Banik v. Tamez

BIMAL K. BANIK, Plaintiff, v. ANGEL TAMEZ, et al, Defendants.

CIVIL ACTION NO. 7:16-CV-00462

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

June 9, 2017

OPINION

The Court now considers Terence Thompson ("Thompson"), Esmeralda Guerra ("Guerra"), Martha Cantu ("Cantu"), S.J. Sethi ("Sethi"), Robert Nelsen ("Nelsen"), Havidán Rodríguez ("Rodríguez"), Guy Bailey ("Bailey"), Marie Mora ("Mora"), Stephen Crown ("Crown"), Catherine Faver ("Faver"), Paul L. Foster ("Foster"), William Eugene Powell ("Powell"), R. Steven Hicks ("Hicks"), Ernest Aliseda ("Aliseda"), Alex Cranberg ("Cranberg"), Wallace Hall, Jr., ("Hall"), Jeffrey Hildebrand ("Hildebrand"), Brenda Pejovich ("Pejovich"), Robert Stillwell ("Stillwell"), The University of Texas-Pan American ("UTPA"), The University of Texas Rio Grande Valley ("UTRGV"), and The University of Texas System's ("UT System") (collectively "Defendants") motion to dismiss on the pleadings.¹ The Court also considers Bimal K. Banik's ("Plaintiff") response,² as well as Plaintiff's embedded motion for leave to amend any improperly pled claims.³ After duly considering the record and authorities, the Court GRANTS in part and DENIES in part Defendants' dismissal motion and Plaintiff's embedded motion for leave to amend as follows.

I. INTRODUCTION

A. Factual & Procedural Background

As a preliminary matter, the Court must look beyond the pleadings to make sense of this case, which involves numerous defendants and scores of claims. However, insofar as the Court looks beyond the pleadings, it does not assume these facts to be true for purposes of its pleadings-based dismissal analysis. The Court relies solely on 12(b)(6)-pertinent information for that portion of the opinion.

Plaintiff was a tenured chemistry professor at UTPA.⁴ One of his chemistry students, Amanda Ybarra ("Ybarra"), filed a complaint with UTPA on February 1, 2013, alleging that Plaintiff had made inappropriate comments to her amounting to misconduct.⁵ Plaintiff allegedly met with one of his other chemistry students—Angel Tamez ("Tamez")—on March 22, 2013, and hatched a scheme to slander Ybarra by getting her classmates to call her a stripper and pornography star.⁶ Tamez allegedly recorded the aforementioned scheme on his cellular phone.⁷ Plaintiff alleges that Tamez's recording also included conversations between Plaintiff and someone other than Tamez.⁸

Tamez then met with Guerra and Cantu to discuss what had happened.⁹ Guerra was the Equal Employment Opportunity ("EEO") officer at UTPA,¹⁰ and she began the investigation into Ybarra's complaint against Banik.¹¹ Cantu was the UTPA Vice President of Student Affairs.¹² It appears that during the initial meeting, Tamez described his conversation with Plaintiff, but did not reveal the recording.¹³ However, Tamez later disclosed the recording to both Guerra and Cantu.¹⁴

Thompson—UTPA's Chief Legal Officer and Title IX Administrator during this time—¹⁵ was Guerra's supervisor,¹⁶ and he took over Guerra's investigation into Plaintiff in late March of 2013.¹⁷ During his investigation, Thompson spoke to Tamez, who again recounted his conversation with Plaintiff and disclosed the recording.¹⁸ At some point during the investigation, Thompson asked Sethi to transcribe the recording.¹⁹ Thompson appears to have issued an official investigation report on September 25, 2013, finding that Plaintiff had violated federal law and university policy.²⁰ This was one of a string of events that would lead to Plaintiff's eventual termination.

Thompson's investigation report was forwarded to Rodríguez, UTPA's Vice President of Academic Affairs.²¹ Rodríguez recommended termination to Nelson, then President of UTPA, who then recommended initiation of termination proceedings against Plaintiff.²² A three-member tribunal—comprised of faculty members Mora, Crown, and Faver²³—was convened from August 11-13, 2014.²⁴ This proceeding was adversarial and judicial in nature, involving the submission of evidence, the representation of counsel, and the ability to testify and cross- examine adverse witnesses.²⁵ Ultimately, the tribunal unanimously recommended termination based upon their findings.²⁶ The next step of the process was to have the UTPA President recommend termination to the UT Board of Regents ("Regents"). Nelsen did just this on September 15, 2014.²⁷ Though he had ceased being UTPA's President just thirteen days earlier, he allegedly was delegated the power to issue this recommendation to the Regents by Rodríguez—UTPA's President ad interim at that time.²⁸

The Regents (Defendants Foster, Powell, Hicks, Aliseda, Cranberg, Hall, Hildebrand, Pejovich, and Stillwell) then adopted Nelsen's recommendation, and on November 6, 2014, they voted to terminate Plaintiff.²⁹ Plaintiff was notified of his termination on November 14, 2014.³⁰ Independently, UTPA was abolished and UTRGV was created by legislative decree.³¹ However, Plaintiff's termination did not result from UTPA's abolition.³² Plaintiff applied for "Phase I" hiring at UTRGV before he learned of his termination,³³ but was denied on the grounds that he had been subject to disciplinary action within the past seven years.³⁴

Plaintiff sued Tamez in state court on November 15, 2013,³⁵ and eventually added twenty-three more Defendants over the course of ten amended petitions.³⁶ Defendants removed the case on August 8, 2016.³⁷ This Court dismissed Ybarra from the case on November 1, 2016,³⁸ and all other remaining Defendants except Tamez filed the instant motion to dismiss on March 7, 2017.³⁹ The Court granted Plaintiff an extension of time to respond, which he did on April 11, 2017, embedding a motion for leave to amend any pleading deficiencies in his complaint.⁴⁰ The instant motions are thus ripe for review.

B. Housekeeping Matters

Before laying out the legal standard and launching into the legal analysis of the instant motions, there are a few housekeeping items that must be attended to. First, the Court observes that Defendants have attached two documents to its dismissal motion that are not otherwise found in the pleadings: Regent's Rules 31007 and 31008.⁴¹ Generally, a court is not allowed to look beyond the pleadings in order to resolve Federal Rule of Civil Procedure ("Rule") 12(b)(6) or 12(c) motions.⁴² The "pleadings" include the complaint and answer.⁴³ Rule 12(d) requires courts to "convert" Rule 12(b)(6) and 12(c) motions into Rule 56 motions for summary judgment if "matters outside the pleadings are [1] presented to and [2] not excluded by the court . . . ."⁴⁴ However, a court may take judicial notice of public documents and consider them in its 12(b)(6) or 12(c) analysis without converting the motion into a summary judgment motion.⁴⁵

Here, Defendants' attachments, Regent's Rules 31007 and 31008, are matters of public record, readily available online,⁴⁶ whose existence and content cannot reasonably be disputed. Thus, the Court takes judicial notice of these documents, and proceeds to analyze Defendants' dismissal motion without converting it into a Rule 56 motion for summary judgment.

Second, Plaintiff incorporates by reference into his tenth amended complaint various documents attached to previous complaints.⁴⁷ He does not specify which complaints. The Court will not go swimming through the two-thousand page state court record to find them, and thus excludes them in the present motion. The Court is cognizant that substantial discovery has already taken place in this case, and that the parties are familiar with many facts outside the pleadings. However, it would be both inappropriate and procedurally awkward to consider numerous facts and documents outside the pleadings for purposes of the present motion; it is not a summary judgment motion.

Third, Plaintiff has filed two independent motions for leave to amend. The first motion for leave is embedded within his response to the instant dismissal motion.⁴⁸ Entitled "Banik's motion for leave to amend pleadings," the embedded motion states, in part, "[i]f the Court is inclined to dismiss any portion of [Plaintiff's] complaint for failure to state a claim, [Plaintiff] requests leave of court to amend his complaint to cure the alleged pleading deficiencies identified by Defendants."⁴⁹ Plaintiff's second motion for leave to amend was filed two weeks later, and attached a proposed amended complaint.⁵⁰ Because these two motions for leave are distinct, the Court will address them sequentially and separately, though the Court will also take a peek into the proposed amended complaint attached to the second motion for leave to assess futility of amendment of certain claims. In the present order, the Court only addresses the first, embedded motion for leave.

Administratively speaking, then, the Court first analyzes the sufficiency of Plaintiff's factual allegations with regard to each of his claims against each Defendant. Whenever the Court finds any particular claim to be insufficiently pled, the Court will then determine whether leave to amend would be appropriate. However, where certain claims are clearly futile for reasons explained in the sufficiency-of-the-pleadings analysis, the Court will not conduct a full motion for leave analysis.

II. LEGAL STANDARDS

A. Rules 12(b)(6) and 12(c)—Dismissal on the Pleadings

Defendants move for dismissal under Rule 12(b)(6) and Rule 12(c).⁵¹ It ultimately does not matter which is used because the standards governing both are identical.⁵² To survive a Rule 12(b)(6) motion, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face."⁵³ This does not require detailed factual allegations, but it does require "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action."⁵⁴ Courts regard all such well-pleaded facts as true and view them in the light most favorable to the plaintiff.⁵⁵ Considered in that manner, factual allegations must raise a right to relief above the...