins violated appellant's substantive due process rights and summary judgment in their favor on this issue was appropriate.346
No different result is mandated in the present case.
The Court is mindful of the Fifth Circuit's decision in Honore v. Douglas , wherein the Court found procedural adequacy but reversed the district court's grant of summary judgment on the substantive due process claim where the committee "unanimously recommended tenure," but the university president rejected such a recommendation.
Accordingly, Defendants are entitled to summary judgment on Plaintiff's due process claims.
III. CONCLUSION
For the reasons set forth above, Defendants' Motion for Summary Judgment
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Notes
Rec. Doc. Nos. 30 & 35. Defendants also moved for judgment on the pleadings (Rec. Doc. No. 26) which appears to have been improperly terminated by Rec. Doc. No. 32. However, because these issues are covered by the parties' cross-motions for summary judgment, the Court will address those matters herein.
Rec. Doc. Nos. 42 & 43.
Rec. Doc. Nos. 46 & 47.
Rec. Doc. Nos. 60 & 61.
The Board is a constitutionally created entity required "to supervise and manage the institutions ... administered through its system," La. Const. Art. 8 § 7, including LSU. La. R.S. 17:3215(1).
Rec. Doc. No. 36-1, ¶ 155.
Rec. Doc. No. 36-1, ¶¶ 1-3.
Id. ¶¶ 10-12.
Id. ¶¶ 4-9.
Id. ¶¶ 13-15.
See Rec. Doc. No. 14, ¶ 18.
Rec. Doc. No. 36-1, ¶¶ 16-18.
Id. ¶¶ 18-21.
Rec. Doc. No. 35-1, p. 2.
Rec. Doc. No. 36-1, ¶ 24.
Id. ¶ 25.
Id. ¶ 22.
Id. ¶ 22-23.
Id. ¶ 28.
Id. ¶ 29.
Id. ¶¶ 39-40.
Id. ¶¶ 37; 42-43.
Id. ¶ 42.
Rec. Doc. No. 65-4, p. 2; Deposition of Jennifer Curry, p. 69, lines 3-10.
Id. at p. 4; Deposition of Curry, p. 71, lines 19-21.
Id. at p. 5; Deposition of Curry, p. 72, line 3.
Rec. Doc. No. 36-1, ¶ 48.
Id. ¶ 49.
Rec. Doc. No. 35-1, p. 12, n. 5.
Rec. Doc. No. 36-1, ¶¶ 50-51.
Rec. Doc. No. 65-4, p. 6; Deposition of Curry, p. 80, lines 18-19.
Id. at p. 7; Deposition of Curry, p. 81, lines 9-14.
Id. at p. 8; Deposition of Curry, p. 100.
Id. at p. 9; Deposition of Curry, p. 148.
The LSU faculty handbook provides that: "A faculty member (instructor or higher) who feels he or she has a grievance may appeal for a review by appropriate administrators and/or a review by the Faculty Senate Grievance Committee. A grievance is a complaint and/or claim that there has been unfair or unequal treatment by reason of an act or condition that is contrary to established University policy and procedure governing the employer-employee relationship or that there has been a violation, misinterpretation, or inequitable application of University employment policy."
Rec. Doc. No. 34-2, p. 9, Deposition of Karen Donnelly, p. 74, lines 4-7.
Rec. Doc. No. 31-1, pp. 11-12; Deposition of Teresa Buchanan, pp. 200-201; see also Rec. Doc. No. 31-1, p. 15 (Exhibit 7 to Deposition of Buchanan).
Rec. Doc. No. 1, ¶¶ 19-20.
Id. ¶ 20.
Rec.Doc. No. 30-1, p. 4, citing Deposition of Gaston Reinoso, pp. 2-5.
Rec. Doc. No. 36-1, ¶¶ 97-98.
Id. ¶ 101.
Id. ¶ 102.
Id. ¶ 104.
Rec. Doc. No. 31-1, p. 17 (Exhibit 8 to Deposition of Buchanan).
Rec. Doc. No. 36-1, ¶ 107.
Rec. Doc. No. 1, ¶ 33.
See Rec. Doc. No. 31-4, p. 9.
Rec. Doc. No. 1, ¶ 34.
Id. ¶ 35.
Rec. Doc. No. 31-1, pp. 4-5; Deposition of Buchanan, pp. 80-81.
Rec. Doc. No. 36-1, ¶¶ 124-125, citing Rec. Doc. No. 35-6, pp. 43-44, Deposition of William Stickle, pp. 48-52.
Rec. Doc. No. 35-6, pp. 47-48, Deposition of William Stickle, pp. 137-138.
Rec. Doc. No. 36-1, ¶¶ 121, 129.
Rec. Doc. No. 35-1, p. 17, citing Rec. Doc. No. 36-1, ¶ 130.
Rec. Doc. No. 36-1, ¶ 123.
See Rec. Doc. No. 65-3, p. 26.
Rec. Doc. No. 31-2, p. 14,
See Rec. Doc. No. 1, ¶ 38; Rec. Doc. No. 14, ¶ 38.
Rec. Doc. No. 36-2, p. 75.
Rec. Doc. No. 31-2, p. 11.
Rec. Doc. No. 35-6, p. 56.
Id. (emphasis added).
Rec. Doc. No. 36-1, ¶ 140, citing Rec. Doc. No. 35-5, Deposition of Alexander, pp. 51-56.
Rec. Doc. No. 35-5, Deposition of Alexander, pp. 54, lines 8-11.
See id. , Deposition of Alexander, pp. 152-157
Rec. Doc. No. 35-1, p. 18, citing Rec. Doc. No. 36-1, ¶ 143. Alexander was asked if this case had only been about profanity, poorly worded jokes, or occasionally sexually explicit jokes, would it have progressed to this level, and he responded: "This probably would not have progressed to this level." Id. at p. 163, lines 15-16. However, Alexander's testimony makes clear that he did not believe the case to be only about those issues.
Rec.Doc. No. 31-1, p. 6, Deposition of Buchanan, p. 176.
Rec. Doc. No. 31-2, p. 18.
Rec.Doc. No. 31-1, p. 3, Deposition of Buchanan, p. 30.
Rec. Doc. No. 1, ¶ 24, quoting Rec. Doc. No. 1-2, p. 2.
Id. ¶ 24, quoting Rec. Doc. No. 1-2, p. 6.
Id. at ¶ 25.
Rec. Doc. No. 1-2, p. 2.
Id. at p. 3.
Rec. Doc. No. 36-1, ¶¶ 151, 153.
Rec. Doc. No. 36-5, p. 145, Faculty Senate Resolution 15-15. The Court notes that this document appears to be Minutes of the Faculty Senate meeting, and the Court cannot determine if this Resolution was proposed or passed.
Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co. ,
Guerin v. Pointe Coupee Parish Nursing Home ,
Rivera v. Houston Independent School Dist. ,
Willis v. Roche Biomedical Laboratories, Inc. ,
Pylant v. Hartford Life and Accident Insurance Company ,
See Galindo v. Precision American Corp. ,
RSR Corp. v. Int'l Ins. Co. ,
Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Tex. ,
Will v. Michigan Dep't of State Police ,
Voisin's Oyster House, Inc. v. Guidry ,
See La. Const. art. XII, § 10 ; La.Rev.Stat. Ann. § 13:5106.
Delahoussaye v. City of New Iberia ,
See Ex parte Young ,
New Orleans Towing Ass'n v. Foster ,
See Wilson v. Garcia ,
Helton v. Clements ,
See Bourdais v. New Orleans City ,
No. 03:10-CV-155-JJB-CN,
Id. at *8.
Rec. Doc. No. 1, ¶ 33.
Alternatively, the Court finds that Defendants Andrew, Reinoso, and Monaco would be entitled to qualified immunity for the reasons set forth hereafter.
Rec. Doc. No. 35-1, p. 36 (Brief, p. 29).
See Hamic v. Harris Cnty., W.C. & I.D. No. 36 ,
See Powers v. Northside Independent School Dist. ,
No. H-14-2145,
Id. at *5-6.
See Good v. Curtis ,
Freeman v. Gore ,
Southwestern Bell Telephone, LP v. City of Houston ,
Charles v. Grief ,
See Davis v. McKinney ,
Garcetti ,
Davis ,
See Williams ,
University of California Regents v. Bakke ,
Dow Chemical Co. v. Allen ,
Hillis v. Stephen F. Austin State University ,
Vance v. Board of Supervisors of Southern University ,
See Rankin v. McPherson ,
See Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. ,
See Dambrot v. Cent. Mich. Univ. ,
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle ,
See Connick v. Myers ,
See Kennedy v. Tangipahoa Parish Library Bd. of Control ,
Rahn v. Drake Ctr., Inc. ,
Id. at 586.
Id. at 468.
See
See
This is not to say that instructional speech much occur in the classroom to be protected, but the speech much be related to academic instruction to be afforded constitutional protection.
Rec. Doc. No. 65-4, pp. 6-7, Deposition of Curry, pp. 80-81.
Id. at p. 5, Deposition of Curry, p. 72, lines 11-12.
Id. at p. 5; Deposition of Curry, p. 72, lines 12-14.
Connick ,
See Rec. Doc. No. 35-6, p. 56.
See www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um-ltr-findings.pdf.
Rec. Doc. No. 35-1, p. 17, n. 21, citing Esfeller v. O'Keefe ,
Rec. Doc. No. 35-1, p. 18.
Id. at p. 19, citing Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ. ,
Miller ,
Rec. Doc. No. 36-1, ¶¶ 35, 37-39.
Rec. Doc. No. 35-1, p. 21.
Id. at p. 22.
222 Id.
Rec. Doc. No. 1, ¶ 24, quoting Rec. Doc. No. 1-2, p. 2 (emphasis added).
Rec. Doc. No. 1-2, p. 2.
Id. at p. 3.
Id. ¶ 24, quoting Rec. Doc. No. 1-2, p. 6 (emphasis added).
Id. at ¶ 25.
Pounds v. Katy Independent School Dist. ,
West v. Derby Unified Sch. Dist. No. 260 ,
See Members of the City Council v. Taxpayers for Vincent ,
Roberts v. Haragan,
Board of Airport Comm'rs ,
City of Houston v. Hill ,
Esfeller ,
Jornaleros de Las Palmas v. City of League City ,
Justice v. Hosemann ,
The Court did not locate a Fifth Circuit case directly on point on this issue. The Fifth Circuit has addressed a constitutional challenge of overbreadth to a sexual harassment policy but not in the context of a college setting. In DeAngelis v. El Paso Mun. Police Officers Ass'n ,
Id. at 316 (quoting Saxe ,
DeJohn ,
Id. at 319-20 (citations omitted).
Id. at 464.
Id. at 465.
Id. at 468-69.
Id. at 469 (emphasis added).
Id. at 469-70,
Sexual harassment is also defined as unwelcome verbal or physical conduct of a sexual nature or gender-based conduct in which the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Examples include unwelcome touching; persistent, unwanted sexual/romantic attention or display of sexually oriented materials; deliberate, repeated gender-based humiliation or intimidation, and similar sexually oriented behavior of an intimidating or demeaning nature. Rec. Doc. No. 1-2, p. 3.
Penry v. Lynaugh ,
Netherland v. City of Zachary, La. ,
See Horton v. City of Houston ,
Vega ,
Rec. Doc. No. 35-1, p. 23.
SUMF ¶ 78.
Rec. Doc. No. 35-1, p. 31.
Rec. Doc. No. 35-1, p. 32, quoting Clements v. Airport Authority of Washoe County ,
See Rec. Doc. No. 36-1, ¶¶ 16-18.
Rec. Doc. No. 36-2, pp. 68-72.
Rec. Doc. No. 36-2, pp. 74-76.
Rec. Doc. No. 36-3.
Rec. Doc. No. 46, p. 8, citing Rec. Doc. No. 35-6, Ex. 5, pp. 81 & 84.
Jones v. Louisiana Bd. of Sup'rs of University of Louisiana Systems ,
Morrissey v. Brewer ,
Babin v. Breaux ,
Jones ,
At best, one might argue that reasonable minds could disagree on the propriety of Plaintiff's termination; however, that is insufficient to defeat a public official's qualified immunity. See State of Tex. By and Through Bd. of Regents of University of Texas System v. Walker ,
Finch v. Fort Bend Indep. Sch. Dist. ,
Mills v. Garcia ,
Jones ,
See Waters v. Churchill ,
Klingler v. University of Southern Mississippi, USM ,
Even if Reinoso was considered an "adjudicator," Plaintiff has failed to overcome "strong presumptions of (1) the adjudicators' honesty and integrity and (2) that the decision was made in the public interest."
Id. at *1.
Id. at *4.
Id. at *5, quoting Walker ,
Rec. Doc. No. 30.
Rec. Doc. No. 35.