Faulkner v. University Of Cincinnati et al

Filing 38

ORDER denying 35 Defendants' Motion for Summary Judgment. Signed by Judge Sandra S Beckwith on 3/23/16. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mark Faulkner,
Plaintiff,
vs.
University of Cincinnati, et al,
Defendants.

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Case No. 1:14-cv-758

ORDER
Before the Court is the Defendants’ motion for summary judgment. (Doc. 35)
Defendants seek judgment on Plaintiff’s First Amendment claim, and his claims
challenging the University of Cincinnati’s discriminatory harassment policies as
unconstitutionally vague and overbroad. Plaintiff opposes the motion (Doc. 36), and
Defendants have filed their reply (Doc. 37). For the following reasons, the Court will
deny Defendants’ motion.
Factual Background
Mark Faulkner worked at the University of Cincinnati in various non-faculty
positions from 1985 through July 2015. Faulkner retired from his position as Senior
Associate Vice President in the University’s Department of Information Technology in
July 2015. He immediately began work as a consultant to the University, at the request
of his departmental director, Dr. Nelson Vincent. Faulkner entered into a consulting
agreement with Insight Global, initially working part-time training staff and aiding Dr.
Vincent in transition tasks. In September 2015, Faulkner agreed to assume the duties
of a UC Assistant Vice President who took an unexpected medical leave. Faulkner

currently supervises five people in this position.
Faulkner’s lawsuit arises from events that began in 2013. The IT department
decided to develop and institute a “Leadership Academy” to provide training to
departmental staff on leadership skills. An outside consultant, Megan Clark, was hired
to develop a curriculum for the Academy and to run the sessions. Faulkner was
appointed to a committee responsible for developing the Academy, but he did not
participate in selecting the individuals who would provide the training and lectures. The
first year’s group of trainees (for which there were more applications than spaces
available) was composed of Dr. Vincent’s direct reports, and individuals who reported to
those people. Clark asked Faulkner if he would give a lecture to the first meeting of the
Academy on the subject of “servant leadership.” Dr. Vincent described the philosophy
of “servant leadership” as a management style focused on empowering others to
effectively perform their jobs. (Vincent Dep. at 13) Faulkner was reluctant to give the
lecture but eventually agreed to do so.
The first session of the Academy was held on September 17, 2013. Clark led an
“icebreaker” exercise to begin the day’s session. She asked the participants to respond
to a series of words and phrases by moving out of a line in one direction or the other,
based on their reactions to the words. The words and phrases she used included
phrases such as “I am a Republican,” “I am a Christian,” and “I am shy.” Faulkner made
a short presentation in the morning, and gave his “Servant Leadership” talk after lunch,
using a written outline as a guide. His presentation included a video excerpt of a
speech by Dr. Martin Luther King; references to a book about the Southwest Airlines
business model and successful growth; a pamphlet called “The Servant as Leader;” and
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several references to Jesus, including his directive to lead by service, and a story from
the Book of Matthew. Faulkner described Jesus as an example of a leader who
articulates “clear and crisp” values. He specifically stated that his views about religion
and Jesus were his own views that guided his own life, and were not those of the
University nor of the audience. Faulkner recalls that approximately 20-22 departmental
members were present, and none of them expressed any objections or discomfort about
anything that he said during his presentation or during the conference.
About a month later, in October, Donna Bowman, UC’s Assistant Director of the
Office of Equal Opportunity and Access, received an anonymous complaint alleging that
“religion and politics were brought up” during the icebreaker session of the Academy on
September 13. The anonymous complaint identified Faulkner and Nelson Vincent as
responsible for these transgressions. Bowman began investigating the anonymous
complaint and chose to interview two attendees, Melissa Berling and Josette Riep, as
well as Faulkner, Dr. Vincent, and Megan Clark. Bowman chose Berling and Riep
because she had worked with them in the past on other issues. Bowman testified that
“employees were saying that they felt that [the Academy] was a revival” and that
Faulkner had proclaimed he was “there that day because God had called him there.”
(Bowman Dep. at 27) Berling claimed that “somebody asked for amens,” but no one
else Bowman interviewed confirmed that claim.
Bowman called Faulkner one day in early 2014 and said she needed to speak
with him that morning. According to Faulkner, she asked if he had heard the “servant
leadership” presentation in church, whether he had “anointed himself” as a leader, and if
he had asked the group for an “Amen.” Faulkner denied saying these things, and felt
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that Bowman was attacking him. He offered to give her a copy of his written outline, but
he testified that she never followed up with him in order to obtain it.
Bowman completed her investigation and recommended that “corrective action”
be taken. Her letter/report is dated February 27, 2014 and is addressed to Faulkner
and Vincent. Bowman stated that she was notified of a complaint of “employee
misconduct” against both of them. After investigating the complaint, she concluded that
“corrective action by the University is warranted.” She concluded that UC’s Affirmative
Action/EEO procedures, non-discrimination policy, and the discriminatory harassment
policy were violated during the Leadership Academy, because “religion and politics were
brought up directly and indirectly during the ice-breaker session ...”. With respect to
Faulkner, the letter stated: “By his own admission, Mark Faulkner did quote from the
Bible based upon his own beliefs which he stated were his, and only his examples.
Going forward, Mr. Faulkner should refrain from using biblical quotations during
presentations and work related interactions.” Bowman also recommended that the
entire department participate in a “Sensitivity and Cultural Differences” training program
within the next six months. (Faulkner Dep. Ex. 4A)
Bowman initially testified in her deposition that Faulkner’s actions did not violate
any University policies, but that “his actions made some employees feel uncomfortable
based on his religious statement. ... We ask that our management not make the work
environment noninclusive for employees.” (Bowman Dep. at 33-34.) Both her letter and
her later testimony make clear that she concluded that Faulkner violated the University’s
discriminatory harassment policy because his comments “made their employees feel
uncomfortable ...” and “... creates a workplace which can be considered hostile to
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perhaps an atheist that could have been in the audience.” (Bowman Dep. at 39)
Faulkner was concerned about Bowman’s letter, and worried that the episode
and the “corrective action” would reflect badly on him, or result in some negative
perceptions about him or his abilities. He also testified that he was told he could not
give his “Servant Leadership” presentation to future Leadership Academy classes.
(Faulkner Dep. at 87-88) He discussed the situation with his colleague Josette Riep
(whom Bowman conceded did not share Berling’s complaints about Faulkner’s
presentation), who suggested that he contact Bluzette Marshall, UC’s Chief Diversity
Officer. He did so and met with Marshall, showed her the letter from Bowman, and
discussed his concerns. Marshall offered to meet with UC’s Human Resources group to
discuss Faulkner’s concerns. Marshall testified that she reviewed Bowman’s letter and
listened to Faulkner’s description of receiving it, and felt as though there was a
“disconnect” in communications, and she wanted to understand more about the
situation. (Marshall Dep. at 22) Marshall offered to help facilitate a discussion about
Faulkner’s concerns, and she contacted Bowman, Erin Ascher (Bowman’s supervisor),
and Tanya Ladd, all three of whom were signatories on Bowman’s February 27 letter.
Marshall subsequently met with Bowman and Ladd; Erin Ascher, the HR
Director, had planned to attend but was not available at the last minute. Marshall
wanted to learn more about the circumstances leading to Bowman’s letter, and shared
her concerns about the prohibition on Faulkner’s speech. Bowman and Ladd did not
share any information about the situation with Marshall, so Marshall sent a follow-up
email to Ascher, Bowman and Ladd, suggesting that the letter be revised to alter the
prohibition on “biblical references.” (Marshall Dep. at 30-32) Asher responded to
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Marshall by saying it was inappropriate for her to contact Ascher’s staff directly, and that
further conversations should take place “offline.” (Id. at 33) Marshall then met with Bob
Aumbach, UC’s Vice President for Administration and Finance and Ascher’s supervisor.
Aumbach did not give Marshall any information about Faulkner or the February 27
letter, but told Marshall that the letter would not be placed in Faulkner’s personnel file.
Marshall was also involved in a subsequent meeting with Ascher, Ambach, Faulkner,
and representatives of the General Counsel’s office. (Marshall Dep. at 39-40)
Ascher sent a letter to Faulkner and Nelson on June 24, 2014, stating that
concerns about Bowman’s letter had come to her attention. Given those concerns,
Ascher asked the University’s Office of General Counsel to assist in further review of
the situation. She invited Faulkner and Vincent to contact her or Kenya Faulkner, VP of
Legal Affairs, if they had further questions or concerns. (Bowman Dep. Ex. E)
Faulkner filed his original complaint on September 25, 2014 against the
University of Cincinnati, its President Santa Ono, Donna Bowman and Erin Ascher. The
individual defendants are all sued solely in their official capacity. All of the Defendants
moved to dismiss Faulkner’s claims on a variety of grounds. This Court granted in part
and denied in part the motions, dismissing all claims against President Ono, and
Faulkner’s Title VII claim against the University. The Court dismissed a portion of
Faulkner’s First Amendment claim under Garcetti v. Ceballos, 547 U.S. 410 (2006),
after concluding that he was not speaking as a private citizen on a matter of public
concern when he gave the presentation.
However, the Court denied dismissal of the entirety of this claim, finding that the
broadly worded ban on any biblical references in “... future lectures or in work related
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interactions ... could apply to consensual conversations with colleagues, to religious
symbolic speech, and to ‘interactions’ of all sorts that might occur outside of the
classroom or officially sanctioned University-sponsored groups.” (Doc. 15 at 12)
Faulkner is seeking prospective injunctive relief against this broad ban, and the Court
allowed his claim to proceed. The Court also denied dismissal of Faulkner’s
constitutional challenges to the University policies cited in Bowman’s letter, finding that
the doctrines of vagueness and overbreadth may be raised in civil suits such as this.
Following entry of this Order on March 23, 2015, the parties participated in a
mediation session with Magistrate Judge Wehrman. They were not successful in
resolving the suit; but later the same day, July 23, 2015, Faulkner received a letter from
Bowman “amending” her February 27, 2014 “corrective action” letter. Bowman’s letter
informed Faulkner: “The sentence reading ‘Going forward Mr. Faulkner should refrain
from using biblical quotations during presentations and work related interactions’ is
removed. The sentence should be substituted with the following: “Going forward, Mr.
Faulkner should be mindful of how his comments can be interpreted by his colleagues
and be respectful that they may have different views.” (Doc. 32-1, Faulkner Dep. Ex. 6)
DISCUSSION
Summary Judgment Standards
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.” Fed. R. Civ. P. 56(a). An assertion of an undisputed fact must be
supported by citations to particular parts of the record, including depositions, affidavits,
admissions, and interrogatory answers. The party opposing a properly supported
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summary judgment motion “'may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that there is a genuine issue for
trial.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation
omitted).
The party bringing the summary judgment motion has the initial burden of
informing the district court of the basis for its motion and identifying portions of the
record that demonstrate the absence of a genuine dispute over material facts. Mt.
Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th
Cir. 2002). Once that occurs, the party opposing the motion then may not "rely on the
hope that the trier of fact will disbelieve the movant's denial of a disputed fact" but must
make an affirmative showing with proper evidence in order to defeat the motion. Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
The burden is on the non-moving party to “present affirmative evidence to defeat
a properly supported motion for summary judgment...,” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute.
Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Electric
Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court must assess
“whether there is the need for trial — whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Id. at 250. “If the evidence is merely
colorable, ... or is not significantly probative, ... the court may grant judgment.”
Anderson, 477 U.S. at 249-50 (citations omitted).
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The court construes the evidence presented in the light most favorable to the
non-movant and draws all justifiable inferences in the non-movant's favor. United
States v. Diebold Inc., 369 U.S. 654, 655 (1962).
Standing: Defendants contend that because Faulkner retired from his official
position at the University in July 2015, he no longer has standing to pursue his claims
challenging the University’s policies. They cite Savage v. Gee, 665 F.3d 732 (6th Cir.
2012), where the court of appeals affirmed the dismissal of a former professor’s claims
against the university because he resigned from the faculty after he filed suit. He had
no continuing employment relationship with the University, and could not show that he
had a reasonable expectation of any imminent enforcement of the challenged
harassment policies against him. And the prior investigation of the professor’s conduct
was not the type of concrete harm sufficient to confer standing in view of his departure.
The Court concludes that Faulkner’s retirement does not deprive Faulkner of
standing to prosecute his claims in this case. Immediately upon his retirement, he
became a University consultant and has continued working on campus and in the IT
department. Bowman testified that the University’s anti-discrimination and antiharassment policies apply to all University consultants and contractors, and that the
University does not want “any incidents going forward” with regard to Faulkner.
(Bowman Dep. at 68-69) Faulkner’s paycheck is coming through a different source, but
that does not exempt him, as an on-campus consultant, from complying with all
University policies and procedures.
The Court also rejects the Defendants’ suggestion that Bowman’s retraction of
the broad ban on biblical references (and its replacement with an admonishment to “be
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respectful” of his colleagues’ view) disposes of or moots Faulkner’s claims. As Faulkner
persuasively argues, the circumstances surrounding Bowman’s initial investigation give
rise to a reasonable inference of a less than thorough or objective investigation of one
anonymous complaint. Bowman chose to interview only two of the more than 20
attendees simply because she knew those two women. Only one of the two described
Faulkner’s presentation as a “revival” and ascribed comments to Faulkner that neither
Vincent nor Riep recalled.
Moreover, after Marshall attempted to discuss Faulkner’s concerns with Ascher
and Bowman, she was told that such conversations must occur “offline.” Faulkner was
then informed that the General Counsel’s office would review Bowman’s “corrective
action” letter. Yet it was not until over a year later, on the very day of an unsuccessful
mediation, that Bowman actually amended the letter. While the Defendants insist that
the timing is only related to Faulkner’s retirement, the facts give rise to more than one
reasonable inference about the Defendants’ intent and motive in issuing the
amendment.
Moreover, as Faulkner notes, a defendant may not moot an injunctive relief claim
simply by voluntarily ceasing the challenged conduct. He cites Friends of the Earth v.
Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000), where the Supreme
Court noted: “A case might become moot if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.” Only if
the University could establish with absolute clarity that Faulkner would never again be
subjected to the broad prohibition on his religious speech would the amendment to the
corrective action arguably moot his claim. Bowman’s July 23, 2015 letter contains no
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such assurances. And it suggests that additional complaints would be investigated and
acted upon if Faulkner is not sufficiently “mindful of how his [biblical references] can be
interpreted by his colleagues...”. The Court rejects Defendants’ arguments on standing
and mootness.
Faulkner’s First Amendment Claim: Defendants argue that Faulkner’s First
Amendment claim, whether styled as an infringement of his free exercise of religion or
as an impairment of his free speech rights, must be dismissed. They contend that
Faulkner was not barred from performing any personal religious practice, that the
Leadership presentation was the only occasion on which he presented his “Servant
Leadership” lecture, and that this entire lawsuit springs from a single incident that has
not been repeated. Defendants note that while the Sixth Circuit does not appear to
have applied Garcetti in the context of a free exercise claim, they urge the Court to
apply its reasoning to Faulkner’s claim. They argue that the “corrective action” letter
was appropriate and did not infringe any religious practice in which Faulkner wished to
engage.
When the government acts as an employer, its powers to regulate speech are
clearly broader than its powers to regulate public speech generally. While the
University’s power to regulate speech of its employees is broad under Garcetti, it is not
without limits. Faulkner’s religious beliefs include daily reading of the Bible, prayers
while at work, and references to biblical verse or proverbs during his everyday
interactions with people, including his workplace discussions. Dr. Vincent, Faulkner’s
supervisor, testified that prior to the incident giving rise to this case, he was never
uncomfortable with Faulkner’s speech or religious expressions, and that he had never
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heard anyone else complain about Faulkner. (Vincent Dep. at 23, 42-43) According to
Bowman, one anonymous employee felt “uncomfortable” about Faulkner’s Servant
Leadership remarks, and so the University barred him from using biblical quotations in
any “work related interactions.” The “corrective action” effectively prohibited Faulkner
from engaging in his normal religious practice of using biblical references or proverbs in
his working environment.
Defendants attempt to portray Faulkner’s complaints about this broad prohibition
on Christian-based biblical references as overblown, and that his subjective impressions
of what Bowman’s letter said are insufficient to withstand summary judgment. The
Court disagrees. It is difficult to conceive of a broader prohibition than one limiting
speech in “all workplace interactions.” Accepting Faulkner’s own description of his
Christian faith and religious practices (as the Court must do on summary judgment), this
broad ban infringed on his ability to exercise his faith as he had always done, without
problem or objection from anyone in any “workplace interaction.” The University has not
argued that Faulkner’s speech was interpreted by anyone as an official position of the
University. Indeed, Bowman’s “corrective action” letter specifically acknowledged that
Faulkner made it clear that his comments and his presentation to the Leadership
Academy were his own personal views, and not those of the University.
Applying the balancing test of Pickering v. Board of Educ., 391 U.S. 563 (1968)
to this claim, the University must show that its interest in this broad prohibition on
Faulkner’s speech outweighed any interest that Faulkner had in using biblical
references and examples in his everyday workplace speech. Bowman testified that
Faulkner made an employee “uncomfortable.” There is no suggestion that anyone
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accused Faulkner of harassment on the basis of religious belief or preference, conduct
that could well merit discipline and a prohibition on such conduct. Bowman explained
that part of her justification for imposing the prohibition on speech was due to Faulkner’s
role as a manager, and because “he should know what affects his employees and what
doesn’t.” (Bowman Dep. at 50) But there was no allegation that Faulkner was using his
supervisory power to harass a subordinate on the basis of his own religious beliefs.
The University’s asserted interest in avoiding an employee’s discomfort at hearing
biblical references (or in another context, hearing references to Buddhist teachings or
the Quran, or the principles of atheism) simply and plainly do not outweigh Faulkner’s
interests in free speech and in the free exercise of his religious principles. This is
especially true in view of Faulkner’s lengthy tenure at UC, and the utter lack of evidence
that anyone on any previous occasion felt “uncomfortable” enough about Faulkner’s
speech to complain about it.
The Court concludes that the Defendants are not entitled to summary judgment
on Faulkner’s First Amendment claim.
Challenges to the University’s policies: The University’s Discriminatory
Harassment Policy (No. 11.02) is the operative policy banning harassment in the
University community. The policy defines “discriminatory harassment” as:
... conduct that has the purpose or foreseeable effect of unreasonably
interfering with an identifiable individual’s work or academic performance
or of creating an intimidating, hostile, or offensive work or learning
environment for that individual. It is not necessary that the consequences
actually occur, but the test of whether they are foreseeable is to be
determined objectively by reference to all the circumstances of the
particular case.
(Bowman Dep. Ex. D) Defendants contend that this policy is not unconstitutional based
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on vagueness or overbreadth. The University has a duty under law to regulate conduct
in order to protect members of its community against purposeful harassment.
Defendants reject Faulkner’s reliance on Dambrot v. Central Mich. Univ., 55 F.3d 1177
(6th Cir. 1995), where the Sixth Circuit found a university’s harassment policy
unconstitutional. That policy, unlike UC’s, purported to prohibit any intentional or
unintentional behavior that subjected someone else to intimidation or a hostile and
offensive environment. The court of appeals held that the policy was both overinclusive
and failed to clearly and objectively define the contours of the prohibited behavior.
Defendants argue that the UC policy regulates purposeful conduct, and conduct that
has an objectively foreseeable effect.
Defendants also cite the policy’s introduction which expressly recognizes that the
University “cannot legally censor speech or punish those who exercise First Amendment
rights.” (Bowman Dep. Ex. D, Introduction ¶2) They further note that the operative
language of its harassment policy mirrors the definition contained in federal regulations
barring workplace harassment. See 29 C.F.R. 1604.11(a), defining harassing conduct
to include “... conduct [that] has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile, or offensive working
environment.”
Faulkner responds that the policy does not clearly define prohibited conduct, nor
provide clear standards to guide its enforcement. He argues that no reasonable person
in his position could have known that including biblical references in a leadership
presentation would purposefully or foreseeably interfere with an employee’s
performance, much less create an intimidating, hostile, or offensive environment. He
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also contends the policy is overbroad because it reaches a substantial amount of
protected speech.
Faulkner cites DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) which struck
down a university’s sexual harassment policy as overbroad and vague. The policy in
question in DeJohn stated that “... all forms of sexual harassment are prohibited,
including . . . expressive, visual, or physical conduct of a sexual or gender-motivated
nature, when . . . (c) such conduct has the purpose or effect of unreasonably interfering
with an individual's work, educational performance, or status; or (d) such conduct has
the purpose or effect of creating an intimidating, hostile, or offensive environment.” The
plaintiff was a member of the armed forces, and wished to write his master’s thesis on
issues regarding women in combat and in the military. He alleged that the policy chilled
his speech in classroom discussions on these subjects, and subjected him to the real
fear that he would be sanctioned for his views. The Third Circuit held the policy was
facially overbroad, in that it reached a substantial amount of speech that is protected by
the First Amendment. Nor was the policy reasonably subject to a limiting construction
that could save it from plaintiff’s constitutional challenge.
The Third Circuit considered a challenge to another university’s anti-harassment
policy in McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010). The
policy banned conduct that causes “emotional distress” which included “... conduct
which results in physical manifestations, significant restraints on normal behavior or
conduct and/or which compels the victim to seek assistance in dealing with the
distress.” The court of appeals noted that “conduct” is a broad term that includes
speech protected by the First Amendment, as well as non-expressive harassing conduct
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that lies entirely outside the protections of the First Amendment. The term “emotional
distress” was entirely subjective, and purported to prohibit speech without any
consideration of whether the speech was objectively problematic. Id. at 250. The court
listed a number of hypothetical scenarios that could be implicated by the policy:
... a religious student organization inviting an atheist to attend a group
prayer meeting on campus could prompt him to seek assistance in dealing
with the distress of being invited to the event; minority students may feel
emotional distress when other students protest against affirmative action;
a pro-life student may feel emotional distress when a pro-choice student
distributes Planned Parenthood pamphlets on campus; even simple
name-calling could be punished. The reason all these scenarios are
plausible applications of [the policy] is that the [policy] is not based on the
speech at all. It is based on a listener's reaction to the speech. The
Supreme Court has held time and again, both within and outside of the
school context, that the mere fact that someone might take offense at the
content of speech is not sufficient justification for prohibiting it.
Id. at 251 (internal citations and quotations omitted).
Here, in similar fashion, Faulkner was accused of violating the discriminatory
harassment policy because, as Bowman conceded, an employee was “uncomfortable”
about his presentation. The application of the policy is thus premised on the listener’s
reaction to speech, not upon any objective standards either defined in the policy or
articulated by Bowman or by the Defendants. While the policy’s introduction recognizes
First Amendment protection for speech, that protection is apparently trumped when a
listener feels uncomfortable (or perhaps experiences “distress”) during a campus
presentation.
In contrast to these cases, a colleague within this district recently rejected a
plaintiff’s challenge to the sexual harassment policy of Ohio University. In Marshall v.
Ohio Univ., 2015 U.S. Dist. LEXIS 31272 (S.D. Ohio, March 13, 2015), the plaintiff was

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suspended from the university after an investigation concluded that he had sexually
harassed a fellow student by creating a hostile academic environment for her. The
plaintiff repeatedly sent her text messages imploring her to enter into a relationship,
messages she had repeatedly rebuffed. He continued to send texts after she asked him
to stop. He filed suit seeking reinstatement, and alleged that the harassment policy
violated his First Amendment rights. The district court denied his request for a
preliminary injunction, finding that he had not shown a substantial likelihood of success
on the merits of his First Amendment challenge to the policy.
The policy defined sexual harassment to include “... sexual advances, requests
for sexual favors, and other physical or verbal conduct of a sexual nature that is
unwelcome and is sufficiently severe or pervasive from both a subjective (the
complainant's) and an objective (reasonable person's) viewpoint.” Harassment by
creating a hostile environment was defined as
... conduct [that] has the purpose or effect of unreasonably interfering with
a person's work or academic performance or creating an intimidating,
hostile, or offensive environment for working, learning, or living on campus.
The determination of whether an environment is "hostile" is often
contextual and must be based on the circumstances. These
circumstances could include:
• The frequency of the conduct;
• The nature and severity of the conduct;
• Relationship between alleged harasser and subject of the alleged harassment;
• Location and context in which the alleged conduct occurs;
• Whether the conduct was physically threatening;
• Whether the conduct was humiliating;
• Whether the conduct arose in the context of other discriminatory conduct.
A hostile environment could be created by repeated, unwanted, sexually
oriented stares (maintaining eye contact is, of course, acceptable).

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Id. at **3-5. The university’s policies also provided procedural safeguards for anyone
accused of sexual harassment, including a neutral fact-finder and the right to present
evidence at a hearing. The district court rejected plaintiff’s overbreadth and vagueness
challenges to the policy, finding that the policy was narrowly tailored and carefully
drafted to balance the university’s need to prohibit harassment with an individual’s free
speech rights. The policy provided also specific guidance on how the determination of a
“hostile” environment would be made, and required both an objective and subjective
assessment of the conduct at issue.
The UC policy at issue does not share these qualities. In addition, despite the
policy’s express assurance that any complaint of discriminatory harassment will be
subjected to a “thorough investigation,” a fact finder could conclude that Bowman’s
investigation was anything but “thorough.” The “corrective action” letter was issued to
Faulkner based on one anonymous employee’s complaint of discomfort, and despite
Faulkner’s denial of statements that Bowman later attributed to him. Faulkner was
found in violation of a policy that provided him with no guidance on what speech the
University could conclude fell within its definition of harassment. The Court concludes
that Defendants are not entitled to entry of judgment that the discriminatory harassment
policy which Faulkner is accused of violating passes constitutional muster under the
doctrines of vagueness and overbreadth.
CONCLUSION
For all of the foregoing reasons, Defendants’ motion for summary judgment (Doc.
35) is denied.
SO ORDERED.
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DATED: March 23, 2016

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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