Stiner v. University of Delaware

Page 106

243 F.Supp.2d 106

Frederic M. STINER, Jr., Plaintiff, v. The UNIVERSITY OF DELAWARE, Kent St. Pierre, the American Association of University Professors, Gerald M. Turkel, and David L. Colton, Defendants.

No. CIV.A.02-312-SLR.

United States District Court, D. Delaware.

January 16, 2003.

COPYRIGHT MATERIAL OMITTED

Laurence V. Cronin, Esquire of Smith, Katzenstein & Furlow, LLP, Wilmington, DE, for Plaintiff. Of Counsel: Mark B. Frost, Esquire of Frost & Zeff, Philadelphia, PA.

Rebecca L. Butcher, Esquire of Klett, Rooney, Lieber & Schorling, Wilmington, DE, for Defendants The University of Delaware and Kent St. Pierre. Of Counsel: James N. Boudreau, Esquire and David A. Hitchens, Esquire of Morgan, Lewis & Bockius, LLP, Philadelphia, PA.

MEMORANDUM OPINION

SUE L. ROBINSON, Chief Judge.

I. INTRODUCTION

On April 29, 2002, plaintiff Frederic M. Stiner, Jr. filed this action against defendants the University of Delaware ("the University"), Kent St. Pierre ("St.Pierre"), The American Association of University Professors ("AAUP"), Gerald M. Turkel ("Turkel") and David L. Colton ("Colton"), alleging (1) violation of 42 U.S.C. § 1983 and the First Amendment by the University and St. Pierre; (2) retaliation by the University; (3) violations of due process under the Fourteenth Amendment by the University and St. Pierre; (4) breach of fiduciary relations by AAUP, Turkel and Colton; (5) self-dealing by AAUP, Turkel and Colton; (6) breach of contract by all defendants; and (7) defamation by the University and St. Pierre. (D.I.I) This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Presently before the court is defendant University and defendant St. Pierre's (collectively "University Defendants") motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and plaintiffs motion for leave to file a sur reply brief. (D.I.5, 13)

II. BACKGROUND

The facts recited below, to the extent they are relevant to defendants' motion to dismiss, are set forth in the light most favorable to plaintiff. Plaintiff began his career at the University of Delaware in 1982 as an associate professor of accounting. Plaintiff ultimately became a tenured professor and a member of the AAUP, and was covered by the provisions of the AAUP's collective bargaining agreement ("CBA") with the University. Prior to 1997, the University rated plaintiffs record in teaching, research, and service at or above the applicable criteria.

In January 1997, Purnell Hall, the building in which the accounting department's offices were located, underwent renovation. As a result of the renovation, faculty were reassigned offices. In order to distribute the newly redesigned offices among the faculty, defendant St. Pierre, then Chair of the Accounting Department, devised an "office auction." Under this auction, faculty members would bid money for the office of their choice, with the office going to the highest bidder. The money generated from the auction was to go to the Department's discretionary fund, which St. Pierre controlled in his capacity as Department Chair.

In February and March of 1997, plaintiff complained to St. Pierre that he felt it was improper to conduct an office auction in which the proceeds would go to the discretionary fund controlled by St. Pierre. When St. Pierre ignored plaintiffs complaints, plaintiff brought the issue to the attention of Dr. Leon Campbell, the AAUP's Contract Maintenance Officer, and Maxine Colm, the University's Vice President for Administration. Dr. Campbell and Ms. Colm then met with College Dean Dana Johnson to discuss the auction. As a result of the meeting, the auction was cancelled and the offices were assigned in another fashion.

In June of 1997, St. Pierre evaluated plaintiffs performance for the 1996-1997 time period. Plaintiff was rated below criteria in teaching, at criteria in research, and above criteria in service. Upon receipt of the evaluation, plaintiff requested a meeting with St. Pierre to discuss the below criteria rating. St. Pierre ultimately agreed to meet with plaintiff, but persisted in keeping his original evaluation of his performance.

In September 1997, plaintiff forwarded a complaint regarding his evaluation to Dean Johnson appealing the decision. The appeal was not considered by the University. In April 1998, plaintiff received his evaluation for the 1997-1998 period. In this evaluation, St. Pierre rated plaintiff below criteria for teaching, at criteria for research, and at criteria for service. In response to the second below criteria evaluation, plaintiff filed a grievance with the AAUP claiming that St. Pierre failed to follow University Policy, treated plaintiff arbitrarily, and evaluated him under a criteria for which no other faculty was evaluated. As a result of the grievance, the AAUP reached a settlement with St. Pierre by which he agreed to provide the criteria used for evaluations.

At a November 1998 faculty meeting, plaintiff questioned St. Pierre about the evaluation criteria. In response, St. Pierre allegedly revealed to the faculty at the meeting that plaintiff received a below criteria rating for teaching and permitted discussion by the faculty of plaintiffs teaching. As a result of St. Pierre allegedly disclosing this information at the faculty meeting, plaintiff filed a complaint with the Faculty Welfare and Privileges Committee ("FWPC").

In February 1999, the FWPC found St. Pierre's conduct actionable and required him to write a letter of apology to plaintiff. As a result of the FWPC complaint and his previous complaints, plaintiff alleges that St. Pierre began retaliating against him. Plaintiff states that he was removed as Chair of the Department of Promotion and Tenure by St. Pierre and relegated to teaching freshman level courses normally taught by much more junior faculty.

Plaintiff then received his evaluations for the 1998-1999 year. In this evaluation, St. Pierre rated plaintiffs teaching at criteria. However, for the 1999-2000 year, plaintiff again received a below criteria rating in teaching. In August 2000, the University submitted an Application for Reaffirmation by the Association to Advance Collegiate Schools of Business ("AACSB"). In the application, plaintiff was listed as academically qualified with a teaching load of three classes per semester. In February 2001, in response to AACSB inquiries concerning the report, plaintiffs listing was changed from academically qualified to academically unqualified. Plaintiff was unaware of the change at the time.

Finally, in April 2001, plaintiff received a below criteria in both teaching and research. In August 2001, plaintiff filed another grievance and once again requested that St. Pierre provide plaintiff with the criteria used to evaluate faculty. Defendants Colton and Turkel from the AAUP were assigned to handle the grievance. In October 2001, the Executive Council of the University upheld plaintiffs grievance. The AAUP settled the grievance which resulted in a change in the evaluation system for the accounting department. However, plaintiffs performance evaluation was never changed. On December 31, 2001, plaintiff retired from the University.

III. STANDARD OF REVIEW

In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all material allegations of the complaint and it must construe the complaint in favor of the plaintiff. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir.1998). "A complaint should be dismissed only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiffs favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. Claims may be dismissed pursuant to a Rule 12(b)(6) motion only if the plaintiff cannot demonstrate any set of facts that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The moving party has the burden of persuasion. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991).

IV. DISCUSSION

A. Plaintiffs § 1983 First Amendment Retaliation Claims

In counts I and II of his complaint, plaintiff alleges that University Defendants violated § 1983 when they retaliated against him for exercising his First Amendment rights.¹ Plaintiff contends that the retaliation was a result of his speaking out against St. Pierre's "office auction" to the administration.

A public employee's retaliation claim for engaging in protected speech must be evaluated under a three-step process. Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir.1996); Trotman v. Board of Trustees, 635 F.2d 216, 224 (3d Cir.1980). First, a plaintiff must establish that the speech in question was protected. See Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). For this purpose, the speech must involve a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If the speech is of public concern, a plaintiff must demonstrate that his interest as a citizen in commenting on matters of public concern outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. See Pickering v. Bd. of Educ, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). These determinations are questions of law for the court. See Azzaro v. County of Allegheny, 110 F.3d 968, 975 (3d Cir.1997).

If the court finds that the speech is protected, a plaintiff must show that the speech was a substantial or motivating factor in the alleged retaliatory action taken by the employer. See ML Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Finally, the public employer can rebut the claim by demonstrating "by a preponderance of the evidence that it would have reached the same decision even...