Stamps v. The Univ. of Tex. at Austin

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DR. JACK W. STAMPS, Plaintiff v. THE UNIVERSITY OF TEXAS AT AUSTIN; JAY HARTZELL, in his individual and official capacity; DOREEN LORENZO, BRUCE PENNYCOOK, and DOUG DEMPSTER, in their individual capacities; and MICHAEL BAKER, in his official capacity, Defendants

No. 1:20-cv-01204-LY-SH

United States District Court, W.D. Texas, Austin Division

February 22, 2022

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint, filed July 28, 2021 (Dkt. 32); Plaintiff's Response, filed August 11, 2021 (Dkt. 34); and Defendants' Reply, filed August 18, 2021 (Dkt. 36). On September 20, 2021, the District Court referred all pending and future motions in this case to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 41.

I. Background

In the fall of 2017, The University of Texas at Austin (“UT”) hired Plaintiff Jack W. Stamps as a lecturer in the College of Fine Arts (“COFA”). Plaintiff's Fourth Am. Compl. (Dkt. 22) ¶ 15. Plaintiff describes himself as “a distinguished professor, practitioner and author in the area of musical arts.” Id. ¶ 10. In March 2019, Plaintiff was promoted to Assistant Professor of Practice in the COFA's new Department of Arts and Entertainment Technology (“DAET”) and “was to hold his position pursuant to contract through August 31, 2020 but he was informed in May of 2019 that his contract of employment was not being renewed.” Id. ¶¶ 15 18.

Plaintiff alleges that “[d]uring his tenure at COFA Plaintiff was witness to sexually inappropriate conduct” by Bruce Pennycook, Chair of the DAET and Plaintiff's direct supervisor. Id. ¶ 20. Specifically, Plaintiff alleges that Pennycook made “sexual remarks about physical features of female students and staff, ” and asked Plaintiff about his sexual activities and his relationship with his “significant other, ” who also was a DAET faculty member and subordinate of Pennycook. Id. Plaintiff contends that Pennycook's comments were “deeply offensive” and “created a hostile work environment for Plaintiff.” Id. Plaintiff alleges that he told Pennycook that he should “cease and desist” such offensive comments, but “Pennycook's behavior continued.” Id. Plaintiff further alleges that after he told Pennycook to stop making offensive comments, Pennycook “developed a hostile attitude towards Plaintiff.” Id.

On March 12, 2019, Plaintiff met with Pennycook and COFA Dean Douglas Dempster regarding his potential promotion to Associate Professor of Practice. Plaintiff alleges that, before the meeting, he was concerned that “Pennycook may have maligned Plaintiff's performance and attitude and that Plaintiff's expression of opposition to Pennycook's actions may have been conveyed to Dempster.” Id. ¶ 22. Plaintiff contends that his concerns were realized based on Pennycook and Dempster's actions during the meeting. For example, Plaintiff alleges that he asked to speak to Dempster privately so that he could express his concerns about Pennycook's behavior, but “Dempster cut Plaintiff off and told Plaintiff that he would have no conversations with Plaintiff to which Pennycook was not present thus denying him the opportunity to report the actions of Pennycook which were violations of Title VII.” Id.

On April 8, 2019, Plaintiff filed a formal complaint with UT's Division of Diversity and Community Engagement Office of Inclusion and Equity (“OIE”) concerning Pennycook's alleged inappropriate conduct (the “OIE Complaint”). Id. ¶ 24. The OIE began a formal investigation into the OIE Complaint on May 16, 2019. Plaintiff alleges that Pennycook, Dempster, and COFA Assistant Dean Doreen Lorenzo then became aware of the OIE Complaint. Id. ¶ 27. Approximately two weeks later, on May 29, 2019, Plaintiff alleges that Lorenzo informed Plaintiff that his teaching contract would not be renewed because “[D]AET is moving in a new direction.” Id. ¶ 29.

Plaintiff alleges that he then filed a grievance (the “Grievance”) with the Faculty Grievance Committee, alleging that his contract had not been renewed in retaliation for having filed the complaint against Pennycook. Plaintiff alleges that the Faculty Grievance Committee Hearing Panel (the “Grievance Panel”) issued a finding that “Plaintiff's claims of retaliation were substantiated, ” and that “Plaintiff's contract should be renewed.” Id. ¶ 34. Nonetheless, Plaintiff alleges, UT, by and through UT President Jay Hartzell, “with full knowledge of the Plaintiff's complaints against Pennycook, rejected the findings of the Grievance Panel and upheld COFA's decision to non-renew Plaintiff's contract thereby terminating him.” Id. ¶ 38.

Plaintiff alleges that he then filed a second complaint with the OIE for retaliatory termination. Plaintiff contends that as to his first complaint, the OIE initially found “sufficient evidence” that Pennycook violated UT's Prohibition of Sex Discrimination, Sexual Harassment, Sexual Assault, Sexual Misconduct, Interpersonal Violence, and Stalking Policy, but that “the University's administration, by way of then Provost Maurie McInnis, overturned the findings.” Id. ¶ 41.

After his termination and the filing of his retaliation complaint, Plaintiff alleges that he was subjected to other forms of harassment, including “disparate treatment when compared to his fellow professors, violations of his academic freedoms through intimidation, removal from teaching assignments following his requested FMLA Leave and a refusal to retain him in his teaching role.” Id. ¶ 40. Plaintiff alleges that he notified Dempster on September 11, 2020 “of the enormous level of stress, anger and anxiety that the bullying and retaliation was causing him.” Id. ¶ 42. Dempster suggested Plaintiff take leave under the Family and Medical Leave Act (“FMLA”), and Plaintiff did so. Id. ¶ 42. Plaintiff alleges that he met with UT officials on December 12, 2019, to discuss returning to work, but he “never got to return to teach the classes he was scheduled to teach during the Spring semester and has since not been returned to his teaching position.” Id. ¶ 45.

UT argues that it made the decision to not renew Plaintiff's teaching contract because Plaintiff had performance issues, was combative with his colleagues and supervisors, and insisted on teaching courses that were not in sync with the overall direction of the DAET. UT also contends that it made the decision not to renew Plaintiff's teaching contract “before Stamps ever engaged in protected activity.” Dkt. 32 at 6. UT admits, however, that Plaintiff did not receive official notice of his non-renewal until May 29, 2020-after Plaintiff filed his OIE Complaint against Pennycook. Id. UT also contends that it reinstated Plaintiff to an administrative position on January 21, 2020, and that Plaintiff “happily accepted the assignment.” Id. at 12. UT also notes that Hartzell overturned the Grievance Panel's Advisory Opinion on July 21, 2020, after he concluded that Plaintiff's retaliation allegations were not substantiated. Id. at 13, 20.

On December 9, 2020, Plaintiff filed this lawsuit against UT; Hartzell, in his individual and official capacities; Michael Baker, Chair of the DAET, in his official capacity; and Pennycook, Lorenzo, and Dempster, all in their individual capacities (the “Individual Defendants”). In his Fourth Amended Complaint, Plaintiff alleges claims of: (1) Title VII retaliation against UT; (2) First Amendment retaliation under 42 U.S.C. § 1983 against Hartzell and the Individual Defendants; and (3) FMLA interference against Baker and Hartzell. Plaintiff seeks monetary damages, injunctive relief in the form of reinstatement, and attorneys' fees and costs.

Defendants now move to dismiss Plaintiff's Fourth Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

II. Legal Standards

A. Rule 12(b)(1) Lack of Subject Matter Jurisdiction

A party seeking to challenge the court's subject matter jurisdiction to hear a case may file a motion under Rule 12(b)(1). Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party claiming federal subject matter jurisdiction must show that the court indeed has that jurisdiction. Willoughby v. U.S. ex rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013). A federal court properly dismisses a case or claim for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the claims. Home Builders Ass'n of Miss., 143 F.3d at 1010. In deciding on a Rule 12(b)(1) motion, the court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010). The trial court is “free to weigh the evidence and satisfy itself” that subject-matter jurisdiction exists. MD Physicians & Assocs., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1992).

B. Rule 12(b)(6) Failure to State a Claim

Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court accepts “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation omitted). The Supreme Court has explained that a complaint must contain sufficient factual...