NICK VINCENT FLOR, Plaintiff, v. THE BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO, STEPHEN BISHOP, LISA BROIDY, KEVIN GICK, KARIN HIGH, ERIC LAU, individually and in their official capacities, and EVA CHAVEZ, Defendants.
Case No. 1:20-cv-00027-MLG-LF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
September 8, 2025
Plaintiff Nick Flor, a tenured professor at the University of New Mexico (“University“), received a one-year suspension for having inappropriate communications with a former graduate student (Defendant Eva Chavez). See generally Doc. 68. Flor claims that this disciplinary action was disproportionate and based on flawed investigatory processes fraught with procedural irregularities, which he views as evidence of gender discrimination in violation of Title IX of the Education Amendments of 1972,
BACKGROUND2
I. Factual Background
A. Conduct Leading to the University‘s Investigation
Flor was (and is) a professor at the Anderson School of Management (“Anderson“). UMF 18. Chavez was a graduate student in the same school during the pendency of the events material to this litigation. Doc. 191-3 at 1; see Doc. 191 at 29; Doc. 198 at 8. Over the course of about six days, Flor and Chavez exchanged text messages and more than 5,000 e-mails, some of which were overtly flirtatious and sexual while others addressed academic and professional matters, including Flor‘s offer of a paid graduate assistantship position. UMFs 10-13, 15; see Doc. 191-3 at 6-20 (summarizing the pair‘s correspondence). Shortly thereafter, Flor began to have reservations about the inappropriate nature of his exchanges with Chavez, and he attempted to cut off communication with her. See UMFs 14, 16. Predictably, their relationship soured, and Chavez threatened to share their messages and emails with University administrators. Id.; see e.g., Doc. 191-3 at 19-20. Flor opted to preemptively address the issue by sending the messages to his department chair, Dr. Mary Margaret Rogers. UMF 17.
Rogers reported the situation to the University Office of Equal Opportunity‘s (“OEO“) on Flor‘s behalf (“Flor Complaint“). Id. Chavez learned of that filing and subsequently lodged her
B. The OEO Investigation and Complaints
The OEO opened an inquiry3 and subsequently issued a Preliminary Letter of Determination (“PLOD“) addressing the Chavez Complaint.4 See UMF 25; see generally Doc. 191-3. As set out in the PLOD, the OEO considered the conduct at issue against the backdrop of documentary evidence and applicable University policies including Administrative Policy 2740, which details the University‘s Anti-Sexual Harassment and Sexual Assault policies.5 UMFs 7, 26-27; see Doc. 191-3 at 1-20; Doc. 191-1 at 10-23. That guideline broadly defines “sexual harassment” as ”unwelcome conduct of a sexual nature” including either quid pro quo exchanges or actions giving rise to a hostile environment Doc. 191-1 at 10-11 (emphasis added). Policy 2740 goes on to identify behaviors that “may constitute sexual harassment – (either quid pro quo or
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual‘s employment or academic advancement [or]
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions or academic decisions affecting such individual[.]
Id. at 10-11. Policy 2740 also provides that a hostile environment is created when
unwanted conduct of a sexual nature is sufficiently serious . . . and objectively offensive as to deny or limit a person‘s ability to participate in or benefit from the University‘s programs . . .; or when such conduct has the purpose or effect of unreasonably interfering with an individual‘s employment[.]
Id. at 11. To further determine whether sexual harassment created a hostile environment, the OEO considers a two-part test—“whether the conduct was unwelcome to the person who feels harassed” and whether a reasonable person would be offended—alongside four other factors. Id. (emphasis added).
Based on the foregoing, the OEO preliminarily found that Chavez did not violate Policy 2740—specifically, that Chavez had not sexually harassed Flor by creating a hostile environment. See generally Doc. 22-3 at 1. In making this determination, the OEO considered factors such as whether the conduct was sexual in nature, whether the conduct was subjectively and objectively unwelcome, the frequency and severity of the conduct, and whether the conduct unreasonably interfered with an employee‘s work performance or a student‘s academic performance. Id. at 15. The OEO noted that Chavez‘s communications with Flor “that were sexual in nature were both subjectively and objectively welcomed by [Flor].” Id. at 16. It emphasized this point, stating, “In fact, [Chavez]‘s sexual communications were solicited by [Flor].” Id. The OEO also noted that most of the complained-of-communications between the pair were not sexual, and it could not “be said that they were objectively unwelcome or that a reasonable person would have known the
As to the Chavez Complaint, the OEO explained (through the PLOD) that it was prepared to find that Flor had committed quid pro quo sexual harassment. UMF 27; Doc. 191-3 at 1, 20-23. In reaching its decision, the OEO considered two questions:
- Whether submission to sexual conduct was made either explicitly or implicitly a term or condition of an individual‘s employment or academic advancement; or
- Whether submission to or rejection of sexual conduct by an individual was used as the basis for employment decisions or academic decisions affecting the affected party.
Doc. 191-3 at 20. Answering both queries in the affirmative, the OEO found compelling (1) the “‘inherent power differential’ between a faculty member and a student which can render consent difficult to assess or construe it to be coercive;” (2) how the chronology of the communications established that Chavez‘s “receptiveness and reciprocation of [Flor‘s] sexual overtures was an implied term or condition of her hire by [Flor] as a graduate or project assistant;” and (3) that “[a]n employment relationship remained possible throughout all of the sexual communications until [Flor] first withdrew his romantic and sexual interest in [Chavez] and then, the assistantship opportunity.” Id. at 21; see UMF 27. The OEO further indicated it was prepared to find that Flor retaliated against Chavez in violation of Policy 2740. Doc. 191-3 at 22; UMF 25. Flor was given five business days to submit additional information for the OEO to consider prior to issuance of its final determinations. UMF 28; see Doc. 191-3 at 22. Both Flor and Chavez submitted supplemental evidence, but the OEO did not credit those materials. UMF 29. It determined that
The OEO ultimately issued its Final Letter of Determination (“FLOD“) regarding the Chavez Complaint. UMFs 29-30; see generally Doc. 191-4. It definitively concluded Flor violated Policy 2740 by engaging in quid pro quo sexual harassment and retaliation. UMF 31; Doc. 191-4 at 1, 4. Flor exercised his right to appeal the decision to the University President—who denied the request—and then to the Board of Regents, who also declined to consider the matter. UMFs 33-34; Doc. 191-5.
C. Policy 2215 Investigation
Because the OEO found Flor violated Policy 2740, the University administration began a separate investigation of Flor for potential violations of University Policy 2215, which governs consensual relationships and conflicts of interest of all faculty, staff and students.6 UMFs 5, 41; see Doc. 191-1 at 7-9. Initially, Rogers was assigned as the investigator, UMF 41, but she was later removed from that role after Chavez sent the University administration an email accusing Rogers of failing to report Flor‘s actions on Chavez‘s behalf.7 UMFs 47-48; see Doc. 191-1 at 8 ¶ 4 (outlining third-party reports regarding these relationships). Michelle Arthur, the Department
D. Discipline and Sanctioning under Policy C07
University Policy C07 provides the disciplinary processes and procedures for sanctioning tenured faculty, including a “warning, censure, suspension without pay, or dismissal.”9 UMF 4; Doc. 191-1 at 3 ¶ 2; see id. at 3-6, 18. A faculty member‘s chair or dean typically initiates the disciplinary process, Doc. 191-1 at 4 ¶ 4, so Senior Vice Provost Barbara Rodriguez assigned Rogers (Flor‘s department chair) to determine the appropriate discipline. UMF 17, 37.
Rogers drafted a sanction requiring Flor to discontinue personal communications with students through his personal cell phone or e-mail account. Doc. 198-11 at 3 (87:8-14). Rogers shared this plan with the University‘s Title IX coordinator, Angela Catena.10 UMFs 38-39, 43-44; Doc. 191-11 at 5 (87:4-14). Catena had some concerns about Rogers‘s proposal. Doc. 191-12 at 5 (87:15-88:3). Specifically, she was worried the contemplated discipline would be ineffective, was
Around the same time, questions about Rogers‘s impartiality began to surface. This was due, in part, because Rogers initiated the Flor Complaint and challenged the accuracy and validity of the OEO‘s conclusions in the Chavez Complaint. See UMFs 17, 50-51. Moreover, Chavez had voiced concern that Rogers‘s participation was a conflict of interest. See UMF 51; Doc. 191-11 at 4 (9:5-20). Based on these issues, Rodriguez determined Rogers had a conflict of interest that prevented her from fairly sanctioning Flor. UMF 49. So, just as she had been removed from the Policy 2215 investigation, Rogers was relieved of her duty as the sanctioning officer under Policy C07. UMFs 47, 51.
Policy C07 does not provide guidance in the case where the relevant chair or dean has a conflict of interest. See generally Doc. 191-1 at 3-6. The policy does, however, expressly permit a program director, associate dean, or vice dean in a “non-departmentalized school or college” to act as the sanctioning party. Id. at 4 ¶ 5. Accordingly, Rodriguez began considering other University faculty to replace Rogers. Vice Dean Camille Carey (now Dean) of the University‘s School of Law was ultimately selected to serve as the sanctioning official.11 UMF 53.
In that capacity, and prior to reaching a final conclusion, Carey permitted Flor to submit an impact statement. UMF 54. Carey also shared a draft of her proposed sanctions with Rodriguez and Catena for review.12 UMF 56. Following some revisions, which reduced the severity of the
E. Flor‘s Media Articles and Chavez‘s OEO Retaliation Complaint
After learning of his suspension, Flor contacted the Foundation for Individual Rights in Education (“FIRE“) and shared information about the OEO investigation. UMFs 76-78; see Doc. 198-20 (e-mails sharing OEO documents). Flor also contacted Reason, a self-described libertarian online magazine, to further circulate information regarding purported due process violations. UMFs 80, 81. Reason then published an article about Flor and Chavez‘s relationship (without identifying Chavez) and the University‘s disciplinary process. UMF 82. Chavez filed a complaint for retaliation with the OEO against Flor regarding this media coverage. Id. The OEO found that Flor had not violated any University policies by contacting the media. UMF 83; see Doc. 198-21 at 2-3.
F. Flor‘s Appeal of Carey‘s One-Year Sanction
Flor appealed his suspension and related discipline to the University‘s Peer Hearing Panel (“the Panel“). See UMFs 65, 70; Doc. 198-18 at 1. Pursuant to Policy C07, Defendant Stephen Bishop, Chair of the Faculty Ethics Committee, selected two faculty volunteers from the Faculty Ethics Committee and one person appointed by the University Provost‘s office to serve on the Panel. UMFs 65, 67; Doc. 191-1 at 5 ¶ 11. Defendants Broidy, Lau, and High served as the Panel members. Doc. 191-7 at 1. They were tasked with upholding or reversing the suspension. UMF 67. Flor understood the Panel would not consider the correctness of the OEO‘s factual findings and conclusions nor would the Panel reopen the OEO investigation. UMF 68; see Doc. 191-1 at 5-6. Instead, consistent with Policy C07, the Panel addressed the following issues: “1) Procedural Questions – Was the sanctioning process consistent with relevant University policy? Were there
At the hearing, Flor was accompanied by his attorney. UMF 70. While his counsel was precluded from intervening, Flor was permitted to consult with him during the proceedings. Id.; Doc. 198-17 at 2 (44:11-45:8). Flor was afforded the opportunity to present evidence and witnesses testimony at the hearing—including evidence from the OEO investigative file—but he was required to demonstrate how those proffers were relevant. UMF 72; Doc. 198-18 at 3-4. He did not do so. UMFs 74-75. Consequently, the Panel did not examine the OEO allegations and investigations, and that evidence did not form a basis for the Panel‘s decision. UMF 73. The Panel also did not consider the University‘s investigation under Policy 2215. Id. Ultimately, the Panel upheld Flor‘s sanction. UMF 69; Doc. 191-7 at 8.
II. Procedural Background
Flor filed his first complaint in the Second Judicial District Court of the State of New Mexico, which was subsequently removed to this Court. UMFs 84-85; Docs. 1, 1-1. His suit initially named the University, the Board of Regents, University President Garnett Stokes, Carey, then-OEO Director Francie Cordova, Catena, Cliffe, Associate University Counsel Emma Rodriguez, and Gick as defendants. Doc. 1 at 5-8. These defendants removed to this Court based on federal question jurisdiction. Id. at 2 ¶ 3 (citing
Shortly thereafter, Flor filed his First Amended Complaint (“FAC“). See generally Doc. 17. He removed Stokes, Cordova, and Rodriguez as defendants and named the Board of Regents, Carey, Catena, Cliffe, and Chavez instead. See generally id. The University, Carey, Catena, and Cliffe moved to dismiss Flor‘s claims regarding procedural due process, breach of contract, and
Flor complied and filed his Second Amended Complaint (“SAC“), naming the Board of Regents alongside Bishop, Broidy, Gick, High, Lau (collectively “Employee Defendants“), and Chavez. See Doc. 68. The new pleading included additional causes of action: (I) violation of the Due Process Clause and
Subsequently, Employee Defendants, acting in their individual capacities, moved for summary judgment on Counts I, II, and III. UMF 95; see generally Doc. 79. United States District Judge James A. Parker granted that motion in part and denied it in part. See generally Doc. 94. Specifically, he granted summary judgment as to Count I—concluding qualified immunity precluded suit—and dismissed Flor‘s Section 1983 claim without prejudice. Id. at 35, 39; UMF 96. As to Count II, the Court held that Flor‘s claim for injunctive relief was “a form of remedy, not a standalone claim,” granted dismissal with prejudice, and noted Flor was “not precluded from obtaining injunctive relief as a remedy should he prevail on a claim for which injunctive relief is available.” Doc. 94 at 35, 37, 40. Lastly, Judge Parker denied Employee Defendants’ arguments
Now, as detailed below, Defendants’ Motion seeks summary judgment on Counts III-VI. Doc. 191. The Court ordered the parties to file supplemental briefing to clarify their positions on Title IX in light of the Tenth Circuit‘s decision in Doe v. University of Denver (Doe II), 1 F.4th 822, 829 (10th Cir. 2021), and how that holding bears on the issues raised in the parties’ summary judgment briefs. Doc. 217. Both parties complied. Docs. 221, 222.
LEGAL STANDARD
“Summary judgment is a drastic remedy and should be granted only with caution.” McGill v. Am. Land & Expl. Co., 776 F.2d 923, 926 n.5 (10th Cir. 1985) (citation modified). To that end, the Court examines the factual record and draws all reasonable inferences in the light most favorable to the nonmoving party. EFLO Energy v. Devon Energy Corp., 66 F.4th 775, 787 (10th Cir. 2023). “Where different ultimate inferences may properly be drawn, the case is not one for a summary judgment.” Seamons v. Snow (Seamons II), 206 F.3d 1021, 1026 (10th Cir. 2000) (quotation omitted). “[T]he movant is entitled to judgment as a matter of law” only when “there is no genuine dispute as to any material fact[.]” Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quotation omitted); see
[A] party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute.
DISCUSSION
University Defendants seek summary judgment on Flor‘s declaratory judgment (Count III), state law (Counts IV & V), and Title IX (Count VI) claims. See Doc. 191 at 1. Because the Title IX claims implicate the breadth of the factual and legal analysis required in this case, the Court begins its analysis there. The Court then turns to Flor‘s remaining state law claims for breach of contract and breach of the covenant of good faith and fair dealing. Finally, the Court disposes of Flor‘s remaining claim for declaratory relief.13
I. Count VI: Gender discrimination and retaliation under Title IX
Title IX requires that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]”
Flor bases his Title IX claims on these discrimination and retaliation standards. See Doc. 68 at 36-39. To prevail, Flor must establish that he was “excluded from participation in, denied the benefits of, or subjected to discrimination in an educational program” that receives federal funding and “the exclusion from the program was on the basis of gender.” Doe v. Univ. of Denver (Doe I), 952 F.3d 1182, 1190 (10th Cir. 2020) (quoting Seamons v. Snow (Seamons I), 84 F.3d 1226, 1232 (10th Cir. 1996)). There is no dispute that Flor‘s suspension excluded him from participating in the University‘s educational programs and that the University receives federal funding. UMF 2. The relevant question is whether Flor has created a factual dispute that the University‘s investigation and decision to suspend him were motivated by gender bias.
“Where a Title IX plaintiff relies on indirect proof of discrimination, [the Court applies] the three-part burden-shifting framework announced in McDonnell Douglas.” Doe II, 1 F.4th at 829 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The first step requires a plaintiff establish a prima facie case of discrimination or retaliation by showing the plaintiff‘s sex was a motivating factor in the university‘s disciplinary action. Id. at 829 (sex discrimination claim); Fye v. Okla. Corp. Comm‘n, 516 F.3d 1217, 1225 (10th Cir. 2008) (retaliation claim). The burden then shifts to the defendant “to articulate a legitimate, nondiscriminatory [or nonretaliatory] reason for the adverse action.” Bird, 832 F.3d at 1200 (quotation omitted). If the defendant satisfies
A. Flor‘s Prima Facie Gender Discrimination Claim
At the summary judgment phase, the central inquiry for a Title IX discrimination claim is: “Could a reasonable jury—presented with the facts alleged—find that sex was a motivating factor in the University‘s disciplinary decision?” Doe II, 1 F.4th at 830. A plaintiff may establish a prima facie discrimination case under that question alone but may also use the “erroneous outcome” and “selective enforcement” frameworks to demonstrate that sex was a motivating factor in the school‘s decisions.14 Id. The erroneous outcome theory requires a plaintiff to show facts that cast doubt on the outcome of the disciplinary proceedings and “a particularized causal connection” between that outcome and the school‘s gender bias. Id. (citing Yusuf, 35 F.3d at 715). In contrast, the selective enforcement theory focuses on disparate application—Flor must show “that a similarly-situated member of the opposite sex was treated more favorably” on the basis of her gender. Id. (quoting Doe v. Univ. of Dayton, 766 F. App‘x 275, 284 (6th Cir. 2019)). To satisfy Doe II‘s more holistic inquiry, Flor may rely on external factors, including statistical evidence of systematic discriminatory conduct giving rise to “a fair inference of anti-male bias.” Id. at 834-35.
Ultimately, a plaintiff‘s goal is to prove a plausible inference of sex discrimination. See Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019). The Tenth Circuit recognizes that procedural irregularities in university disciplinary proceedings can raise a colorable inference of gender bias. See Doe II, 1 F.4th at 831 (collecting cases). These irregularities can include the length of the investigatory and sanctioning period compared to those contemplated by policy, the failure of hearing panels to review contradicting evidence, failure to apprise the plaintiff of the allegations or present a defense, and disproportionately harsh punishments. See, e.g., Doe v. Oberlin Coll., 963 F.3d 580, 586-88 (6th Cir. 2020) (finding “clear procedural irregularities” including a 120-day investigation, failure to inform the plaintiff of the allegations against him, and the panel reaching a decision 180 days longer than contemplated by policy); Doe I, 952 F.3d at 1197-1199 (looking to university policy for expulsion data, types of violations of non-consensual sexual contact on record, and whether investigators only evaluated the complainant‘s evidence); Holmstrom v. Univ. of Tulsa, No. 22-CV-0408, 2023 U.S. Dist. LEXIS 79478, at *3 (N.D. Okla. May 8, 2023) (detailing the plaintiff‘s allegations of procedural irregularities); Brown-Smith v. Bd. of Trs. of the Univ. of N. Colo., No. 20-CV-03271, 2021 U.S. Dist. LEXIS 125056, at *21-22 (D. Colo. July 6, 2021) (evaluating plaintiff‘s allegations of admissions and inconsistencies in sexual assault complaint and anti-male bias). But while dubious disciplinary proceedings should be countenanced, Title IX should not be construed “to impair the independence of universities” in meting out discipline. See Yusuf, 35 F.3d at 715. The Tenth Circuit recognizes that “[a] few procedural irregularities . . . are not necessarily uncommon or even all that troubling. After all, sexual-misconduct investigations and proceedings will not be perfect.” Doe I, 952 F.3d at 1201
For purposes of summary judgment, University Defendants must establish the undisputed facts negate these theories and the overarching framework adopted in Doe II. Given that Flor expressly pled erroneous outcome and selective enforcement claims in his SAC and analyzes Doe II‘s holistic inquiry in his summary judgment briefing, the Court analyzes his claims through the lens of applicable case law to determine whether a reasonable jury could find a prima facie case of discrimination in his favor. See Doc. 68 at 37 ¶ 284 (erroneous outcome), 39 ¶ 294 (selective enforcement); Doc. 198 at 31; see generally Docs. 221, 222 (evaluating Doe II‘s application to this case).
1. Erroneous Outcome
The two-prong erroneous outcome theory requires Flor to set forth facts (1) casting “some articulable doubt on the accuracy of the disciplinary outcome,” and (2) demonstrating “a particularized causal connection between the flawed outcome and gender bias.” Doe II, 1 F.4th at 830 (quoting Yusuf, 35 F.3d at 715). Procedural irregularities bear on the first prong of the erroneous outcome test because the results of a proceeding depend on the proper application of disciplinary procedures. See Ruff v. Bd. of Regents of the Univ. of N.M., 272 F. Supp. 3d 1289, 1298 (D.N.M. 2017) (noting evidentiary weaknesses like “motive to lie,” “strengths of the defense,” “procedural flaws affecting the proof,” or “reason to doubt the veracity of the charge” are evidence of erroneous outcome). Once an inference of gender bias arises (e.g., through procedural irregularities), the plaintiff may establish a causal link to gender bias by showing that “statements by members of the disciplinary tribunal, statements by pertinent university officials,
University Defendants argue Flor cannot show that different procedures would have led to a more favorable outcome or establish the requisite causal link. Doc. 191 at 22. They note that Flor received adequate due process in the disciplinary proceedings and thus cannot show actionable deficiencies or gender bias. See id. at 24-27. Flor disputes that reasoning, arguing that there were significant procedural irregularities which arose due to gender bias, and tainted the investigatory, disciplinary, and sanctioning processes. See Doc. 198 at 31-34.
The Court looks first to the various University policies and procedures that governed Flor‘s sexual harassment investigatory and disciplinary proceedings. Broadly, Flor was subject to the Faculty Handbook. UMF 3; see UNM Faculty Handbook, UNM, available at https://handbook.unm.edu/policies/ (last accessed August 26, 2025). Policy C07 of the Handbook sets out the procedures for addressing faculty misconduct. UMF 4; Doc. 191-1 at 3-6. Also relevant is the University‘s Administrative Procedures Manual, which prohibits sexual misconduct and defines the role of the University‘s Title IX Coordinator at Policy 2740. UMF 8; Doc. 191-1 at 10-11. Policy 2740 overlaps with Policy C07: sexual harassment allegations against a faculty member are investigated in accordance with Section 13 of Policy 2740, and if the investigation results in a finding that the faculty member committed any form of sexual harassment, disciplinary action
To meet that standard, Flor points to procedural defects that, in his view, render his disciplinary outcome erroneous. He first contends that the University failed to perform a “welcomeness analysis” during its investigation of the Chavez Complaint. Doc. 198 at 32. This argument springs from Policy 2740‘s definition of sexual harassment as ”unwelcome conduct of a sexual nature[.]” Doc. 191-1 at 10 ¶ 1. Flor contends that the University‘s investigation discounted the fact that Chavez welcomed and reciprocated Flor‘s lascivious communications and reached an erroneous conclusion that Flor engaged in “unwelcome” sexual conduct. See Doc. 198 at 31-32. The initial problem for Flor is his briefing does not adequately explain what “welcomeness analysis” the OEO purportedly did not conduct, nor does he show (by citation to the record) how the OEO should have conducted that analysis.16 See, e.g., id. at 16 (Additional Fact F complaining of lack of “welcomeness analysis” without further explanation). Flor‘s guidance on this subject is crucial because Policy 2740 repeatedly uses “unwelcome” to define whether conduct constitutes sexual harassment. As outlined above in Section I.A., the applicable version of Policy 2740 broadly defined “sexual harassment” as ”unwelcome conduct of a sexual nature.”17 Doc. 191-1 at 10 ¶ 1 (emphasis added). That section then bisects sexual harassment into either quid pro quo or
Notwithstanding the lack of support in Flor‘s briefing, the Court looks to the merits of the two complaints. The Flor Complaint centered on Chavez‘s alleged creation of a hostile work environment. Doc. 22-3 at 15. The Chavez Complaint concerned quid pro quo sexual harassment and retaliation. Doc. 191-3 at 20-21. This difference is key and leads to another issue for Flor: the OEO investigator did conduct a welcomeness analysis when reviewing Flor‘s complaint. It did so by analyzing the power differential inherent in student-faculty relationships. See UMF 32. And there is nothing unusual about the OEO‘s approach. University policy explicitly recognizes that sexual relationships between superiors and subordinates in the educational context “can lead to charges of sexual harassment and exploitation[.]” Doc. 191-1 at 7 ¶ 1.18 Accordingly, a
In the Chavez Complaint PLOD, the OEO recognizes the “inherent power differential” between Flor and Chavez which made it difficult to determine whether Chavez consented to Flor‘s communications. Doc. 191-3 at 21. The PLOD acknowledged that while Chavez was never Flor‘s student, Flor “possessed considerable authority” in Chavez‘s graduate program and had offered Chavez a potential employment opportunity. Id. This power imbalance was the key factor in finding that Flor violated Policy 2740 and informed the PLOD‘s consent-based analysis. Id. As a tenured faculty member, Flor had significant authority in his department and “inherent power . . . to affect [Chavez‘s] employment (existing and potential) and possibly, her education at UNM.” Id.; see also UMFs 27, 32. Chavez, as a graduate student, had comparatively little. See UMFs 27, 32. That dynamic supports the PLOD‘s conclusion that “[a] reasonable college student in [Chavez‘s] position would feel pressure to please a person in [Flor]‘s professional position.” Doc. 191-3 at 21. Put differently, the power imbalance raised reasonable doubts about the welcomeness of Flor‘s conduct. Accordingly, the OEO‘s investigation undertook a “welcomeness analysis” and determined that Flor‘s conduct violated the prohibition on unwelcome sexual conduct. Flor‘s argument to the contrary is unavailing and unsupported by citations to the record.
Next, Flor disputes the integrity of the sanctioning process under Policy C07. See Doc. 198 at 32-33. He points to the following: (1) Catena‘s review of Rogers‘s proposed draft sanction, (2) Rodriguez‘s removal of Rogers as the sanctioning party due to a purported conflict of interest, and
Regarding Catena‘s review of Rogers‘s draft sanction, Flor has not identified any policy provision that prohibited such review. Flor states that Policy C07 makes no mention of the Title IX Coordinator but has not provided evidence that Catena‘s review and disapproval of Rogers‘s proposed sanction was impermissible under Policy C07 or any other applicable procedure.20 Id. at 7.
As to the removal of Rogers as the sanctioning officer, Policy C07 does not outline any means for resolving a conflict-of-interest and Flor does not identify any provisions providing clarity on the matter. See Doc. 191-1 at 3-6. To the contrary, he admits Policy C07 contained “no provision regarding recusal or remand of a department chair” when imposing a sanction. Doc. 198 at 9. Moreover, the parties agree Rodriguez removed Rogers for legitimate reasons, including her direct involvement with the Flor Complaint, her skepticism of the OEO investigation and decision, and Chavez‘s concerns about Rogers. UMFs 49-51; see Doc. 191-11 at 4 (9:5-20). Thus, replacing Rogers as the sanctioning officer is not a procedural irregularity, nor does it cast doubt on the accuracy of the disciplinary outcome in such a way that would support Flor‘s prima facie case of discrimination.
Lastly, Flor does not point to a policy that would prohibit Berman from ratifying Flor‘s sanction nor does he otherwise identify a procedural irregularity. Doc. 198 at 32-33. He refers to a prior complaint Chavez filed against Berman, but Flor has neither supplied the contents of that complaint nor explained how it affected the ratification of his sanction. Id. Further, he does not connect Berman‘s actions with a deviation in the University‘s policies or procedures.
2. Selective Enforcement
To prove his selective enforcement theory, Flor must show that the University treated a similarly situated member of the opposite sex more favorably based on her gender. See id. Flor claims the OEO treated Chavez more favorably when investigating their respective complaints. Doc. 198 at 31-33. Initially, Flor argues that OEO conducted a welcomeness analysis when evaluating the Chavez Complaint and failed to do so for him. Id. at 32. University Defendants contend that Flor‘s position is meritless because the two complaints are incomparable, Doc. 208
As already discussed, Flor‘s argument that the University failed to conduct a welcomeness analysis in its investigation of his conduct is unsupported by the record. Even assuming otherwise, Flor cannot demonstrate that the two investigations establish selective enforcement. Flor and Chavez had different roles in the university system and were not similarly situated: Flor was (and is) a tenured professor while Chavez was a graduate student. See UMF 18. The University would understandably treat the two differently because faculty and students are subject to different university standards and policies. For instance, Flor‘s sanctioning process was controlled by Policy C07 of the Faculty Handbook, UMF 4, Doc. 191-1 at 3-6; whereas Chavez was subject to discipline under the University‘s Student Code of Conduct. Doc. 191-1 at 18. Flor cannot establish that he and Chavez were similarly situated individuals, as is required to prevail on a Title IX selective enforcement claim. On this ground alone, Flor‘s argument fails.
Further, Flor and Chavez alleged different kinds of sexual harassment, thereby necessitating the application of different investigative standards. The Chavez Complaint asserted Flor engaged in quid pro quo sexual harassment and retaliation. Doc. 191-3 at 20-21. This claim focused on the inherent power imbalance between the two. See id.; UMF 27. In contrast, the Flor Complaint concerned whether Chavez sexually harassed Flor by creating a hostile work environment. See Doc. 22-3 at 15. In assessing this claim, and per policy, the OEO considered the effect of the conduct on the victim (i.e., the welcomeness of the conduct), whether a reasonable person would find the conduct objectively offensive, and four specific factors related to the nature of the conduct and the parties involved. Doc. 191-1 at 11. In other words, while Flor and Chavez‘s complaints were based on the same basic facts, their resolution required application of different
3. Doe II‘s Holistic Inquiry
The undisputed facts establish that Flor cannot prevail on his erroneous outcome and selective enforcement theories. The Court‘s inquiry, however, does not end there. As Flor notes, the Tenth Circuit applies a holistic approach in evaluating Title IX claims—that being, whether a reasonable jury could find that sex was a motivating factor in the disciplinary outcome. Doc. 198 at 30 (citing Doe II, 1 F.4th at 830); Doc. 221 at 2-4. Flor attempts to answer that question in the affirmative. The Court is again unpersuaded.
Alongside the asserted procedural irregularities, Flor argues the University was under “significant pressure to appear tough on gender discrimination because the United States Department of Justice” was monitoring the University‘s compliance with Title IX which, in turn, affected the investigatory and sanctioning processes. Doc. 198 at 33-34.22 The contention is partially true. Beginning in late 2016, the United States Department of Justice (“DOJ“) initiated oversight of the University because it “failed to properly respond to, investigate, and carry out its responsibilities under Title IX.” Doc. 198 at 18-19; see generally Agreement between the United States Department of Justice and the Board of Regents of the University of New Mexico, https://www.justice.gov/opa/file/903306/download (Oct. 17, 2016) (last accessed Aug. 26, 2025). But external pressure does not, by itself, establish bias against male respondents. See, e.g., Doe I,
Flor also references statistical evidence to support his claims of gender bias. He posits that the University disproportionately punished men when conducting multiple investigations for allegations of Title IX violations from 2016 until the time of the University‘s interrogatory responses. Doc. 198 at 14 (citing Doc. 198-22). He points to prior investigations and his personal interpretation of the results of those inquiries. Id.
While statistical patterns may provide useful context in ferreting out biases, the Tenth Circuit has “declined to infer anti-male bias from disparities in the gender makeup of sexual-misconduct complainants and sexual-misconduct respondents[,]” where the disparity may be explained by “alternative nondiscriminatory possibilities.” Doe II, 1 F.4th at 834 (citing Purdue Univ., 928 F.3d at 669). The statistical evidence must provide a clear causal link—a “particularized ‘something more‘“—to support an inference of gender bias. See Doe I, 952 F.3d at 1193, 1194 (“[A]t least in the discrimination context, the extent to which a discriminatory motive may be
Doe I and Doe II provide a useful contrast in defining the “something more” required in this context. In Doe I, statistical evidence showing that the vast majority of sexual assault complainants at a university were women did not establish systematic bias because the university had no control over the gender makeup of complainants and respondents. Id. at 1194. In Doe II, the plaintiff produced evidence that the university investigated complaints brought by women at much higher rates than those filed by men. See 1 F.4th at 835. This disparity suggested an anti-male bias because the choice to investigate a case was a “highly discretionary” decision within the university‘s control. Id. Taken together, Doe I and Doe II suggest that when evaluating statistical evidence, the salient consideration is whether gender-based discrepancies arise from the discretionary actions of university officials as opposed to disparate treatment in addressing sexual assault complaints.
Here, Flor provides nine cases that were reported by women, two by men, and one by an “unspecified source.” Doc. 198-22 at 1-4. In five of the cases reported by women, no policy violation was found. Id. These statistics are insufficient to establish the particularized evidence of gender bias required to support a Title IX claim under Doe I and Doe IIDoe I, 952 F.3d at 1194.
Based on the foregoing, the Court finds that Flor has not shown substantial procedural irregularities in the investigative, disciplinary, or sanctioning processes that, when paired with external pressure or statistical evidence, raise a colorable inference the University discriminated
Similarly, when viewing the facts in the light most favorable to Flor, a reasonable jury could not find that his gender was a motivating factor in the University‘s investigatory or disciplinary process. Therefore, he cannot establish a prima facie case for gender discrimination under these three Title IX frameworks. Because Flor‘s case does not survive the prima facie analysis, the Court does not evaluate the second and third McDonnell Douglas factors. The Court will enter summary judgment in favor of the Board and dismiss Flor‘s claim for gender discrimination under Title IX with prejudice.
B. Flor‘s Prima Facie Retaliation Claim
University Defendants argue the evidence does not support Flor‘s Title IX retaliation claim and it fails as a matter of law. Doc. 191 at 30-31. Specifically, they maintain there were valid, nondiscriminatory reasons for the OEO to investigate Flor‘s decision to disclose information regarding the investigatory process with media sources. Id. The Court agrees.
To prove a Title IX retaliation claim, the plaintiff must establish facts showing the defendants took adverse action against him because of complaints of sex discrimination. Jackson, 544 U.S. at 184 (stating a plaintiff would “have to prove that the [defendant] retaliated against him because he complained of sex discrimination“); Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017) (“Title IX . . . prohibits retaliation against individuals because they have complained of sex discrimination.“). The Tenth Circuit has not considered whether a person accused of sexual misconduct may state a Title IX retaliation claim, but other courts have expressed doubts. See, e.g., DuBois v. Bd. of Regents of Univ. of Minn., 987 F.3d 1199, 1205 (8th Cir. 2021) (“No part of Title IX designates participation in a sexual harassment investigation on the side of the accused as protected activity.“); Doe v. Belmont Univ., 367 F. Supp. 3d 732, 757 (M.D. Tenn. 2019) (“[M]erely defending an allegation of misconduct is as different from actively opposing or complaining of unlawful discrimination as day is to night; the former involves affirming that one has not committed wrongdoing, while the latter rests on the notion, real or perceived, that one has been on the receiving end of or has opposed wrongdoing in the form of illegal discrimination.“).
Flor alleges that after he filed this case, the University retaliated against him by launching an additional OEO investigation of him due to the press coverage of this lawsuit. Doc. 68 at 39 ¶ 295. Despite this allegation in the SAC, Flor does not respond to University Defendants’ arguments for summary judgment nor provides additional facts to rebut their contentions. See generally Doc. 198. Specifically, as the University Defendants note, it was Chavez—not the University Defendants—who initiated the second OEO complaint after Flor contacted both FIRE and Reason. UMF 82. Further, the OEO investigated and ultimately absolved Flor of any wrongdoing. UMF 83. Flor points to no evidence demonstrating that this process resulted from unlawful retaliatory motives. It is therefore undisputed that University Defendants did not retaliate against Flor and judgement will be entered in favor of the Board. See Rohrbaugh, 53 F.3d at 1183.
The Board argues the University (acting through its employees and agents) complied with its policies, particularly Policy C07, and it is that directive which governs faculty discipline.24 Doc. 191 at 19; see Doc. 191-1 at 3-6; Doc. 68 at 25 ¶¶ 198-99 (alleging violations of Policy C07). Flor sees it differently, arguing the University breached paragraph 5 of Policy C07 when Rodriguez (1) removed Rogers as his sanctioning authority; and (2) appointed Carey in Rogers‘s place, instead of another department head within Anderson. Doc. 198 at 26-27 (citing Doc. 191-1 at 4 ¶ 5).25 But Flor misreads Policy C07‘s terms.
It provides, in relevant part:
References to the department chair in this policy also include the program director or associate or vice dean in a non-departmentalized school or college. If allegations are made against a department chair or other administrator, the next higher academic authority shall perform the functions assigned in this Policy to the chair, and the provisions shall be modified as appropriate.
Moreover, as explained above, Rogers was excused from the process for reasons relating to Chavez‘s complaints against Rogers and her own concerns with the Flor Investigation. UMFs 47-51. Thereafter, Rodriguez adhered to Policy C07 while searching for a replacement. She contacted several other department heads, but many of these people had a conflict that prevented them from participating. UMF 52. Ultimately, she appointed Carey, the Vice Dean of the University‘s School of Law, as the sanctioning official. UMF 53; see Doc. 191-1 at 5 ¶ 5 (providing a vice dean could take the place of a department chair). This process was consistent with paragraph 5‘s flexible approach to determining an appropriate official to conduct the proceedings. Accordingly, Rodriguez did not shirk her responsibilities under Policy C07.
Flor also contends that the University could have appointed a different authority from the Anderson, namely Interim Dean Berman. Doc. 198 at 26. But Berman would not have been an appropriate authority under Policy C07‘s terms. In the disciplinary process, a department chair—or vice dean in a non-departmentalized school—must make a written decision regarding the faculty member‘s discipline, which needs to be approved by the appropriate dean. Doc. 191-1 at 5 ¶ 8; see
Flor next argues the University violated Policy C07 when Catena reviewed Rogers‘s draft sanction because neither Policy C07 nor Policy 2740 allowed such action.26 Doc. 198 at 27. Flor is correct in that the policies do not outline Catena‘s role in the sanctioning process. That begs the question, however, how could the University have violated non-existent policies and, as a corollary, breached its contract with Flor? He does not provide an answer to this question.27 Accordingly, the Court finds Flor has not established a breach of Policy C07.
In Count V of the SAC, Flor alleges the Board breached the covenant of good faith and fair dealing implied in all New Mexico contracts. Doc. 68 at 36 ¶ 275-78. But Flor may not maintain a cause of action for a breach of the implied covenant of good faith and fair dealing because the Court has granted Defendants’ summary judgment motion with respect to Flor‘s breach of contract claim. Gonzalez-Aller v. N. N.M. Coll., No. CV 11-105, 2012 U.S. Dist. LEXIS 208921, at *22 (D.N.M. Sept. 17, 2012); see also Smoot v. Physicians Life Ins. Co., 2004-NMCA-027, ¶ 13, 87 P.3d 545 (“The implied covenant is breached only when a party seeks to prevent the contract‘s performance or to withhold its benefit from the other party.” (citation modified)). A contractual breach is a necessary predicate to find a violation of the covenant of good faith and fair dealing. Accordingly, judgment on Count V shall be entered in favor of the Board and is dismissed as well.
IV. Count III: Declaratory Judgment
The Court next addresses Flor‘s request for declaratory relief. See Doc. 68 at 33-34 ¶¶ 259-267. He seeks declarations that three separate aspects of the University proceedings deprived him of his protected property and liberty interests without due process. See id. ¶¶ 261-63. The federal
Even if that were not the case, the Court finds that Flor‘s requested declaratory judgment relief is now moot.28, 29 It is undisputed Flor returned to his position as a tenured professor and currently teaches his usual courseload at the University. UMFs 18, 19; Doc. 191-8 at 1 (7:2-8), 2 (12:16-22) (Flor Deposition). Prior to his return, the University amended its policies and procedures governing sexual harassment proceedings, including the investigative process. See Doc. 191-1 at 2 ¶ 8; Doc. 198 at 16. Flor argues these revised policies present an ongoing controversy and the possibility of future, discriminatory investigations. Doc. 198 at 22-23. Yet, he does not allege or offer evidence of pending or anticipated disciplinary actions against him, nor identify how this Court‘s declarations would result in real-world impacts on the University. Simply put, Flor does not provide the requisite showing of a controversy necessary to obtain a declaratory
In the end, the Court has dismissed all substantive claims for relief against University Defendants or entered summary judgment in their favor. As there is no independent federal cause of action, Flor is not entitled to the requested declaratory relief. And even if Flor substantiated this third cause of action with a federal claim, the issue is moot. See Atlas Biologicals, Inc. v. Kutrubes, 50 F.4th 1307, 1329 (10th Cir. 2022) (“[F]ederal courts can issue declaratory judgments if there is an actual dispute between adverse litigants and if there is a substantial likelihood that the favorable federal court decision will bring about some change.” (citation omitted)). Therefore, Count III of the SAC is dismissed.
V. Remand of Count VII
As a result of the Court‘s rulings, Count VII—for malicious abuse of process against Chavez—is the sole cause of action remaining. Doc. 68 at 39-40 ¶¶ 299-305. In a civil action in which the district court has original jurisdiction—such as a federal question,
CONCLUSION
For the foregoing reasons, University Defendants’ Motion for Summary Judgment, Doc. 191, is granted. The Court enters summary judgment in favor of University Defendants as to Counts IV, V, and VI. Count III is dismissed with prejudice.
Lacking a federal cause of action and given this Court‘s declination to extend supplemental jurisdiction over the remaining state law claim, this case is hereby remanded to the Second Judicial District Court in Bernalillo County for the State of New Mexico pursuant to
It is so ordered.
UNITED STATES DISTRICT JUDGE
MATTHEW L. GARCIA