Christopher Keating v. University of South Dakota, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Pasco M. Bowman and Bobby E. Shepherd (UNPUBLISHED) [4171247] [13-3405]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3405
___________________________
Christopher Keating
lllllllllllllllllllll Plaintiff - Appellee
v.
University of South Dakota; James Abbott; Royce Engstrom; Donald Dahlin;
Matthew Moen; Timothy Heaton; Christina Keller; South Dakota Board of
Regents; Mike Rounds
lllllllllllllllllllll Defendants - Appellants
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: May 16, 2014
Filed: July 2, 2014
[Unpublished]
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Before GRUENDER, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
The University of South Dakota, the South Dakota Board of Regents, James
Abbott, Royce Engstrom, Donald Dahlin, Matthew Moen, Timothy Heaton, Christina
Keller, and Mike Rounds appeal the district court’s grant of declaratory relief in favor

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of Christopher Keating on his claim that a provision in the university’s employment
policy is unconstitutionally vague. For the reasons described below, we reverse.
Keating joined the university’s faculty as a tenure-track physics professor in
1999. The only other full-time physics professor was Dr. Christina Keller, the
program director and Keating’s immediate supervisor. Over time, Keating and
Keller’s working relationship became highly strained. In the fall of 2003, Keating
filed a formal grievance against Keller with their department head, Dr. Timothy
Heaton. Around the same time, Keller accused Keating of sexually harassing her.
Heaton investigated both claims and ultimately concluded that Keating’s claim lacked
merit. During his investigation, Heaton met with Keating at least twice. Keating
admits that, during the first meeting, he “became quite angry” with Heaton. After
Heaton issued an initial report disagreeing with Keating’s claim, Keating had a
second meeting with Heaton, during which Keating interrupted Heaton and “warned”
him that pursuing Keller’s accusations of sexual harassment “would make the
situation extremely serious.”
Later that academic year, Heaton sent an email message instructing Keating
that “if you know something needs to be approved by [Keller], . . . then it would be
better to approach [Keller] or me directly.” Keating responded by email:
I came to you with a problem and you made it infinitely
worse. Your actions have caused permanent damage to my
relationship with the two of you. There is no way I can
trust you with another problem. I cannot communicate
with Dr. Keller because she is a lieing [sic], back-stabbing
sneak.
Following the 2003-2004 academic year, Keating was informed that his employment
contract with the university had not been renewed because his email had violated a
section of Appendix G of the university’s employment policy that provides:
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Faculty members are responsible for discharging their
instructional, scholarly and service duties civilly,
constructively and in an informed manner. They must treat
their colleagues, staff, students and visitors with respect,
and they must comport themselves at all times, even when
expressing disagreement or when engaging in pedagogical
exercises, in ways that will preserve and strengthen the
willingness to cooperate and to give or to accept
instruction, guidance or assistance.
Keating brought this lawsuit against the university and several of its employees and
administrators, alleging that the non-renewal of his contract and the enforcement of
Appendix G against him violated a variety of constitutional provisions. Although the
district court granted summary judgment in favor of the defendants on all but one of
these claims, it held that Appendix G’s “civility clause” was impermissibly vague, in
violation of the Due Process Clause of the Fourteenth Amendment, and granted
Keating declaratory relief on that issue. The defendants timely appealed the district
court’s grant of declaratory relief in favor of Keating.1
We review a constitutional challenge to a governmental policy de novo.
Planned Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889, 893 (8th Cir. 2012)
(en banc). A governmental policy is unconstitutionally vague if it “fails to provide
a person of ordinary intelligence fair notice of what is prohibited, or is so standardless
that it authorizes or encourages seriously discriminatory enforcement.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 18 (2010) (quotation omitted). When, as
here, an enactment does not impose criminal penalties, due process tolerates a lesser
degree of specificity than it would from a criminal statute. Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). “In the
1

In his brief, Keating argues at length that the district court erred in rejecting
his other claims. Because Keating did not file a cross-appeal contesting the adverse
grant of partial summary judgment, we do not consider his arguments regarding those
claims. See Gross v. FBL Fin. Servs., Inc., 588 F.3d 614, 621 (8th Cir. 2009).
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public employment context, . . . standards are not void for vagueness as long as
ordinary persons using ordinary common sense would be notified that certain conduct
will put them at risk of discharge.” San Filippo v. Bongiovanni, 961 F.2d 1125, 1136
(3d Cir. 1992). We consider in turn whether the civility clause is void for vagueness
facially or as applied to Keating’s specific conduct.
Appendix G’s civility clause is not facially void for vagueness. A
governmental enactment is facially void for vagueness only if it “is impermissibly
vague in all of its applications.” Hoffman Estates, 455 U.S. at 497. Although the
policy employs broad language, that alone does not necessarily prevent an ordinary
person from recognizing that certain conduct will result in discharge or discipline.
Other public-employment policies with similarly general discharge standards have
survived void-for-vagueness challenges. See, e.g., Arnett v. Kennedy, 416 U.S. 134,
159-61 (1974); San Filippo, 961 F.2d at 1137; Fowler v. Bd. of Educ., 819 F.2d 657,
664-65 (6th Cir. 1987); cf. Tindle v. Caudell, 56 F.3d 966, 973 (8th Cir. 1995). While
the district court focused exclusively on the policy’s use of the term “civility,” the
civility clause articulates a more comprehensive set of expectations that, taken
together, provides employees meaningful notice of the conduct required by the policy.
The outer contours of the civility clause perhaps are imprecise, but many instances
of faculty misconduct would fall clearly within the clause’s proscriptions, thus
precluding the conclusion that the policy is facially unconstitutional.
The civility clause also was not impermissibly vague as applied to Keating’s
specific conduct. Keating’s email must be considered within the broader context of
this case. As the supervisor of both Keating and Keller, Heaton sought to investigate
their dueling accusations while also ensuring that the department operated smoothly.
In his email, beyond describing Keller—a colleague who had accused him of sexual
harassment—as a “l[y]ing . . ., back-stabbing sneak,” Keating expressly refused to
comply with a direction from his supervisor. He also signaled an unwillingness to
participate with his supervisors collegially in the ongoing operation of the
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department, stating “[t]here is no way I can trust you with another problem” and “I
cannot communicate with Dr. Keller.” This rebuke followed an in-person meeting
with Heaton that Keating described as “heated” and in which Keating “became quite
angry.” Taken in this context, Keating reasonably should have recognized that his
email ran afoul of Appendix G’s requirements that faculty discharge their duties
“constructively,” treat one another “with respect,” and act “in ways that will preserve
and strengthen the willingness to cooperate.” As such, the civility clause was not
impermissibly vague as applied to Keating’s conduct.
For the foregoing reasons, we reverse the district court’s grant of declaratory
relief in favor of Keating.
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