Rushing v. Board of Supervisors of the University of Louisiana Systems (Southeastern Louisiana University) et al
Filing
122
ORDER as set forth herein re: 100 MOTION for Summary Judgment and/or MOTION to Dismiss. Signed by Judge Helen Ginger Berrigan on 12/5/11. (PLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DR. STEVEN RUSHING
CIVIL ACTION
VERSUS
NO. 06‐623
THE BOARD OF SUPERVISORS OF THE
UNIVERSITY OF LOUISIANA SYSTEM
(SOUTHEASTERN LOUISIANA UNIVERSITY),
ET AL
SECTION “C” (4)
ORDER
IT IS ORDERED that:
1.
The following claims were dismissed by the order of Judge Tyson dated
September 11, 2008:1
a.
Plaintiff’s claims against the Board of Supervisors for the University of
Louisiana System (“Board”) based on Eleventh Amendment immunity.
Judge Tyson’s order concerned claims made the Original, First Supplemental
and Amended and Second Amended Complaints. Rec. Docs. 1, 10, 43. The plaintiff
had sued the following defendants in their individual and official capacities: Dr. John
Crain (“Crain”), Provost and Vice President for Academic Affairs; Dr. David Evenson
(“Evenson”), Chair of the Department of Music; Dr. Hunter Alessi (“Alessi”),
Ombudsperson; and Dr. Tammy Bourg (“Bourg”), Dean of School of Arts and
Humanities. At the time of the order, Laverne Simoneaux, the President of the
Southeastern Louisiana University Faculty Senate had not been named a defendant.
Simoneaux was sued in her individual and official capacity in the Third Supplemental
and Amended Complaint, filed on June 30, 2009. Rec. Doc. 80.
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1
Rec. Docs. 62, 56 at 7‐8;2
b.
Plaintiff’s § 1983 claims against all defendants sued in their official
capacity for: prospective injunctive relief to conform to commands of state
law re: state contractual rights based on Eleventh Amendment immunity
and Ex Parte Young. Rec. Docs. 62, 56 at 10, 29;
c.
All of plaintiff’s § 1983 Fourteenth Amendment due process claims against
the defendants in their individual and/or official capacities with re: access
to the University grievance procedure based on issue preclusion.3 Rec.
Docs. 62, 56 at 11, 16‐18, 28, 30.
d.
All § 1983 claims against defendants in individual and/or official
capacities re: First Amendment retaliation claims concerning from claims
The plaintiff deleted and dismissed the Board in his Second Amended
Complaint filed on January 23, 2008. Rec. Doc. 43. It appears that the plaintiff is suing
the Board members in their official capacities only. Rec. Doc. 43.
2
This Court disagrees with the plaintiff’s characterization of Judge Tyson’s order
insofar as the plaintiff alleges that his claim for “equitable and injunctive relief
regarding his access to the grievance procedure” survived dismissal. Rec. Doc. 112 at 2.
The Court also recognizes that the plaintiff previously argued that the previous state
suit did not involve a Fourteenth Amendment liberty interest in the contractual
grievance rights when he objected to the Report and Recommendation of the Magistrate
Judge upon which Judge Tyson’s order is based. Rec. Doc. 57. As previously argued
by the defendants, the state law litigation referred to due process rights without
distinction as to property or liberty rights. Rec. Doc. 58. These objections were
considered by Judge Tyson when he dismissed the entire Fourteenth Amendment due
process claim based on denial of access to the grievance procedure. Rec. Doc. 62.
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2
or grievances presented to the state court based on issue preclusion. Rec.
Docs. 62, 56 at 11, 18;
e.
Plaintiff’s supplemental state law claims against all defendants in
individual and/or official capacities for intentional infliction of emotional
distress and/or tortious interference with contract rights. Rec. Docs. 62, 56
at 28‐29.4
2.
The following rulings were also made by order of Judge Tyson:
a.
Plaintiff’s First Amendment retaliation claims against defendants
members sued in their official capacity for prospective injunctive relief to
conform to commands of federal law based on Ex Parte Young were not
barred by issue preclusion if they were not subject of the state court
litigation. Rec. Docs. 62, 56 at 10, 18;
b.
The plaintiff adequately alleged that the defendants being sued in official
capacity for prospective injunctive relief have a sufficient connection with
Judge Tyson order dismissed all state law contractual claims against the
defendants. Rec. Docs. 62, 56 at 30. He also found that the state court did not address
the existence of plaintiff’s contractual right to grievance procedure under state law by
virtue of employment contract between plaintiff and university for issue preclusion
purposes, but that Eleventh Amendment immunity applied. Rec. Docs. 62, 56 at 20, 29.
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enforcement of the allegedly unconstitutional acts.5 Rec. Docs. 62, 56 at 24;
c.
The defendants sued in their individual capacities were not entitled to
qualified immunity based on the argument that the Board prevailed in
state court in first suit with re: for grievances not otherwise barred by
issue preclusion. Rec. Docs. 62, 56 at 27‐28.63.
3.
The defendants’ motion to dismiss and/or for summary judgment is now before
the Court.7 Rec. Doc. 100. The defendants’ motion for summary judgment presents
several arguments for dismissal that are not addressed by the plaintiff in his opposition.
Rec. Docs. 100, 112. Given the lengthy pendency of this case and the ample provision
of time for amendment to pleadings, preparation and briefing, the plaintiff’s failure to
oppose summary judgment as to the dismissal of any claim indicates agreement that the
Again, the Court disagrees with the plaintiff’s characterization that Judge Tyson
ruled that the defendants have the ability to enforce the grievance procedure in this suit.
Rec. Doc. 112 at 4. His order concerned the sufficiency of the pleadings for purposes of
Fed. R. Civ. P. 12(b)(6), not summary judgment.
5
The Court disagrees with the plaintiff’s characterization that the defendants are
rearguing their entitlement to qualified immunity based on the outcome of the state
court proceeding. Rec. Doc. 112 at 5.
6
By virtue of its timing, it also appears that the motion pertains only to those
claims raised in the plaintiff’s Original, First Supplemental and Amended, Second
Amended and Third Supplemental and Amended Complaints. Rec. Docs. 1, 10, 43, 80.
The opposition, however, was filed after the Fourth Amended Complaint was filed.
Rec. Doc. 104, 112.
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claim should be dismissed. The motion for summary judgment is GRANTED as
follows:
a.
Plaintiff’s claims against the defendants in their official capacities for
monetary damages and state law claims for money damages are
DISMISSED under the Eleventh Amendment. Rec. Doc. 100‐1 at 5, 7. The
plaintiff did not oppose the motion as to the dismissal of these claims;
b.
Plaintiff’s Title VII claims contained in the Original Complaint are
DISMISSED. Rec. Doc. 101‐1 at 7. The plaintiff does not oppose the
motion as to the dismissal of these claims;
c.
Plaintiff’s First Amendment/ freedom of religion claims against the
defendants are DISMISSED. Rec. Doc. 100‐1 at 8‐9. The plaintiff does not
oppose the motion as to the dismissal of these claims. The Court finds
that the plaintiff fails to show that Dr. Evenson’s action in giving plaintiff
community service credit rather than professional activity credit for paid
performances at churches or temples to which the plaintiff did not belong
violated the plaintiff’s freedom of religion or otherwise prevented the
plaintiff from participating in his religion. In addition, the Court finds
that Dr. Evenson’s actions were objectively reasonable for purposes of
qualified immunity, to the extent the plaintiff sues Evenson in his
5
individual capacity.8 Rec. Doc. 100‐1 at 9. Again, the plaintiff does not
oppose dismissal based on qualified immunity;
d.
Plaintiff’s First Amendment/freedom of speech claims against the
defendants are DISMISSED.9 Specifically, the defendants argue that the
grievance concerning the Board’s August 25, 2005, action concerned old
grievances filed before or during the state law suit. Rec. Doc. 100‐1 at 10‐
14. They also argue that there is no First Amendment protection for the
plaintiff’s freedom of speech claims alleging Crain, Bourg and Evenson
limited the plaintiff’s speech when they met with the plaintiff to discuss
his grievances. Rec. Doc. 100‐1 at 10‐14. The plaintiff does not oppose the
dismissal of these claims. The plaintiff fails to show that this speech was
protected or that it was motivated by matters of public concern; rather the
The plaintiff bears the burden of demonstrating the inapplicability of the defense
of qualified immunity. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
8
The Court disagrees with the plaintiff’s characterization that Judge Tyson ruled
that the plaintiff had alleged complaints involving matters of public concern. Rec. Doc.
112 at 7. Instead, the order noted the plaintiff’s own listing of issues of alleged public
concern in conjunction with the issue of res judicata and the sufficiency of the pleadings,
and finding that “the record fails to demonstrate that the issues raised in his grievances
addressed and judicially determined by the state court present the same issues as to
those grievances referenced in his federal complaint.” Rec. Doc. 62, 56 at 19. In this
regard, it should be noted that the plaintiff first alleged issues of public concern in this
matter in his Second Amended Complaint, filed in January 2008, shortly after he filed
his opposition to the first motion to dismiss with Judge Tyson. Rec. Docs. 39, 43.
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speech was related to a matter of private concern. Rec. Doc. 100‐1 at 12‐14.
In addition, the Court finds that the defendants Crain, Bourg and
Evenson are entitled to qualified immunity, to the extent the plaintiff sues
them in their individual capacities. The plaintiff does not oppose the
dismissal of these claims based on qualified immunity.
e.
Plaintiff’s first nine grievances presented in the state court petitions
preclude the plaintiff from litigating any issue relevant to those claims,
whether or not raised in the state court proceedings based on claim
preclusion. Rec. Doc. 100‐1 at 22. The plaintiff does not oppose the
motion as to the dismissal of these claims;
f.
Plaintiff’s § 1983 claims relating to conduct that occurred more than one
year prior to August 28, 2006, are DISMISSED as prescribed. Rec. Doc.
100‐1 at 24. This dismissal would include all of the claims itemized by the
defendants in their memorandum. Rec. Doc. 100‐1 at 24‐26. The plaintiff
does not oppose the motion as to the dismissal of these claims;
g.
Plaintiff’s claims against defendants Alessi and Simoneaux in their official
capacities are DISMISSED because no prospective injunctive relief is
available. Rec. Doc. 100‐1 at 27. The plaintiff does not oppose the motion
as to the dismissal of these claims;
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h.
Plaintiff’s claims against defendants Board members Hale, Ricard, Woods,
Bussie, Smith and Rougeou in their official capacities are DISMISSED
because no prospective injunctive relief is available. Rec. Doc. 100‐1 at 27‐
28. The plaintiff does not oppose the motion as to the dismissal of these
claims;
i.
Plaintiff’s claims against the defendants in their individual capacities for
monetary lost wage and medical expense damages are DISMISSED. Rec.
Doc.100‐1 at 28. The plaintiff previously represented that he seeks no lost
wages or medical expenses in conjunction with his refusal to respond to
discovery concerning income and medical history, and provides no good
cause to retract this representation and further delay this already extended
litigation. The plaintiff does not oppose the motion as to the dismissal of
these claims;
j.
Plaintiff’s claims for compensatory or punitive damages against all
defendants in their official capacities are DISMISSED. Rec. Doc. 100‐1 at
30. The plaintiff does not oppose the motions as to the dismissal of these
claims.
The defendants also seek summary judgment as to two remaining § 1983 claims:
the plaintiff’s First Amendment retaliation claim and substantive due process claim
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pertaining to his employment duties and leave. Rec. Doc. 100‐1 at 14‐21. The
plaintiff’s opposition focuses only on these two § 1983 claims.10 He claims the First
Amendment retaliation claim concerns the alleged “freezing plaintiff’s grievance rights
in retaliation” for his prior state lawsuit, internal complaints regarding issues of public
concern and this lawsuit, and challenges the defenses of qualified immunity and “final
decision maker” related to this claim. Rec. Doc. 112 at 2, 5‐15. The second concerns his
alleged due process property right to adequate leave for professional activities.11 Rec.
Doc. 112 at 16‐17.
The defendants’ motion for summary judgment is GRANTED as follows:12
k.
Plaintiff’s First Amendment Retaliation claims against the defendants are
DISMISSED. The defendants challenge six specific instances of alleged
retaliation involving personnel matters. Rec. Doc. 100‐1 at 14. Although
the plaintiff does oppose the dismissal of First Amendment retaliation
Again, additional claims were made in the Fourth Amended Complaint, filed
subsequent to this motion for summary judgment but prior to the filing of the
opposition. Rec. Doc. 104, 112.
10
It appears that this claim was not considered as one of the two § 1983 causes of
action alleged by the plaintiff when Judge Tyson issued his order, although it was
alleged as February 2007, when the First Supplemental and Amended Complaint was
filed. Rec. Docs. 10, 56 at 11, 62, 112 at 15.
11
The Court recognizes that some claims may be subject to dismissal on more
than one ground by virtue of the manner in which the issues have been presented by
the parties.
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9
claims in his opposition, he does not directly address the specific claims
for retaliation identified in the motion for summary judgment. In order
to prove a § 1983 claim for First Amendment retaliation, the plaintiff must
show: (1) that he suffered an adverse employment action; (2) that he spoke
as a citizen on a matter of public concern; (3) that his interest in the speech
outweighed the government’s interest in the efficient provision of public
service; and (4) that the speech precipitated the adverse employment.
Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007). The plaintiff
remains employed and tenured. Assuming without finding that the
plaintiff suffered an adverse employment action, he has not presented
proof as to the other necessary elements.
In general, the First Amendment does not protect the plaintiff’s
speech if it was made in his employment capacity rather than as a private
citizen, an analysis that focuses on the role of the speaker rather than the
content of the speech. Garcetti v. Ceballos, 547 U.S. 410, 421‐22 (2006).
Certain factors were identified by the Garcetti Court as relevant to this
determination: the location where the speech is made, a comparison of the
subject matter of the speech and the employment and whether the speech
is made pursuant to the plaintiff’s job duties. Id. at 421. The Fifth Circuit
10
in Williams v. Dallas Independent School District, 480 F.3d 689, 693 (5th Cir.
2007), the Fifth Circuit clarified that a public employee is not protected by
the First Amendment if the speech is not necessarily required by his job
duties but is nonetheless related to job duties or the speech is made in the
course of performing job duties. The Fifth Circuit in Davis v. McKinney,
518 F.3d 304, 313 (5th Cir. 2008), recognized that if the employee shared his
speech to persons outside the workplace, it would be more likely to enjoy
First Amendment protection, and that a single communication can raise
both official and private concerns.
At the same time, the Garcetti Court did reserve determining
whether the same analysis applies in the same manner to academia.
“There is some argument that expression related to academic scholarship
or classroom instruction implicates additional constitutional interests that
are not fully accounted for by this Court’s customary employee‐speech
jurisprudence.” Id. at 425; Van Heerden v. Board of Supervisors of Louisiana
State University, 2011 WL 5008410 (M.D.La). This concern was expressed
by Justice Souter in dissent, who acknowledged an “extreme” example: “a
statement by a government employee complaining about nothing beyond
treatment under personnel rules raises no greater claim to constitutional
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protection against retaliatory response than the remarks of a private
employee.” Garcetti, 547 U.S. at 427. Justice Souter argued for First
Amendment protection to teachers in public colleges and universities,
who “necessarily speak and write” pursuant to their official duties
because the First Amendment “does not tolerate laws that cast a pall of
orthodoxy over the classroom” and “a governmental enquiry into the
contents of a scholar’s lectures at a state university” could wrongfully
invades the areas of “academic freedom and political expression.” Id.,
quoting Shelton v. Tucker, 364 U.S. 479, 487 (1960) and Sweezy v. New
Hampshire, 354 U.S. 235. 250 (1957). The Court finds that, regardless of the
plaintiff’s characterization to the contrary, the six challenged claims being
made by the plaintiff here fall into the extreme example of personnel
decisions for which no First Amendment protection is recognized and fall
far from the mark required for protected academic speech.13
“We have neither the competency nor the resources to undertake to
micromanage the administration of thousands of state educational
The Court also finds that the plaintiff’s interest in commenting on the subject
matters, even if they contain an element of public concern, does not outweigh his
employer’s interest in promoting efficiency and that the plaintiff’s speech motivated the
adverse employment decision for purposes of the third and fourth elements required
for a First Amendment retaliation claim.
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institutions.” Dorsett v. Board of Trustees for State Colleges & Universities,
940 F.2d 121,124 (5th Cir. 1991). “Of all the fields that the federal courts
“‘should hesitate to invade and take over, education and faculty
appointments at [the university] level are probably the lease suited for
federal court supervision.’” Id. (internal citations omitted).
In addition, the Court finds that the defendants are entitled to
qualified immunity as to the challenged First Amendment retaliation
claims.14 The individual defendants did not knowingly violate a
recognized constitutional right clearly established at the time of the
alleged violations.15
l.
Plaintiff’s substantive due process claims are DISMISSED. The defendants
challenge the plaintiff’s due process claims relative to the alleged change
of his tenure position as described in his initial offer of employment
pertaining to the leave policy and outside employment. Rec. Doc. 100‐1 at
19‐20. The plaintiff argues that he has a property interest in three weeks
The Court does not address the “final decision maker” defense argument, but
would welcome further briefing on it and the apparent lack of exhaustion of
administrative remedies in any future motion.
14
The Court disagrees with the plaintiff’s argument that “Defendants would have
this Court strip plaintiff of First Amendment protection for every single statement or
complaint made as a public school professor.” Rec. Doc. 112 at 10.
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of leave to pursue outside employment because his professional activity
responsibilities are “contingent upon being able to perform outside of the
university.” Rec. Doc. 112 at 15. That policy was changed to ten
classroom days per semester.
In order to establish a substantive due process claim, the plaintiff
must present proof that: (1) that he had a property interest/right in his
leave, and (2) that the public employer’s termination of that interest was
arbitrary or capricious or not reasonably related to a legitimate
government concern. Harrington v. Harris, 118 F.3d 359, 368 (5th Cir. 1997);
Williams v. Texas Tech University Health Sciences Center, 6 F.3d 290, 294 (5th
Cir. 1993). “Judicial evaluation of academic decisions requires deference
and they are overturned only if they are ‘such a substantial departure
from accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional judgment.’”
Williams, 6 F.3d at 294, quoting Regents of the University of Michigan v.
Ewing, 474 U.S. 214, 225 (1985). Here, even assuming without finding that
the plaintiff had the requisite property interest in three weeks of leave, he
has presented no proof that the defendant’s determination was arbitrary
or capricious. Instead it is undisputed that the policy was adopted after
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study of the leave policies of other public university music departments,
and was applied to all faculty members. Rec. Doc. 100‐1 at 19‐21; Rec.
Doc. 112 at 15‐16.
In addition, the Court finds that the defendants being sued in their
individual capacities are entitled to qualified immunity as to these claims.
The plaintiff does not oppose the dismissal of these claims based on
qualified immunity.
4.
In the event another motion for summary judgment is filed by either party with
regard to pending claims set forth in the Fourth Amended Complaint or
elsewhere, the motion shall be filed within 30 days from the date of this order.
5.
No motion for reconsideration shall be filed until 31 days from the date of this
order. In the event that another motion for summary judgment is filed, no
motion for reconsideration shall be filed until a ruling on that motion for
summary judgment has been issued.
6.
Any future motion for summary judgment and/or motion for reconsideration
shall be accompanied with a separate summary of each specific claim being
under consideration that includes: the pleadings in which the claim is made, the
defendants against whom the claim is made, the capacity in which the
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defendants are being sued as to the claim, all dates relevant to the underlying
claim along with proof of all relevant facts. Defenses shall be presented in the
same manner. In addition, record reference to any previous order concerning an
issue affecting the motion as to a specific claim must be provided.
7.
No further amendments to the complaint will be allowed in this matter. If the
plaintiff has additional claims, he can file them in a separate suit filed in a court
of proper original jurisdiction and venue;16
8.
Counsel shall confer and arrange for a settlement conference with Magistrate
Judge Roby within two weeks from this order.
New Orleans, Louisiana, this 5th day of December, 2011.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
In so ordering, the Court notes that the plaintiff “cannot combine separate,
discrete instances of First Amendment retaliation into a continuing violation for
purposes of his § 1983 claim.” Van Heerden, 2011 WL 5008410 at *8.
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