Buchanan v. Alexander et al
RULING: Defendant's 30 Motion for Summary Judgment is GRANTED, and Plaintiff's 35 Motion for Summary Judgment is DENIED. Plaintiff's claims are dismissed with prejudice. Judgment shall be entered accordingly. Signed by Judge Shelly D. Dick on 1/10/2018. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
F. KING ALEXANDER, DAMON ANDREW,
A.G. MONACO, AND GASTON REINOSO
This matter is before the Court on the cross Motions for Summary Judgment1 by
Defendants, F. King Alexander, Damon Andrew, A.G. Monaco, and Gaston Reinoso
(“Defendants”) and Plaintiff, Teresa Buchanan (“Plaintiff”).
The parties have filed
Oppositions2 and Replies3 to the cross-motions. On September 25, 2017, the Court held
Oral Argument on limited issues raised in the Parties’ motions, and the Court allowed the
Parties to submit post-hearing memoranda.4
The Court has considered all of the
evidence presented, the arguments of counsel, and the law as applied to the undisputed
facts of this case. For the following reasons, the Court finds that summary judgment
should be granted in favor of the Defendants.
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.
Page 1 of 79
This lawsuit arises out of the termination of Plaintiff’s position of tenured professor
by the Board of Supervisors (“the Board”)5 of Louisiana State University and Agricultural
and Mechanical College (“LSU”).6 The Defendants are: F. King Alexander (“Alexander”),
President and Chancellor of LSU; Damon Andrew (“Dean Andrew”), Dean of the College
of Human Sciences and Education at LSU; A.G. Monaco (“Monaco”), the Vice Chancellor
of the Office of Human Resource Management at LSU; and Gaston Reinoso (“Reinoso”),
the Director of the Office of Human Resource Management and Executive Director of
Equal Employment Opportunities at LSU.
Plaintiff joined the faculty of LSU in 1995 and was promoted to Associate Professor
with tenure in 2001.7
Plaintiff created LSU’s “Early Childhood Program,” a teacher
education program for pre-school through third-grade instruction known as the “PK-3”
program.8 Plaintiff is widely published in top academic journals and claims she had
demonstrated significant success in securing funding for both her research and early
childhood initiatives at LSU.9 Prior to the inception of the underlying conduct at issue,
Plaintiff was recommended for a promotion to Full Professor following a review process
that included the approvals of a Tenure and Promotion Committee, the Director of the
School of Education, and the Dean of the College of Human Sciences and Education,
Defendant Andrew.10 However, Dean Andrew later rescinded this recommendation.11
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.
Page 2 of 79
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.12 Cancienne was reportedly very upset because he heard that Plaintiff had
been condescending to the teachers during her site visits with LSU student teachers and
their mentor teachers.13 Plaintiff claims that, in response to this complaint, she attempted
to “smooth Cancienne’s ruffled feathers”14 by an email on that same day wherein she
apologized for any offense and affirmed that his Parish was “full of excellent teachers and
very bright students.”15 Despite this apology, Plaintiff contends Cancienne called her
personal cell phone and demanded that she come to his office and discuss the matter
“just the two of us.”16 Plaintiff admits she had no desire to meet with Cancienne alone as
she had previously reported to Associate Dean Jennifer Curry (“Curry”) that Cancienne
had flirted with her and she thought him “creepy.”17 Plaintiff maintains that Curry and
another female LSU faculty member shared this view of Cancienne.18
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.”19 In
fact, Plaintiff claims Cancienne advised Curry that if Plaintiff returned to Iberville schools,
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.
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he would “have her arrested.”20 While Cancienne clearly objected to Plaintiff’s use of the
term “pussy,” he claimed that he did not believe it was used in a sexual context or to
engage in sexual harassment, but was used as part of Plaintiff’s instruction to student
teachers regarding coping with parents who may use different vocabularies.21 Plaintiff
claims that LSU investigators never inquired into the nature of Cancienne’s complaints
and only assumed, without supporting evidence, that Plaintiff’s use of the word “pussy”
was slang for female genitalia.22 Further, Plaintiff contends that no one at LSU inquired
into the actual nature of Cancienne’s concerns, which she claims were primarily based
on Plaintiff’s criticism of his school and teachers and not related to any kind of sexual
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
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.
Page 4 of 79
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.”25 Curry testified that
Student 1 stated: “I don’t know who she is to make these assumptions about me, and to
say it in front of a room full of people.”26
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.27 Student 2 met with Curry and complained that Plaintiff had intimidated and
demeaned her by video recording this incident during a team assessment meeting.
Regarding this incident, Dr. Curry testified:
… 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
Curry further testified that Student 2 reported that this meeting was “mortifying,”29 and
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,
Plaintiff claims that no administrator met with her to discuss these allegations, and
Id. at p. 4; Deposition of Curry, p. 71, lines 19-21.
Id.; Deposition of Curry, p. 71, lines 22-24.
Id.; Deposition of Curry, p. 69, lines 13-16.
Id.; Deposition of Curry, p. 70, lines 14-21.
Id. at p. 5; Deposition of Curry, p. 72, line 3.
Id.; Deposition of Curry, p. 72, lines 6-12.
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they never disclosed to her these student complaints.31 However, Plaintiff does not deny
that these incidents took place. Plaintiff acknowledges that the administration obtained a
written complaint in the winter of 2012 purporting to represent the views of Plaintiff’s
“Junior PK-3 Cohort” complaining that Plaintiff made several offensive comments, such
as: (1) stating that “a woman is thought to be a dike if she wears brown pants”; (2) “it was
a choice to be in the program and it was not the fault or problem of the professors if any
of us chose to be mommies or wives and not to expect to get an A in the class”; and (3)
that Plaintiff used “extreme profanity on a regular basis.”32 Plaintiff contends “[i]t was
never established the letter actually came from a ‘cohort’ and was not just a random
complaint from a disgruntled student.”33
Further, Plaintiff contends that there is no
evidence that this student or cohort was speaking on behalf of anyone other than
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
Dr. Cheek further reported that local elementary school administrators had
requested that Plaintiff not mentor students on their campuses. According to Curry, Dr.
Cheek claimed he had relayed these complaints to Dean Lindsay (who preceded Dean
Andrew) and to Human Resources but was advised nothing could be done because
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.
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Plaintiff was tenured.36
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.37 After
gathering additional evidence, Curry and Dean Andrew sought help from Human
Resources regarding Plaintiff.38 Human Resources Management administrator Reinoso
interviewed witnesses and reported his findings to Dean Andrew, who then recommended
to Provost Bell the appointment of a Policy Statement-104 (“PS-104”) Faculty Senate
Grievance Committee (“the faculty committee”). 39
The PS-104 committee conducted a 12 hour hearing during which several
witnesses testified about Plaintiff’s classroom behavior, including Plaintiff’s friend Karen
Donnelly (“Donnelly”) who is an adjunct instructor in the PK-3 program. Donnelly testified
that she had reported her concerns to Dr. Cheek about Plaintiff’s behavior in the Zachary
Community School System because Plaintiff’s behavior was “threatening our program,
and Zachary is our best placement.”40 Donnelly also confirmed that she observed Plaintiff
use profanity in the classroom41 and heard the remarks about which students had
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.
Id., Deposition of Donnelly, p. 64.
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complained. Donnelly also testified that she knew of complaints from four elementary
schools that would no longer allow Plaintiff to mentor student teachers; Donnelly testified
to knowledge of complaints about Plaintiff’s behavior from Zachary schools,42 the LSU
Lab School,43 Port Allen Elementary School,44 and Iberville Parish Schools.45
Donnelly confirmed that Reinoso accurately reported that Plaintiff typically makes
comments about sex because “that is how she is.”46 When asked what was meant by the
comment that Plaintiff had “no self-awareness of what she says,”47 Donnelly responded:
“I’m not sure that was my exact word, but it’s like when I said she doesn’t have a filter.
She just doesn’t realize what sometimes she says, and how it sounds. She doesn’t mean
it the way, you know, it sounds, sometimes.”48 Donnelly also confirmed that she was
present when Plaintiff spoke to students about condoms to avoid pregnancy49 and when
Plaintiff advised a student in an assessment meeting about the quality of sex in a
relationship.50 Donnelly testified that she did not believe Plaintiff’s behavior was worse
than it had always been but that “girls are more vocal nowadays.”51
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.52 On January 15, 2014, Plaintiff met
Id., Deposition of Donnelly, p. 13.
Id., Deposition of Donnelly, p. 14.
Id., Deposition of Donnelly, p. 70-71.
Id., Deposition of Donnelly, p. 71.
Id., Deposition of Donnelly, p. 63, lines 5-8.
Id., Deposition of Donnelly, p. 75, lines 22-23.
Id., Deposition of Donnelly, p. 75, lines 24-25 through p. 76, lines 1-3.
Id., Deposition of Donnelly, p. 79.
Id., Deposition of Donnelly, pp. 41-42.
Id., Deposition of Donnelly, p. 80, lines 20-22.
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).
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with LSU Human Resource Management administrators, including Reinoso, to discuss
the allegations of complaints by students and school administrators.53 During the
investigation, Plaintiff admitted to using profanity and language of a sexual nature which
she claimed supported her “overall pedagogical strategy when teaching at LSU.”54
Plaintiff agreed that, while not a direct quote, she used such language to “get the attention
of students” and “loosen them up.”55
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.”56 Reinoso
further stated: “Beyond your sexually oriented comments, your reported communication
style with students, faculty, and outside administrators has been found to be
inappropriate, as you often use profanity in your communication.”57 This memorandum
led to a June 12, 2014 meeting between Plaintiff and Dean Andrew. Reinoso testified
that his role was to determine if Plaintiff’s behavior violated policy, but he could not
recommend Plaintiff’s termination because he lacked the power to do so.58
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
Rec. Doc. No. 1, ¶¶ 19-20.
Id., Deposition of Buchanan, p. 212.
Id., Deposition of Buchanan, p. 212, lines 10-13. Plaintiff stated that this was not a direct quote but was
“correct in content and meaning.” Id. at lines 21-22.
Id. ¶ 20.
Rec.Doc. No. 30-1, p. 4, citing Deposition of Gaston Reinoso, pp. 2-5.
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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
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.59 As a result of Reinoso’s report, Dean
Andrew chose to pursue disciplinary proceedings against Plaintiff and requested that
Plaintiff meet with him on June 12, 2014 to discuss the report.60 During this meeting,
Plaintiff claims Dean Andrew provided her a one-page list of the policies she was accused
of violating and asked that she respond.61 Dean Andrew later wrote that Plaintiff “admitted
to using profanity and language of a sexual nature, claiming it supported [her] overall
pedagogical strategy when teaching at LSU,” and that Plaintiff stated something to the
effect that such language was used to “get the attention of students” and “loosen them
Rec. Doc. No. 36-1, ¶¶ 97-98.
Id. ¶ 101.
Id. ¶ 102.
Id. ¶ 104.
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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 are used 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 does 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-104.64
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.65 Plaintiff also questioned the reliability of the report
findings which she claims “centered on the complaints of a few disgruntled students and
answers to leading questions of others, entirely discounting my explanation of the
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, 2014.67 On July 30, 2014, Provost Bell requested a PS-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.
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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
“[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.71 Plaintiff
also had notice of two pre-hearing meetings and participated in these meetings with the
aid of her legal counsel.72
On March 9, 2015, the committee conducted a twelve-hour
hearing during which the committee heard testimony regarding Plaintiff’s conduct as
described above herein. Plaintiff was given an opportunity to address the committee and
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.
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was allowed to submit exhibits and call witnesses; indeed, all of the witnesses on
Plaintiff’s witness list testified before the committee except for one released by Plaintiff.73
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-95.74 Plaintiff notes that the committee chair, William Stickle,
testified that he understood the sexual harassment standard to be one of “offensiveness”
and that sexual harassment is “in the eye of the beholder.”75 Further, Plaintiff alleges that
neither Cancienne nor any of the students who allegedly lodged complaints against
Plaintiff testified at the hearing.76 Rather, Curry and Dean Andrew presented “second
and third-hand information they had gathered.”77 Plaintiff also claims she did not receive
a copy of the Human Resources Management report until just prior to the hearing.78
The Faculty Committee Findings & Recommendation
On March 20, 2015, although the committee found insufficient findings to establish
an ADA violation,79 the written findings of the faculty committee concluded that Plaintiff’s
conduct violated PS-73 and PS-95 “through her use of profanity, poorly worded jokes,
and sometimes sexually explicit ‘jokes’.”80 The committee further found that Plaintiff’s
conduct created a “hostile learning environment.”81 Despite these findings, the committee
Id., Deposition of Buchanan, pp. 195-196.
Rec. Doc. No. 36-1, ¶¶ 124-125, citing Rec. Doc. No. 35-6, pp. 43-44, Deposition of William Stickle, pp.
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,
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did not recommend dismissal but instead recommended a censure and agreement from
Plaintiff that she would modify her teaching methodology to correct the offensive
behavior.82 Further, the committee criticized Plaintiff’s supervisors for failing to offer her
“counseling before HRM engagement” or “re-training prior to implementing PS-104
The committee also denounced the “closed nature of the HRM
investigation” that “did not offer Dr. Buchanan an opportunity to resolve charges once
specifics of charges became known.”84
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.85 Plaintiff claims
Alexander was obligated under PS-104 to “make such a recommendation based on the
recommendation of the Committee of the Faculty and the evidence presented in the
hearing.”86 However, the same document also states: “The Chancellor also has the
option to return the case to the Committee of the Faculty for further review or to take an
alternate action.”87 Nevertheless, Plaintiff contends Alexander testified that he never
reviewed the hearing transcript, did not see any exhibits or evidence presented, and did
not know which witnesses testified.88 Alexander testified that he did read the report of
the faculty committee and that he “listened to my staff and the recommendations they
made. And those that were involved throughout the hearing as well.”89 Alexander further
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.
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testified that his decision was based on his discussions with the Provost and legal staff.90
Plaintiff also contends that, despite the fact that Reinoso’s report confirmed that
Cancienne’s complaint had nothing to do with sexual harassment, Alexander testified that
his recommendation was largely based on Cancienne’s complaint,91 and he “mistakenly
believed the case was about more than just profanity, poorly worded jokes, or
occasionally sexually explicit jokes.”92
Plaintiff appealed Alexander’s initial recommendation and requested an
opportunity to address the Board.93
Plaintiff was allowed to address the Board;94
however, Alexander’s recommendation remained unchanged.95
Prior to the Board
meeting, Plaintiff communicated with Board members via email and attached her
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, PS95 defines sexual harassment as follows:
unwelcome verbal, visual, or physical behavior of a sexual nature.” It
Id., Deposition of Alexander, p. 55.
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
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.
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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
Plaintiff also acknowledged that PS-95 describes examples of hostile work environment,
including “unwelcome touching or suggestive comments, offensive language or display
of sexually oriented materials, obscene gestures, and similar sexually oriented behavior
of an intimidating or demeaning nature.”99 However, LSU’s policies are much more
specific than what Plaintiff has acknowledged. Indeed, LSU expressly acknowledges that
the policies are “not intended to infringe upon constitutionally guaranteed rights nor upon
academic freedom.”100 The policies also include definitions that expound upon what
conduct is deemed violative.101
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 antisexual harassment policy.102
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.
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On June 19, 2015, Plaintiff was dismissed by the Board. Plaintiff contends that, in
response to her 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.”103
Plaintiff filed this lawsuit asserting claims pursuant to 42 U.S.C. § 1983 for an
alleged violation of her right to free speech and academic freedom under the First and
Fourteenth Amendments to the United States Constitution. She also alleges a violation
of procedural and substantive due process under the Fourteenth Amendment, a facial
challenge to the sexual harassment policies implemented by LSU, and she seeks
reinstatement, declaratory, and injunctive relief. The parties have filed cross-motions for
summary judgment, which are now before the Court.
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.”104 “When assessing whether a dispute to any material fact exists, we consider
all of the evidence in the record but refrain from making credibility determinations or
weighing the evidence.”105 A party moving for summary judgment “must ‘demonstrate the
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., 530 F.3d 395, 398-99 (5th Cir. 2008).
Page 17 of 79
absence of a genuine issue of material fact,’ but need not negate the elements of the
nonmovant’s case.”106 If the moving party satisfies its burden, “the non-moving party must
show that summary judgment is inappropriate by setting ‘forth specific facts showing the
existence of a genuine issue concerning every essential component of its case.’”107
However, the non-moving party’s burden “is not satisfied with some metaphysical doubt
as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.”108
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.’”109 All reasonable factual
inferences are drawn in favor of the nonmoving party.110 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”111 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”112
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
See Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
Page 18 of 79
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 her
official capacity is not a suit against the official but rather a suit against the official’s
office.”113 Defendants further contend that state officials are not “persons” subject to
liability and money damages under 42 U.S.C. § 1983.
Plaintiff does not dispute
Defendants’ assertion but claims that Defendants have been sued in both their individual
and official capacities. Thus, Plaintiff can recover money damages from Defendants in
their individual capacities.
Plaintiff further claims that she seeks only prospective,
injunctive relief from the Defendants in their official capacities which does not violate the
“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.”114
The State of Louisiana has not waived its sovereign immunity,115 and the Board of
Supervisors, although not named as a Defendant herein, is an arm of the state and is
likewise entitled to Eleventh Amendment immunity.116 However, the Plaintiff is not barred
by the Eleventh Amendment from bringing suit, as she has, for prospective, injunctive
relief against individual state officials named as defendants in their official capacities.117
Further, it is “well established” in the Fifth Circuit that “a suit against a state officer in his
or her individual capacity for money damages is not a suit against the state for purposes
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 709 S.Ct. 2304, 2372, 105 L.Ed.2d 95 (1989).
Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 185 (5th Cir.1986).
See La. Const. art. XII, § 10; La.Rev.Stat. Ann. § 13:5106.
Delahoussaye v. City of New Iberia, 937 F.2d 144, 148 (5th Cir. 1991).
See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Page 19 of 79
of Eleventh Amendment immunity.”118
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.119 However, the date that
a Section 1983 claim accrues is governed by federal law, not state law. Under federal
law, the limitations period begins to run when the plaintiff “becomes aware that [she] has
suffered an injury or has sufficient information to know that [she] has been injured.”120
Louisiana law provides a one-year liberative prescriptive period for personal injury
claims.121 Accordingly, Plaintiff was required to have filed suit within one year of the date
that she became aware that she has suffered injury or had sufficient information to know
that she has been injured.
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
New Orleans Towing Ass’n v. Foster, 248 F.3d 1143, *3 (5th Cir. 2001)(citing Wilson v. UT Health Ctr.,
973 F.2d 1263, 1271 (5th Cir.1992))(“Pennhurst and the Eleventh Amendment do not deprive federal courts
of jurisdiction over state law claims against state officials strictly in their individual capacities.”), cert. denied,
507 U.S. 1004, 113 S.Ct. 1644, 123 L.Ed.2d 266 (1993); Hays County Guardian v. Supple, 969 F.2d 111,
125 (5th Cir.1992) (“The Eleventh Amendment does not bar state-law actions against state officials in their
individual capacity.”), cert. denied, 506 U.S. 1087, 113 S.Ct. 1067, 122 L.Ed.2d 371 (1993); Crane v. Texas,
759 F.2d 412, 428 n. 17 (5th Cir.) (“The Eleventh Amendment is obviously no bar to actions for damages
against officials sued in their individual capacities[.]”), cert. denied, 474 U.S. 1020 (1985); see also Hafer
v. Melo, 502 U.S. 21, 30-31, 112 S.Ct. 368, 116 L.Ed.2d 307 (1991)).
See Wilson v. Garcia, 471 U.S. 261, 276–80 (1985) (superseded by statute on other grounds); see also
Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 2002) (applying state personal injury statute of limitations to
First Amendment retaliation claim).
Helton v. Clements, 832 F.2d 332, 335 (5th Cir.1987).
See Bourdais v. New Orleans City, 485 F.3d 294, 298 (5th Cir. 2007)(internal citation omitted)(citing La.
Civ.Code art. 3492).
Page 20 of 79
Amendment retaliation.122 The court held:
As the Fifth Circuit has noted, though, “courts, including this one, are wary
to use the continuing violation doctrine to save claims outside the area of
Title VII discrimination cases.” McGregor v. Louisiana State Univ. Bd. of
Sup'rs, 3 F.3d 850, 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 theory is
inapplicable. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Further, as the Court held in Rutan v. Republican Party of Illinois, 497 U.S.
62 (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.” 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, 440 F.3d 125 (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
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.124 Because this action was taken 18 months prior to Plaintiff’s filing
of this suit on January 20, 2016, Dean Andrew contends all First Amendment claims
against him have prescribed.
Defendants Reinoso and Monaco make the same
arguments regarding Plaintiff’s allegations against them as no allegations are made as to
Reinoso or Monaco after May 26, 2014 when Reinoso’s investigation findings were
approved by Monaco, and Monaco concluded that Plaintiff had violated LSU’s sexual
No. 03:10-CV-155-JJB-CN, 2011 WL 5008410, *1 (M.D. La. Oct. 20, 2011).
Id. at *8.
Rec. Doc. No. 1, ¶ 33.
Page 21 of 79
The Court agrees that the First Amendment claims brought against Dean Andrew,
Reinoso, and Monaco are prescribed.126 There is no allegation that Monoco, Reinoso, or
Dean Andrew actually terminated Plaintiff. Further, Plaintiff’s attempt to distinguish Van
Herdeen is without merit and without any jurisprudential support. The law is clear that
she cannot aggregate discrete acts for First Amendment retaliation. Plaintiff’s argument
that “Defendants’ various actions are part of a single course of conduct that applied an
unconstitutional sexual harassment standard and culminated in”127 her termination is a
clear attempt to apply the continuing violation theory to her First Amendment retaliation
claim. Such an argument is foreclosed under applicable jurisprudence.128 The First
Amendment claims against Dean Andrew, Reinoso, and Monaco are dismissed with
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
Id., ¶ 28; Rec. Doc. No. 30.
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, 184 Fed.Appx. 442, 447 (5th Cir. 2006) (holding that the
continuing violations doctrine does not apply to claims of retaliation because “retaliation is, by definition, a
discrete act, not a pattern of behavior”); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002)(“Discrete discriminatory acts are not actionable if time barred,” even when they are related to acts
that are the subject of timely complaints.”); Vandenweghe v. Jefferson Parish, No. 11-2128, 2012 WL
1825300, *6 (E.D. La. May 18, 2012)(court held in case where First Amendment retaliation claims were
asserted, “to the extent [plaintiff] seeks redress for injuries known to have been sustained prior to August
25, 2012, the Court finds that these claims are facially time-barred.”).
Page 22 of 79
must be dismissed. 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.”129 On the other hand, Plaintiff points out that the Culbertson court also
stated, referring to a prior similar case: “We did not necessarily hold that there was no
individual liability simply because the board made the decision.”130 Ultimately, if the
recommendations by the Defendants constitute the reason that the Board terminated
Plaintiff, then individual liability could attach.131
The decision in Powers v. Northside Independent School District132 is applicable
on this issue. In Powers, a terminated school principal and assistant principal sued the
school district for alleged Section 1983 free speech violations under federal and Texas
constitutions. Specifically, these plaintiffs alleged that Superintendent Woods “‘used his
influence as superintendent’ to effect their terminations.”133 After a series of events which
included complaints being filed against the plaintiffs relating to their administration of
testing, plaintiffs’ suspensions for suspected misconduct, and plaintiffs’ filing of
grievances to contest their suspensions and allege retaliation, Woods recommended to
the Board of Trustees that the plaintiffs be terminated.134 The Board of Trustees followed
this recommendation and terminated the plaintiffs’ employment.135 The plaintiffs alleged
790 F.3d 608, 626 (5th Cir. 2015).
Id., citing Beattie v. Madison County School Dist., 254 F.3d 595, 604-605 (5th Cir. 2001).
See Powers v. Northside Independent School Dist., 143 F.Supp.3d 545, 550-51 (W.D. Tex. 2015).
Id. at 546.
Id. at 547.
Page 23 of 79
in their complaint that Woods “used his authority … as superintendent to create a bogus
case for termination against Plaintiffs and, in conjunction with his influence over the Board
of Trustees, effected the termination of Plaintiffs’ employment by Board action.”136
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 1983.137 Essentially, Woods argued that the plaintiffs “failed to
allege that [he] caused their termination.”138 In reaching its determination on this issue,
the court then reviewed Fifth Circuit decisions in two cases relied upon by the Parties in
the present case.
Defendants cite Beattie v. Madison County School District, 254 F.3d 595
(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 at 604–05. 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.” Id. 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, 790 F.3d 608 (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. Id. at 614, 625. The contractors
alleged after they spoke out regarding the unreliability of certain breathalcohol testing equipment, the ADA pressured the Harris County
Commissioners Court, the relevant decision-making body, to terminate their
Id. at 549.
Page 24 of 79
contract with Harris County. See id. 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, 798 F.2d 748, 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, 790 F.3d at 626
(quoting Jett, 798 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, 798 F.2d
at 758. Acknowledging the “tension” between Jett and the later decisions
interpreting Beattie to hold that only final decision makers may be held liable
for First Amendment retaliation under § 1983, the Culbertson court
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
Id. at 549-550.
Page 25 of 79
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 reasonable official should have known that he
was violating the plaintiff's constitutional rights.” Culbertson, 790 F.3d at 627
(quoting Murray v. Earle, 405 F.3d 278, 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:
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, 254 F.3d at 595, 604–
05; Jett, 798 F.2d at 758.... In fact, some clear statements in the
caselaw have held there can be no liability.
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
The district court for the Southern District of Texas recently interpreted and applied
Culbertson in Sims v. Covington.141 The court held that the plaintiff’s claim against a
supervisor who did not make the final decision to terminate him was foreclosed pursuant
The threshold and fundamental problem is recent, clear Fifth Circuit
Id. at 551.
No. H-14-2145, 2016 WL 3144158, *1 (S.D. Tex. June 6, 2016).
Page 26 of 79
precedent that forecloses Sims's claim. In Culbertson v. Lykos, 790 F.3d
608 (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.” 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.
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
Id. at *5-6.
Page 27 of 79
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 42 U.S.C. § 1983 and related statutes, including § 1985—
performing “discretionary functions” when their actions are reasonable regarding the
rights that the official allegedly violated.143 Essentially, it is a defense available to “all but
the plainly incompetent or those who knowingly violate the law.”144 The Fifth Circuit uses
a two-part test to evaluate qualified immunity defenses: first, whether the defendant's
alleged action constitutes a violation of the plaintiff's constitutional rights, and second,
“whether the defendant's actions were objectively unreasonable in light of clearly
established law at the time of the conduct in question.”145 The Court will address each of
Plaintiff’s alleged constitutional violations below and determine if the defense of qualified
immunity has been satisfied for any of these constitutional claims.
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
See Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010).
Id. (internal citations omitted).
Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007).
Page 28 of 79
state law.146 Plaintiff's Section 1983 claim in this case is grounded on the First and
Fourteenth Amendments. The First Amendment protects a public employee's right, in
certain circumstances, to speak as a citizen addressing matters of public concern. A First
Amendment retaliation claim requires proof of the following elements: (1) an adverse
employment action; (2) speech involving a matter of public concern; (3) the employee’s
interest in speaking must outweigh the employer's interest in promoting efficiency in the
workplace, and (4) the employee's speech motivated the employer's adverse employment
The Supreme Court's decision in Garcetti v. Ceballos,148 added a threshold layer
to this analysis.149 In Garcetti, the Supreme Court held that, “when public employees
make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes.”150 Thus, this Court must initially determine
whether the Plaintiff's speech was pursuant to her official duties. Speech that is required
by a plaintiff's job duties or part of her official duties is not protected by the First
Amendment.151 As succinctly stated by the Fifth Circuit in Davis: “Activities undertaken
in the course of performing one's job are activities pursuant to official duties and not
entitled to First Amendment protection.”152
Therefore, under Garcetti, the focus is on the role the employee occupied when
she communicated rather than the content of the speech.153 “Even if the speech is of
Southwestern Bell Telephone, LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008).
Charles v. Grief, 522 F.3d 508, 510, n. 2 (5th Cir. 2008).
547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008).
Garcetti, 547 U.S. at 421, 126 S.Ct. at 1960.
Id.; Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693-94 (5th Cir. 2007).
Davis, 518 F.3d at 313.
See Williams, 480 F.3d at 692.
Page 29 of 79
great social importance, it is not protected by the First Amendment so long as it was made
pursuant to the worker's official duties.”154 Neither a formal job description, speaking on
the subject matter of one's employment, or the fact that a public employee's statements
are made internally is dispositive.155
“Academic freedom, though not a specifically enumerated constitutional right, long
has been viewed as a special concern of the First Amendment.”156 It consists of “the right
of an individual faculty member to teach ... without interference from ... the university
administration, or his fellow faculty members.”157
As the Fifth Circuit has noted, “[w]hile academic freedom is well-recognized, its
perimeters are ill-defined and the case law defining it is inconsistent. Its roots have been
found in the first amendment insofar as it protects against infringements on a teacher's
freedom concerning classroom content and method.”158 “The foregoing suggests ample
precedent for considering academic freedom as within the ambit of the First Amendment,
while at the same time demonstrating the nebulousness surrounding exactly what
activities are protected by the academic freedom guarantee implied in the First
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
Id.; Garcetti, 547 U.S. at 423, 126 S.Ct. at 1961.
University of California Regents v. Bakke, 438 U.S. 265, 312, 93 S. Ct. 2733, 2759, 57 L.Ed.2d 750
Dow Chemical Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982) (citations omitted).
Hillis v. Stephen F. Austin State University, 665 F. 2d 547, 553 (5th Cir. 1982) citing Keyishian v. Board
of Regents, 385 U.S. at 603, 87 S. Ct. 675, 683 (other citations omitted).
Vance v. Board of Supervisors of Southern University, 1996 WL 580905 at *3 (E.D. La. Oct. 9, 1996).
Page 30 of 79
The inquiry into whether Plaintiff's interests in speaking outweigh LSU's
interests in regulating Plaintiff's speech is a factual determination conducted under the
well-known Pickering balancing test.161 If Plaintiff's interests in the prohibited speech
outweigh the College's interests, then Plaintiff's First Amendment rights have been
violated.162 If the First Amendment violation was a substantial or motivating factor in
Defendants' disciplinary action against Plaintiff, Defendants may present evidence that
they would have disciplined Plaintiff in the absence of his protected conduct.163 However,
if Plaintiff's speech does not involve a matter of public concern, it is unnecessary for the
court to scrutinize the reason for the discipline.164
“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.”165 Speech which can be “fairly considered as relating to any matter of
political, social, or other concern to the community” touches upon matters of public
concern.166 Absent unusual circumstances, a public employee's speech dealing with
“matters only of personal interest” is not afforded constitutional protection.167 However,
mixed questions of private and public concern, where the employee is speaking both as
a citizen as well as an employee, can be protected,168 such that “if any part of an
See Rankin v. McPherson, 483 U.S. 378, 383, 386 n. 9, 107 S.Ct. 2891, 2905, 97 L.Ed.2d 315 (1987).
See Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968).
See Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1186 (6th Cir.1995).
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977).
See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983).
Id., at 147–48.
Id. at 146.
Id. at 147.
See Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000), abrogated
on other grounds as stated in Cuvillier v. Taylor, 503 F.3d 397, 401 n.4 (5th Cir. 2007).
Page 31 of 79
employee's speech, which contributes to the [disciplinary action], relates to a matter of
public concern, the court must conduct a balancing of interests test as set forth in
Pickering v. Board of Education.”169
The Court finds that Plaintiff’s use of profanity and discussions regarding her own
sex life and the sex lives of her students in the classroom do not constitute First
Amendment protected speech, are not matters of public concern, and are not, as claimed
by Plaintiff, part of her overall pedagogical strategy for teaching preschool and elementary
education to students as there is no summary judgment evidence to support such a claim.
The Court finds support from the Fifth Circuit’s decision in J.D. Martin v. Parrish,170 a case
wherein a college teacher brought a Section 1983 action against Midland College alleging
that he had been discharged for exercising his First Amendment right to free speech.
Martin, an economics professor at Midland, was disciplined after students complained
about his constant use of profanity in the classroom. Despite administrative attempts to
stop Martin’s behavior, he persisted in cursing and ultimately delivered the following
“outburst” in class in response to student complaints: “the attitude of the class sucks …
is a bunch of bullshit,” “you may think economics is a bunch of bullshit,” and “if you don’t
like the way I teach this God damn course there is the door.”171 Upon notice of this
outburst, the Dean instituted actions which culminated in Martin’s termination. Martin
sued under Section 1983 claiming an alleged deprivation of his First Amendment right of
Rahn v. Drake Ctr., Inc., 31 F.3d 407, 411-12 (6th Cir.1994); see also Connick, 461 U.S. at 147 (finding
that “when a public employee speaks not as a citizen upon matters of public concern, but instead as an
employee upon matters only of personal interest,” no First Amendment protection is afforded to the speech);
Johnson, 776 F.2d at 451 (finding that the fact that a statement evolves from a personal dispute does not
preclude some aspect of it from touching upon matters of public concern).
805 F.2d 583 (5th Cir. 1986).
Id. at 584.
Page 32 of 79
free speech, abridgement of an alleged right of academic freedom, and denials of due
process and equal protection.172 Although Martin won a jury verdict in his favor on his
free speech claim, the Fifth Circuit reversed and noted: “Some of the jury interrogatories
regarding the free speech issue asked for a balancing of Martin's language between its
usefulness to his instruction and its disruptive tendency. Such balancing involves a
question of law for the court.”173
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.”174 The court
held as follows regarding whether Martin’s speech was a matter of public concern:
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 implied 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 for any 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.”176 The Fifth Circuit noted
Id., n. 1 (citation omitted).
Id. at 585.
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the trial testimony that Martin’s conduct strongly influenced the students in that one
student claimed he had “lost interest in economics as a result of Martin’s belittling
comments,” and another student “expressed his reticence to asking questions in class for
fear of Martin’s ridicule.”177 Ultimately, the court held: “To the extent that Martin's
profanity was considered by the college administration to inhibit his effectiveness as a
teacher, it need not be tolerated by the college… .”178
jurisprudence on which Martin relied, the Fifth Circuit stated:
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. Lorenzo180 is particularly
applicable to this case. The college professor in Bonnell was disciplined for his gratuitous
in-class use of the words “pussy,” “cunt,” and “fuck,” which had given rise to a sexual
Id. at 585-86. The court noted in n 4: “Our conclusion that a public college teacher's classroom use of
profanity is unprofessional and may be prohibited by the school relies on the judgment of the Midland
College administrators who testified at trial. As the Supreme Court held in Board of Education v. Pico, 457
U.S. 853, 864–65, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982), federal courts should ordinarily decline to
intervene in the affairs of the public schools, where the ‘comprehensive authority of States and of school
officials ... to prescribe and control conduct has historically been acknowledged’. This rule has been
enforced in all but the most sensitive constitutional areas. Several Midland College administrators testified
on the basis of strong educational credentials and years of experience in their vocation and in the local
community. On their shoulders rest the college's educational standards and its utility as a publicly-supported
institution. The federal courts thus appropriately respect the professional conclusion of those whose past
and future careers depend upon the esteem due to Midland College. ‘The determination of what manner of
speech in the classroom ... is inappropriate properly rests with the school board.’ Bethel School District No.
403 v. Fraser, 106 S.Ct. 3159, 3165 (1986).”
Id. at 586.
241 F.3d 800 (6th Cir. 2001).
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harassment complaint filed by one of the professor's students.181 Because Bonnell's
offensive language was “not germane to the subject matter,” the court concluded that he
did “not have a constitutional right to use [these terms] in a classroom setting.”182
Specifically, the university had issued a warning to the plaintiff as follows:
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.
Federal 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.”184
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. See id.; see also
FCC v. Pacifica Found., 438 U.S. 726, 747, 98 S.Ct. 3026, 57 L.Ed.2d 1073
(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
Id. at 803.
Id. at 820.
Id. at 803-04. The warning continued: “The principle of academic freedom under the 1st Amendment
serves to protect the utterances in question only if they are germane to course content as measured by
professional teaching standards. Since the precise frontier between academic freedom and sexual
harassment remains to be defined by the courts case by case, a teacher of English literature or composition
courses may be able to find safety and comfort under the 1st Amendment only if the words uttered are
found in appropriate textual materials and the utterances are pertinent to discussion of those materials.
Beyond this point, the teacher enters uncharted territory and proceeds at his or her own risk of being found
guilty of sexual harassment. Consequently, you are warned that a general use in the classroom of words
like ‘fuck,’ ‘cunt,’ and ‘pussy’ outside a professional exegesis may compel the conclusion that you are
creating a hostile learning environment requiring disciplinary action.” Id.at 804.
Id. at 804.
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speech is conveyed—a classroom where a college professor is speaking to
a captive audience of students, see Martin, 805 F.2d at 586, who cannot
“effectively avoid further bombardment of their sensibilities simply by
averting their [ears].” Hill, 120 S.Ct. at 2489. 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, 438 U.S.
at 747, 98 S.Ct. 3026. 185
The Second Circuit’s decision in Vega v. Miller is also applicable here.186 In Vega,
a professor terminated by a state college sued college administrators under Section 1983
for violation of his First and Fourteenth Amendment rights. The administrators moved for
summary judgment on the basis of qualified immunity.
The district court held the
administrators were not entitled to qualified immunity, and they appealed.
background facts are as follows:
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,”
Id. at 819.
273 F.3d 460 (2nd Cir. 2001).
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“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.”188 None of the students in the class ever complained about this, but it came to
the attention of the administrators while investigating another matter.189
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.”190 Vega was advised that he would not be offered
reappointment for the upcoming school year. Vega’s contract was officially terminated,
and the supporting memorandum explained that Vega’s termination was due to his
“‘reliance on sex as a theme’ and ‘use of sexually explicit vocabulary’ in the clustering
exercise.”191 Subsequently, Vega filed suit.
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,”192 but distinguished
Vega’s conduct finding that “Vega's toleration of the students' shouted vulgarities was far
Id. at 462-63.
Id. at 463.
Id. at 467 (citing Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629
Page 37 of 79
removed from [another plaintiff’s] expression of his political views.”193 The Vega court
also noted that, while “a teacher may not be disciplined simply because a vulgar word is
contained and discussed in assigned materials, at least for students of suitable age, …
the vulgarities Vega permitted to be called out in his classroom were not part of an
etymological exploration, nor was the scene in which all of the students but one were
yelling their contributions, with two standing on chairs, an academic discussion.”194
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
not 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.196 In Hardy, the
Sixth Circuit held that a professor’s right to use the words “nigger” and “bitch” during a
classroom discussion on the power of words to marginalize and oppress outweighed the
college’s interest in regulating offensive speech.197 Hardy involved the use of
controversial words in a class identified as “Introduction to Interpersonal Communication.”
The students were to examine how language is used to marginalize minorities and other
oppressed groups in society.
The lecture included an analysis of words that have
historically served the interests of the dominant culture in which they arise.198
Id. at 468.
260 F.3d 671 (6th Cir. 2001).
See id. at 682.
See id. at 674-75.
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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.”199 Even in Vega and Cohen, the
objectionable conduct and language was related to the class material and used as part
of class assignments.200
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 speech and/or conduct served an
academic purpose or justification.
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
Id. at 679 (internal citations omitted).
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.
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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.201
Curry testified that one student previously discussed felt “attacked” and fearful” following
Plaintiff’s classroom conduct.202 Curry testified that, when asked if she wanted to speak
to Plaintiff about the incident, this student responded: “I don’t want to ever have her as a
professor again.”203 Additionally, the fact that Zachary Schools, the LSU Lab School, Port
Allen Elementary Schools, and Iberville Parish Schools had either banned Plaintiff from
their campuses or requested that LSU not allow her to mentor their student teachers due
to Plaintiff’s conduct and speech further demonstrates that Plaintiff’s conduct and speech
served no pedagogical purpose. Rather, the record supports a finding that Plaintiff’s
behavior and speech interfered with the educational opportunities of her students both in
the classroom and in the student teacher or field setting.
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
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.
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public concern. As such, “it is unnecessary for the court to scrutinize the reason for the
discipline.”204 Further, it is undisputed that Plaintiff’s speech was made while performing
her official duties of teaching and supervising student teachers. Plaintiff’s argument that
the speech was part of her pedagogical strategy is unsupported by evidence and without
merit as set forth above.
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 irrespective of that of the faculty
committee.205 Accordingly, Defendants are entitled to summary judgment on Plaintiff’s
First Amendment claims.
Connick, 461 U.S. at 146.
See Rec. Doc. No. 35-6, p. 56.
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2. Constitutional Challenge to LSU’s Sexual Harassment Policies
Plaintiff also 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 28
U.S.C. § 2201 and Fed. R. Civ. P. 57 and a permanent injunction prohibiting Defendants
from enforcing these policies on LSU faculty and students. Defendants also contend
LSU’s policies are reasonable per se for purposes of qualified immunity because the
policies are consistent with federal policies on sexual harassment. Defendants maintain
that they reasonably believed Plaintiff’s speech in violation of the policies was unprotected
under the First Amendment. LSU’s sexual harassment policies are allegedly consistent
with the United States Department of Education’s Office of Civil Rights (“OCR”) and
Department of Justice (“DOJ”) “blueprint for colleges and universities throughout the
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.”207
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
Rec. Doc. No. 35-1, p. 17, n. 21, citing Esfeller v. O’Keefe, 391 Fed. Appx. 337, 340 (5th Cir. 2010).
Page 42 of 79
LSU’s policies violate the basic constitutional requirements set forth by the Supreme
Court’s decision in Davis v. Monroe County Board of Education.208 Further, Plaintiff
contends LSU’s policy definitions are effectively the same as those held unconstitutional
by the Third Circuit in DeJohn v. Temple University.209 Relying on the Third Circuit’s
language, Plaintiff contends that “unwelcome verbal … behavior of a sexual nature,”
without any requirement of objective offensiveness or interference with a reasonable
person’s access to his or her education, encompasses any potentially sex-related speech
deemed “unwelcome” even if that person is uniquely sensitive. Citing the Supreme
Court’s decision in Papish v. Board of Curators of Univ. of Mo.,210 Plaintiff maintains that,
“[u]nder the First Amendment, a public institution may not broadly ban any sex-related
speech based simply on its potential to offend.”211 Therefore, Plaintiff contends that
LSU’s policies lack the requirement of an objective test for offensiveness and are, thus,
Plaintiff also contends Defendants’ reliance on the OCR/DOJ blueprint is irrelevant
as various university speech codes and enforcement actions have been invalidated
despite the schools’ invocation of their obligation to enforce such rules under civil rights
statutes.212 Plaintiff argues that the OCR/DOJ blueprint upon which LSU relies lacks
necessary constitutional safeguards, and “[n]o ‘interpretive guidance’ from the federal
government can alter these constitutional minimums.”213 Plaintiff contends that federal
526 U.S. 629 (1999).
537 F.3d 301 (3rd Cir. 2008).
410 U.S. 667, 670 (1973).
Rec. Doc. No. 35-1, p. 18.
Id. at p. 19, citing Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 388-89
(4th Cir. 1993); Saxe, 240 F.3d at 205-06; Rodriguez, 605 F.3d at 709 (“First Amendment principles must
guide interpretation of the right to be free of purposeful  harassment” in colleges.).
Id., quoting Miller v. Johnson, 515 U.S. 900, 923 (1995).
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agency interpretations cannot immunize universities against constitutional claims
because such pronouncements are only controlling if they do not violate the Constitution.
As the Supreme Court has stated, courts cannot “accept the contention that the State has
a compelling interest in complying with  whatever mandates [DOJ] issues.”214
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.215 Plaintiff further argues
that Cancienne’s complaint that Plaintiff used the word “pussy” somehow “telephoned” its
way into complaints regarding a student who was not present for the utterances, and was
then repeated across the sexual harassment findings and recommendations although it
was later admitted that Cancienne applied no sexual connotation to the term.216 Plaintiff
maintains Reinoso could have learned of this had he spoken to Cancienne and not relied
on what others passed along and his own assumptions.
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.217 In fact, Plaintiff contends most of the expletives and colloquialisms
Miller, 515 U.S. at 922.
Rec. Doc. No. 36-1, ¶¶ 35, 37-39.
Id., ¶ 91.
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emphasized by some witnesses admittedly did not constitute sexual harassment.218
Indeed, most of what was deemed inappropriate did not play a role in the sexual
harassment finding. Plaintiff claims that, ultimately, the sexual harassment finding “rested
on a handful of scattered, isolated utterances.”219 Thus, Plaintiff contends Reinoso’s
report “finding” that she committed sexual harassment, based in large part on conduct not
considered to be sexual harassment, “snowballed toward[s] Buchanan’s dismissal.”220
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 through LSU’s
defective sexual harassment policies.”221 Next, she claims the hearing testimony only
further advanced the same problematic information. Further, even though the committee
found sexual harassment policy violations, it did not recommend termination.
Notwithstanding this recommendation, Plaintiff claims Defendants continued to
pursue her termination based on “irrelevant evidence.”222 Plaintiff contends Alexander
rejected the committee recommendation “despite having not read the PS-104 hearing
transcript, not knowing the definition of sexual harassment the committee used, not
understanding the constitutional standard, and generally not knowing what actually
happened.”223 What has resulted, Plaintiff contends, is exactly what happens when
Id., ¶ 92.
Rec. Doc. No. 35-1, p. 21.
Id. at p. 22.
Id., citing Rec. Doc. No. 36-1, ¶ 144.
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harassment policies are not sufficiently defined or limited, and it is why she claims her
termination was unconstitutional.
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
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
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
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.
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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 similar sexually oriented behavior of an intimidating or
Defendants claim Plaintiff lacks standing to challenge the constitutionality of LSU’s
sexual harassment policies because she has been discharged and cannot be reinstated.
Plaintiff relies on the Fifth Circuit’s decision in Esfeller v. O’Keefe229 in support of her
standing to bring this claim.
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 nonacademic misconduct violations arising from a dispute he had with his former girlfriend,
who had filed a complaint with LSU police.230 The former girlfriend alleged that Esfeller
had persistently harassed and stalked her through various social networking sites and
that he had physically confronted her.231
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
Id. ¶ 24, quoting Rec. Doc. No. 1-2, p. 6 (emphasis added).
Id. at ¶ 25.
391 Fed. Appx. 337 (5th Cir. 2010).
Id. at 338.
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of conduct.232 Esfeller rejected the sanctions offered by LSU and requested a second
A second dean investigated the matter, and the same result was
Esfeller again rejected the proposed sanctions and requested a panel
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.236 Esfeller
filed suit against Chancellor O’Keefe in his official capacity and the Board, alleging inter
alia that LSU’s code of conduct is facially and as-applied overbroad and vague. The
district court denied preliminary injunctive relief, and Esfeller appealed.237
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, 183 F.3d 393, 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.” 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. See Ward v. Santa Fe
Indep. Sch. Dist., 393 F.3d 599, 606 (5th Cir.2004); Hole v. Tex. A & M
Univ., No. 04–CV–175, 2009 U.S. Dist. LEXIS 123291, at *20 (S.D.Tex.
Feb. 10, 2009). Here, however, Esfeller received a disciplinary sanction,
Id. at 339.
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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.), 587
F.3d 296, 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., 307 F.Supp.
1328, 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., 597 F.3d 747, 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.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.’”239 Although courts generally will pass on facial challenges, there is
an exception for First Amendment challenges based on overbreadth.240 Courts will
consider this doctrine as a last resort and apply it only when “the law may have a chilling
effect on the free speech rights of those not before the court.”241 A facial challenge fails
Id. at 339-40 (emphasis added).
Pounds v. Katy Independent School Dist., 517 F.Supp.2d 901, 911-912 (S.D. Tex. 2007)(quoting United
States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).
Id., citing Los Angeles Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 38, 120 S.Ct. 483,
145 L.Ed.2d 451 (1999).
West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1367 (10th Cir.2000) (citing United Reporting
Publ'g Corp., 528 U.S. at 38–39, 120 S.Ct. 483)).
Page 49 of 79
when there is no “realistic danger” that the law will “significantly compromise recognized
First Amendment protections of parties not before the Court.”242
“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.”243 Because the
application of the overbreadth doctrine is “manifestly strong medicine,” before a statute
or regulation may be invalidated on its face, the overbreadth must be “substantial.”244
“[T]here must be a realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court for it to be facially
challenged on overbreadth grounds.”245 The issue for First Amendment purposes is
whether the law in question reaches “a substantial amount of constitutionally protected
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, 484 U.S.
260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549
(1986)). The highest level of scrutiny—applied to school regulations that are
viewpoint-specific—requires the school to show that the expression would
See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80
L.Ed.2d 772 (1984).
Roberts v. Haragan, 346 F.Supp.2d 853, 871 (N.D. Tex. 2004)(quoting Board of Airport Comm'rs of City
of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987))
(internal quotations omitted).
Id., quoting Board of Airport Comm'rs, 482 U.S. at 574.
Board of Airport Comm'rs, 482 U.S. at 574, quoting City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 801, 104 S.Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)).
City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987).
Page 50 of 79
“substantially interfere with the work of the school or impinge upon the rights
of other students.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 509, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thus, for Esfeller's facial
challenge to succeed, the overbreadth must be “substantial in relation to the
[provision's] legitimate reach.” Hersh, 553 F.3d at 762.247
A First Amendment “as-applied” claim is a challenge to the statute's application to
the litigants' own expressive activities.248 The underlying First Amendment standard for
an as-applied challenge is no different than the standard for a facial challenge.249
However, the Fifth Circuit has noted that “[c]onfusion abounds over the scope of asapplied and other types of First Amendment challenges that a plaintiff can pursue when
challenging a statute.”250
Plaintiff relies primarily on several opinions from circuits outside of the Fifth
Circuit.251 Plaintiff relies on the Third Circuit’s decision in Saxe v. State College Area
School District where the court struck down a public school district's anti-harassment
Esfeller, 391 Fed. Appx. at 341.
Jornaleros de Las Palmas v. City of League City, 945 F.Supp.2d 779, 798 (S.D. Tex. 2013)(citing
Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803, 104 S.Ct.
2118, 80 L.Ed.2d 772 (1984)).
Id. (citing Citizens United v. Federal Election Comm'n, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d
Justice v. Hosemann, 771 F.3d 285, 292 (5th Cir. 2014)(citing Scott Keller & Misha Tseytlin, Applying
Constitutional Decision Rules Versus Invalidating Statutes In Toto, 98 Va. L.Rev. 301, 307 (2012) (“The
Supreme Court has explicitly acknowledged that there is much confusion over the definitions and attributes
of facial, as-applied, and overbreadth challenges.”(citing United States v. Stevens, 559 U.S. 460, 130 S.Ct.
1577, 1587, 176 L.Ed.2d 435 (2010)))).
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, 51 F.3d 591, 596 (5th Cir. 1995), the
court struck down a sexual harassment policy for city police officers stating: “Where pure expression is
involved,” anti-discrimination law “steers into the territory of the First Amendment.” This is especially true
because, as the Fifth Circuit noted, when anti-discrimination laws are “applied to … harassment claims
founded solely on verbal insults, pictoral or literary matter, the statute[s] impose content-based, viewpointdiscriminatory restrictions on speech.” Id. at 596-97. Nevertheless, DeAngelis is a case with very different
facts and is not instructive to LSU’s sexual harassment policies presented here.
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policy for overbreadth. 252 The anti-harassment policy in Saxe provided that:
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
....”254 There, the Third Circuit first noted that the policy exceeded what is constitutionally
permissible under Tinker by not only prohibiting speech that led to actual interference of
a student's educational environment, but also speech that was merely made with the
purpose of causing such disruptions.255 Second, the court noted that even if the “purpose”
language was ignored, the examples of prohibited “harassment” contained in the policy
do not rise to the level of substantial disruption.256 Third, the Saxe policy prohibited
speech that either had the purpose or effect of creating substantial interference or created
a hostile educational environment.257 The court stated: “Because the Policy's ‘hostile
240 F.3d 200 (3rd Cir. 2001).
Id. at 218.
Id. at 220.
Id. at 217.
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environment’ prong does not, on its face, require any threshold showing of severity or
pervasiveness, it could conceivably be applied to cover any speech about some
enumerated personal characteristics the content of which offends someone.258
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, 481 U.S. 537,
549, 107 S.Ct. 1940, 95 L.Ed.2d 474 (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
avoid the objectionable speech. See, e.g., Aguilar, 87 Cal.Rptr.2d 132, 980
P.2d at 871–73 (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.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
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 antiharassment law, which imposes liability only when harassment has “a
systemic effect on educational programs and activities,” Davis, 526 U.S. at
633, 119 S.Ct. 1661 (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
Id. at 217.
Id. at 209.
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and name-calling” that the Davis Court explicitly held were insufficient for
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.”261 Thus, Saxe is applicable to the issue herein only to
the extent that it holds that a “severe or pervasive” requirement should be in a policy.
Plaintiff also relies heavily on another Third Circuit decision, DeJohn v. Temple
University,262 and it is the strongest case in her favor. In DeJohn, the plaintiff filed suit
against Temple University arguing that the following university policy governing sexual
harassment was overbroad:
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
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
Id. at 210-11 (emphasis original).
Id. at 210.
537 F.3d 301 (3rd Cir. 2008).
Id. at 305.
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The DeJohn court noted: “It is well recognized that ‘[t]he college classroom with
its surrounding environs is peculiarly the “marketplace of ideas [,]”’265 and ‘[t]he First
Amendment guarantees wide freedom in matters of adult public discourse.’266 Discussion
by adult students in a college classroom should not be restricted.”267 The DeJohn Court
began its analysis by explaining that “there is no ‘harassment exception’ to the First
Amendment's Free Speech Clause; that is, ‘we have found no categorical rule that divests
harassing speech, as defined by federal anti-discrimination statutes, of First Amendment
protection.’”268 The court found the policy at issue in DeJohn overbroad because the
policy focused on the motive of the speaker and not just the effect the speech had on the
learning environment.269 The court reached this conclusion through a careful application
of the Supreme Court's ruling in Tinker, which requires that a school must show that
speech will cause a material or substantial disruption before prohibiting it.270 Temple's
inclusion of regulation based on the speaker's intent was “contrary to Tinker's requirement
that speech cannot be prohibited in the absence of a tenable threat of disruption.”271
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.’”272 Thus, “[a]bsent any requirement akin to a showing of
severity or pervasiveness—that is, a requirement that the conduct objectively and
Id. at 315, quoting Healy, 408 U.S. at 180, 92 S.Ct. 2338).
Id., quoting Fraser, 478 U.S. at 682, 106 S.Ct. 3159.
Id. at 316 (quoting Saxe, 240 F.3d at 210 (footnote omitted)).
Id. at 317.
Id.; see also Tinker, 393 U.S. at 509, 89 S.Ct. 733.
DeJohn, 537 F.3d at 317.
Id. at 317, quoting Saxe, 240 F.3d at 317.
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subjectively creates a hostile environment or substantially interferes with an individual's
work—the policy provides no shelter for core protected speech.”273
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, 89 S.Ct. 733. As we observed
in Saxe, while the precise scope of this language is unclear, Saxe, 240 F.3d
at 217, we do believe that a school has a compelling interest in preventing
harassment. Yet, unless harassment is qualified with a standard akin to a
severe or pervasive requirement, a harassment policy may suppress core
It is important to note, however, that the DeJohn court did not suggest that all antiharassment 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.”275 Further, relevant to the present
case, the DeJohn court suggested that Temple's policy could have provided shelter for
protected speech if it “contained a requirement that the conduct objectively and
subjectively create[d] a hostile environment or substantially interfere[d] with an
The Court also notes that there is a distinction between a
Id. at 317-18, citing Saxe, 240 F.3d at 210–11 (referencing Davis Next Friend LaShonda D. v. Monroe
County Bd. of Educ., 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (“[I]n the context of
student-on-student harassment, damages are available only where the behavior is so severe, pervasive,
and objectively offensive that it denies its victims the equal access to education that Title IX is designed to
Id. at 319-20 (citations omitted).
Id., citing Saxe, 240 F.3d at 210.
Id. at 318 (emphasis added).
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university’s obligation to regulate the classroom speech of its students and that of its
faculty. Indeed, the university has a responsibility and obligation to ensure that its
students are not being harassed or abused by those it has hired to educate.
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
The Court has also considered the Ninth Circuit’s decision in Cohen v. San
Bernardino Valley College277 which is, in the Court’s view, the most factually analogous
to the case before the Court. In Cohen, a tenured professor brought a Section 1983
action against public community college officials in response to a student grievance
claiming sexual harassment which allegedly violated the professor’s First Amendment
rights. Cohen taught a remedial English class wherein one student became offended by
Cohen’s repeated focus on topics of a sexual nature, his use of profanity and vulgarities,
and by his comments she believed were directed intentionally at her and other female
students in a humiliating and harassing manner.278 During a particular class, Cohen
began a class discussion on pornography and played “devil’s advocate” by asserting
92 F.3d 968 (9th Cir. 1996).
Id. at 970.
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Cohen proceeded to give the students an assignment
discussing pornography, and the complaining student asked for an alternative
assignment. When Cohen refused to accommodate this request, the student stopped
attending Cohen’s class and received a failing grade.280 The student then complained to
the English Department and filed a formal written student grievance pursuant to a new
sexual harassment policy implemented by the university.281 The Policy in Cohen states
Sexual harassment is defined as unwelcome sexual advances, requests for
sexual favors, and other verbal, written, or physical conduct of a sexual
nature. It includes, 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.283 Cohen appealed this decision to
the Board which considered the matter with new hearings. Both Cohen and the student
were represented by attorneys, and each of them testified. Additionally, several students
came forward and testified about the sexual nature of Cohen’s teaching material and his
Id. at 971.
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frequent use of derogatory language, sexual innuendo, and profanity.284 Ultimately, the
Board found Cohen in violation of the policy, ordered him to take specific corrective
actions, and warned him that further violation of the policy would result in further discipline
“up to and including suspension or termination.”285
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 as
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
Id. at 972.
Page 59 of 79
Nevertheless, despite holding the policy unconstitutionally broad, the Cohen court
explicitly found that the university officials were entitled to qualified immunity in their
implementation of the policy. The court held: “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 Cohen's rights. … We AFFIRM IN PART
that aspect of the district court's judgment which held that the individual officials were
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 grievance; 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 studentteachers off campus. Perhaps the most significant distinction between Cohen and the
Id. at 973.
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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.288 The district court distinguished the Ninth Circuit’s decision in Cohen,
finding that “the policy in that case was ‘different and narrower’ than the one at issue
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 impermissible reason, 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, 429 U.S. 274, 281–83 &
n. 1, 97 S.Ct. 568, 50 L.Ed.2d 471 (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
Id. at 464.
Id. at 465.
Id. at 468-69.
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have taken the adverse action in the absence of the impermissible reason.
Id. at 287, 97 S.Ct. 568. 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 fired 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.291
The Vega court ultimately followed Cohen in granting qualified immunity to the
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, 541 F.2d 949, 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.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
Id. at 469 (emphasis added).
Id. at 469-70 (emphasis added).
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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 severe, and
the definitions and examples set forth in the policy emphasize that the offending conduct
must be severe and pervasive as expressed by the words “unwelcome,” “persistent,”
“unwanted,” “deliberate,” “repeated,” “intimidating,” and “demeaning.”293 As set forth
above, the Plaintiff must establish that there exists no set of circumstances under which
this policy would be valid. Plaintiff has failed to carry this burden, and summary judgment
is appropriate in favor of Defendants on the facial challenge to LSU’s sexual harassment
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.”294 “In ascertaining the constitutional validity of a restriction on speech,
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, 492 U.S. 302, 354, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Scalia, J., dissenting).
See also RNC v. FEC, 698 F.Supp.2d 150, 157 (D.D.C.2010) (“In general, a plaintiff cannot successfully
bring an as-applied challenge to a statutory provision based on the same factual and legal arguments the
Supreme Court expressly considered when rejecting a facial challenge to that provision. Doing so is not so
much an as-applied challenge as it is an argument for overruling a precedent.”), summ. aff'd, RNC v. FEC,
––– U.S. ––––, 130 S.Ct. 3544, 177 L.Ed.2d 1119 (2010).
Page 63 of 79
the Court must (1) first assess whether the speech deserves protection, (2) then
determine the type of forum involved, and (3) finally decide whether the proffered
justification for the state's restriction satisfies the appropriate standard.”295 Because the
Court has already held that the challenged speech is not protected by the First
Amendment in the classroom setting, Plaintiff’s as-applied challenge to the policies as
restricting protected speech fails. Further, LSU’s proffered justification for the prevention
of sexual harassment and abusive conduct towards its students by faculty members
outweighs any interest Plaintiff has in such speech. The Court finds that the LSU policies
are narrowly tailored to promote a substantial government interest such that the policies
survive intermediate scrutiny.296
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 were
facially unconstitutional, the Defendants are entitled to qualified immunity for the same
reasons set forth by the Cohen and Vega courts. Considering Plaintiff’s conduct, LSU’s
Netherland v. City of Zachary, La., 626 F.Supp.2d 603, 606 (M.D. La. 2009)(citing Cornelius v. NAACP
Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
See Horton v. City of Houston, 179 F.3d 188, 194 (5th Cir.1999).
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obligation to protect its students from harassment and abuse, and LSU’s obligation to
protect its academic and professional reputation in the community, the Court finds that
the actions taken against Plaintiff were objectively reasonable under the facts of this case.
The record in this case is replete with examples of vulgar and demeaning language and
conduct by the Plaintiff. As succinctly stated in Vega, in view of the vulgarities and
conduct expressed by Plaintiff, “no reasonable jury could fail to find that the Defendants
would have terminated [Plaintiff] solely because they considered [her] conduct beyond
the bounds of proper classroom performance, even if [LSU] had no sexual harassment
policy.”297 Accordingly, summary judgment is granted in favor of Defendants on Plaintiff’s
constitutional challenges to LSU’s 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
a. Parties’ Arguments
Plaintiff claims that her termination violated her Fourteenth Amendment right to
She contends that the “bare recital of steps LSU took”298 cannot
demonstrate the “notice and opportunity to be heard” to which she was entitled as a
tenured professor. Plaintiff argues that the charges against her were “never clear, at any
stage of the process”299 because of Reinoso’s classification of his “finding” as sexual
harassment and how decision-makers thereafter relied on this “finding.” Plaintiff claims
Vega, 273 F.3d at 470.
Rec. Doc. No. 35-1, p. 23.
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that, when she met with Reinoso initially, she was questioned but not given specific
information regarding the allegations against her or those making the claims.300 Further,
the HRM-EEO findings that were later provided to her consisted only of conclusions and
“examples” of “allegations” that summarized the complete findings.301 Thus, Plaintiff
claims that the lack of specificity regarding her alleged wrongs limited her ability to
properly defend herself.
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.302 Plaintiff claims that the one-sided nature of who Reinoso chose to interview,
failing to interview Cancienne, Plaintiff’s non-complaining students, and other witnesses,
asking leading questions and “perhaps browbeating witnesses,”303 mischaracterizing
testimony, and failing to connect the evidence to the conclusions “is fatal to any notion of
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 also
relied on the report over the committee recommendation. Thus, Plaintiff claims these
flawed materials and findings form the basis of the termination recommendation to the
SUMF ¶ 78.
Rec. Doc. No. 35-1, p. 31.
Id., citing Rec. Doc. No. 32-2, pp. 80-92.
Id., citing Rec. Doc. No. 36-1, ¶ 76.
Page 66 of 79
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.”305 Plaintiff claims that bias is demonstrated here because
Reinoso failed to particularize what conduct constituted sexual harassment and affected
all subsequent levels of the decision-making process.
Plaintiff further claims these
“inherent deficiencies” are critical and do not constitute the notice and opportunity to be
heard guaranteed by the Due Process Clause.306
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,
Rec. Doc. No. 35-1, p. 32, quoting Clements v. Airport Authority of Washoe County, 69 F.3d 321, 333
(9th Cir.1995). The Court notes that the Clements case is non-binding and factually distinguishable from
the present case.
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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.307 Further, Plaintiff acknowledges that her supervisor Dr. Cheek informed her of
the initial complaint from Cancienne and requested that she address the complaint, which
she did by e-mail.308 Despite notice of this complaint, and after Plaintiff’s ostensible
“apology” e-mail to Cancienne, Defendants contend Plaintiff continued to make
inappropriate and offensive remarks to the Iberville Parish staff. Rather than modify her
behavior, Defendants contend Plaintiff unilaterally decided, without consultation or input
from her supervisor, to send other supervisors for education students in Iberville Parish.
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.309 Plaintiff’s response admits that she was
given a “set of complaints” although Plaintiff characterized these complaints as
“accusations and allegations that amount to hearsay.”310 Plaintiff’s response further
consists of denials of specific incidents brought to her attention, specifically a student’s
right to confidentiality regarding the student’s disability status; telling students not to get
pregnant while in the program; and regarding the sexual orientation of women who wear
Further, Defendants note the undisputed fact that the faculty members of the PS-
See Rec. Doc. No. 36-1, ¶¶ 16-18.
Id., ¶ 24.
Rec. Doc. No. 36-2, pp. 68-72.
Id., p. 69.
Id., pp. 69-72.
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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.312 The
committee found that Plaintiff’s behavior, both on and off campus, created a “hostile
learning environment.”313 The Defendants maintain that the committee hearing transcript
establishes that numerous witnesses testified, and Plaintiff had the opportunity to
question those witnesses and present witnesses on her own behalf.314
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
Rec. Doc. No. 36-2, pp. 74-76.
Id., p. 75.
Rec. Doc. No. 36-3.
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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.”315 Additionally, Reinoso,
Curry, and Dean Andrew all testified at the committee hearing, and Plaintiff was permitted
to question each of them. When Alexander rejected the committee’s recommendation
and recommended Plaintiff’s termination to the Board, Plaintiff was permitted to appeal
to Alexander and appear before the Board before the final decision was made.
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.316 The type of hearing necessary—the
process due—is a function of the context of the individual case.317 Due Process is not a
rigid and fixed concept, but, rather, it is “flexible and calls for such procedural protections
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, 809 F.3d 231, 236 (5th Cir.
2015)(citing Texas Faculty Association v. University of Texas at Dallas, 946 F.2d 379, 384 (5th Cir.1991);
Russell v. Harrison, 736 F.2d 283, 289 (5th Cir.1984)).
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as the particular situation demands.”318 To determine the requisite process, a court must
analyze the “interests at stake in a given case.”319 Mathews provides the three distinct
interests to consider:
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.321
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
Babin v. Breaux, 587 Fed.Appx. 105, 110 (5th Cir. 2014) (per curiam) (citing Mathews, 424 U.S. at 334–
35, 96 S.Ct. 893).
Jones, 809 F.3d at 236, quoting Mathews, 424 U.S. at 335, 96 S.Ct. 893.
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
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c. Substantive Due Process
“Public officials violate substantive due process rights if they act arbitrarily or
capriciously.”322 A public employer's decision to terminate a tenured employee's property
interest in continued employment is arbitrary or capricious if the decision “so lacked a
basis in fact” that it may be said to have been made “without professional judgment.”323
The terminated employee “must show that the decision was ‘made without a rational
connection between the known facts and the decision or between the found facts and the
The standard for establishing a substantive due process violation is
“demanding”325 because “a federal court is generally not the appropriate forum in which
to review the multitude of personnel decisions that are made daily by public agencies.”326
“The standard may be even more demanding in the context of higher education personnel
decisions because of repeated refusals by the Supreme Court, as well as this court, to
‘use the Fourteenth Amendment as an excuse to regulate the internal affairs of public
universities.’”327 Nevertheless, the Fifth Circuit has “also observed that ‘[t]his measure of
judicial restraint ... does not require slavish deference to a university's arbitrary
deprivation of a vested property right.’”328
Bd. of Regents of University of Texas System v. Walker, 142 F.3d 813, 819 (5th Cir. 1998)(citing Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562–63 (5th Cir.2003).
Mills v. Garcia, 650 Fed. Appx. 873, 878 (5th Cir. 2016)(quoting Texas v. Walker, 142 F.3d 813, 819
(5th Cir. 1998)(internal quotation marks omitted).
Id. (quoting Lewis v. Univ. of Tex. Med. Branch, 665 F.3d 625, 631 (5th Cir. 2011) (per curiam) (quoting
Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999))).
Id. (quoting Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992)).
Id. (quoting Honore v. Douglas, 833 F.2d 565, 569 (5th Cir. 1987) (citing Bishop v. Wood, 426 U.S. 341,
96 S.Ct. 2074, 48 L.Ed.2d 684 (1976)))(internal quotation marks omitted).
Jones, 809 F.3d at 240, quoting Tex. Faculty, 946 F.2d at 385.
Id. (collecting cases).
Page 72 of 79
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
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.331
The record is devoid of evidence of
See Waters v. Churchill, 511 U.S. 661, 680 (1994)(holding that a government employer may make
credibility determinations and that its failure to interview additional witnesses who would have supported
the plaintiff's claim was immaterial as “[m]anagement can only spend so much of their time on any one
Klingler v. University of Southern Mississippi, USM, 612 Fed. Appx. 222, 231 (5th Cir. 2015)(quoting
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052 (5th Cir.1997) (citation omitted)).
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.,
citing Valley, 118 F.3d at 1052-53. Plaintiff has offered no evidence that any adjudicator’s mind was
“irrevocably closed” prior to the adjudication. Id., quoting Valley, 118 F.3d at 1052. The Fifth Circuit also
stated: “We have further recognized in academic contexts that “a due process hearing is not rendered
constitutionally inadequate solely because university administrators are asked to review their own
decisions.” Id., citing Tex. Faculty Ass'n v. Univ. of Tex. at Dall., 946 F.2d 379, 388 (5th Cir.1991); see also
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426 U.S. 482, 497, 96 S.Ct. 2308, 49 L.Ed.2d
Page 73 of 79
improper communications or predetermined conclusions by investigators. Plaintiff has
offered no evidence of bias other than a decision that runs contrary to her subjective
belief, which is not summary judgment evidence.
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 antiharassment 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,332 a case involving the
termination of a tenured professor at LSU’s Medical School (“LSUMS”). The plaintiff
specialized in the treatment of high-risk pregnancies and performed consultations on
patients referred by a local obstetrician.333 The referring physician came under scrutiny
and was subjected to investigatory hearings due to allegations that he was harming
patients by over-utilizing high-risk procedures. Based on this development, the Chair of
the Obstetrics-Gynecology department at the medical school encouraged the plaintiff not
to participate in and support the referring physician’s practices.334 When the plaintiff
refused, the Chair sent a formal letter of complaint and recommended the
commencement of termination proceedings to the LSUMS’s Chancellor, Dr. Mervin L.
1 (1976) (“A showing that the Board was ‘involved’ in the events preceding this decision ... is not enough
to overcome the presumption of honesty and integrity in policy makers with decisionmaking power.”).
248 F.3d 1140, 2001 WL 85921 (5th Cir. 2001).
Id. at *1.
Page 74 of 79
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.336 This review resulted in a finding
that the plaintiff engaged in “very questionable obstetrical practices.”337 In response to
this conclusion, the committee recommended further investigation, and Dr. Trail sought
independent review by the American College of Obstetricians and Gynecology (“ACOG”).
The ACOG found that sixteen of the nineteen consultations that it reviewed were
unsatisfactory due to inadequate documentation, and two clearly fell below the standard
of care required by a physician.338
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.339 The plaintiff sued under Section 1983 and alleged
that his procedural and substantive due process rights were violated. The district court
granted summary judgment in favor of LSU and the LSU defendants, and the plaintiff
Page 75 of 79
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.341 The
Fifth Circuit rejected these arguments and held as follows:
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. 759 F.2d 1224, 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.” 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, 470 U.S. 532, 546, 105 S.Ct. 1487,
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, 759 F.2d at 1228. 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, 469 F.2d 829, 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
id. Similarly, appellant argues that the participation of an attorney in the
charging and hearing phases of the termination proceedings made the
Id. at *4.
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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
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.343 Further, the court stated: “A public
employer's termination of an employee does not violate substantive due process unless
the determination ‘so lacked a basis in fact that their decision to terminate him was
arbitrary or capricious, or taken without professional judgment.’344
The fact that
reasonable minds could disagree on the propriety of the decision is insufficient to defeat
a public official's qualified immunity.”345 The Fifth Circuit rejected the substantive due
process challenge, finding as follows:
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
Id., citing State of Texas v. Walker, 142 F.3d 813, 819 (5th Cir.1998).
Id. at *5, quoting Walker, 142 F.3d at 819.
Id., citing Walker, 142 F.3d at 819.
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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.347
Although in the present case, President Alexander rejected the faculty committee’s
recommendation to retain and censure Plaintiff rather than terminate, the faculty
committee was also unanimous in finding that she had violated both of LSU’s sexual
harassment policies. Further, President Alexander was within his rights to reject the
committee’s recommendation and present his own recommendation to the Board, as long
as such a recommendation was not arbitrary or capricious. Another important distinction
is that, in Honore, unlike the present case, the plaintiff presented sufficient evidence to
show that his speech criticizing a graduate school’s admission policy was a matter of
public concern.348 In light of the nature of the charges brought against Plaintiff, the
committee’s findings, and the fact that Plaintiff had an opportunity to address the Board
before it decided to adopt Alexander’s recommendation, the Court cannot find that the
decision to terminate Plaintiff was arbitrary and capricious, and the Court finds that the
circumstances are factually distinct from those in Honore.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s due
833 F.2d 565, 567-70 (5th Cir. 1987).
Id. at 567, 569.
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For the reasons set forth above, Defendants’ Motion for Summary Judgment349 is
GRANTED, and Plaintiff’s Motion for Summary Judgment350 is DENIED. Plaintiff’s claims
are dismissed with prejudice.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on January 10, 2018.
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
Rec. Doc. No. 30.
Rec. Doc. No. 35.
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