Wilkerson v. Univ. of N. Tex.

223 F.Supp.3d 592

Dale A. WILKERSON

v.UNIVERSITY OF NORTH TEXAS, by and Through Its Board of Regents; Neal Smatresk, President; Finley Graves, Interim Provost and Vice President for Academic Affairs; Warren Burggren, Former Provost and Vice President for Academic Affairs; Arthur J. Goven, Former Dean, College of Arts & Sciences; and Patricia Glazebrook, Former Chair, Department of Philosophy and Religion Studies.

Civil Action No. 4:15–CV–00540

United States District Court, E.D. Texas, Sherman Division.

Signed November 30, 2016

Adam Tabor Whitten, Michael J. Whitten & Associates, Michael Joseph Whitten, The Whitten Law Firm, Denton, TX, Plaintiff.

Eric A. Hudson, Marc Rietvelt, Austin, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendants' Motion to Dismiss Plaintiff's First Amended Original Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. # 42). After reviewing the relevant pleadings and motion, the Court finds the motion should be granted in part and denied in part.

BACKGROUND

This case arises from the non-renewal of an employment contract for a non-tenured professor. Plaintiff, Dale Wilkerson, was originally hired by the University of North Texas ("UNT") in 2003 under a one-year term contract in the Department of Religion and Philosophy ("the Department") in the College of Arts and Sciences. At the end of his first term, his contract was renewed, he was promoted, and his duties were expanded. In 2011, UNT offered Plaintiff a term contract for five years for the role of Principal Lecturer. Principal Lecturer is the highest level attainable at UNT for any teacher who is not tenured or on a tenure track appointment. It is customary at UNT that non-tenured teachers who have multi-year appointments can rely on continued employment until the expiration of the full term of their contract as long as their job performance meets or exceeds expectations. It is also customary for UNT to inform the professor in writing no later than April of the academic year if the professor's contract will not be renewed. The only known causes for discharge of teachers with long years of service were because of elimination or reduction of a particular program, a general reduction in force, or the commission of a serious violation of UNT's policies and procedures.

Plaintiff's complaint centers around an allegedly wrongful discharge by UNT that was based at least in part on a relationship that UNT deemed to be inappropriate. On May 31, 2013, Plaintiff was approached at a local bar by a 26–year–old female, CB. Plaintiff had briefly been introduced to CB in March 2013, but had not seen her since. At the time, CB was not, and had never been, a student or employee at UNT. On June 2, 2013, after a brief flirtatious association, Plaintiff and CB shared two consensual kisses. On June 30, 2013, CB invited herself to attend a concert in Memphis, Tennessee, that Plaintiff was attending with a platonic female friend over the Fourth of July holiday. CB, Plaintiff, and the female friend agreed to share a hotel room to save expenses. No sort of romantic activity occurred.

Sometime before late August 2013, the Director of Graduate Studies ("DGS"), Dr. Gene Hargrove ("Hargrove"), evaluated CB and recommended her for admission to UNT's graduate program for the fall semester of 2013. Hargrove also hired CB to work for a non-profit housed on campus. Plaintiff played no role in CB's admission to UNT or employment by the non-profit. Plaintiff was never CB's teacher and never exercised any authority over her.

Dr. Patricia Glazebrook ("Glazebrook") was Department Chair of Philosophy and Religion Studies at all times relevant to this lawsuit. At some point when Glazebrook was Chair, UNT took a faculty survey to evaluate whether Glazebrook should be retained as Chair. Plaintiff abstained from the survey and Glazebrook received only one favorable recommendation. Although the survey was supposed to be confidential, it was well known that Glazebrook had only one supporter. Plaintiff was one of the only faculty members who got along reasonably well with Glazebrook during her time as Chair. Glazebrook appointed Plaintiff to DGS in August 2013. Following the survey, Glazebrook was not retained as Chair and left UNT to take a job at another university.

On or about February 7, 2014, CB filed a complaint alleging sexual harassment by Plaintiff. On February 24, 2014, the Department of Equity and Diversity ("OEO") issued a formal complaint on the matter. On March 26, 2014, Glazebrook, as Department Chair, conducted Plaintiff's evaluation for 2011–2013.¹ Among other statements, she noted that Plaintiff ranked second out of thirteen faculty members. In early April 2014, Plaintiff asked Glazebrook why he had not received a letter renewing his teaching appointment for the 2014/2015 academic year. Glazebrook told Plaintiff that she was withholding the letter pending the outcome of a complaint to the OEO. On May 12, 2014, the OEO found that Plaintiff was "not in violation" of UNT's consensual relationship policy and there was "insufficient evidence" to establish a violation of UNT's sexual harassment policy. CB did not appeal the OEO's finding. On July 3, 2014, Plaintiff received a letter from Glazebrook notifying him of UNT's decision not to renew his contract.

Plaintiff appealed his discharge to the College of Arts and Sciences Grievance Committee ("CASGC"). The CASGC is the fact-finding body of UNT's grievance process. CASGC allows a defendant to have representation, introduce and object to evidence, and examine witnesses. Plaintiff availed himself of these procedures and the CASGC found (1) that Glazebrook violated the Philosophy Department By–Laws; (2) that she had been uncooperative and untruthful during the investigation; (3) that due process and equal protection standards were clearly violated; and (4) that there was no factual basis for firing Plaintiff. The report dated July 25, 2014, unanimously recommended that the Dean reverse Glazebrook's decision.

Central to the CASGC findings were comparisons to a 2011 non-renewal of another non-tenured lecturer where Glazebrook did follow the Department By–Laws and procedures. Specifically, in the 2011 termination, Glazebrook consulted with the Department Personal Affairs Committee as well as the Department Executive Committee. She did neither in Plaintiff's case.

According to procedure, the CASGC report was forwarded to the Dean of Arts and Sciences, Dr. Arthur Goven ("Goven"). During this stage, the Dean is supposed to review the record created by the CASGC and either follow the recommendation or reject it. The Dean is not to make any additional fact findings. In this case, Goven did not follow this procedure when he received communications from Glazebrook. Glazebrook falsely represented to Goven that Plaintiff was in the position of DGS in the spring of 2013 and that Plaintiff was DGS with authority over CB when the relationship with CB occurred. After learning that Glazebrook gave additional information to Goven, Plaintiff approached Goven and pleaded for an opportunity to produce evidence to refute Glazebrook's timeline of events. Goven refused, telling Plaintiff that he agreed with Glazebrook's finding that Plaintiff had used "poor judgment." Neither Goven nor Glazebrook ever specified what "poor judgment" meant.

Plaintiff appealed to the Provost and Vice President for Academic Affairs, Dr. Warren Burggren ("Burggren"). Burggren refused to rule. Instead, Burggren referred the matter to the Ad Hoc UNT Faculty Grievance Committee ("Ad Hoc Committee"). The Ad Hoc Committee was created by the Executive Committee of the Faculty Senate during the 2014/2015 academic year. When Burggren referred the matter, the Ad Hoc Committee had not yet formulated its own by-laws and purported to act under the by-laws of two separate existing committees. The Ad Hoc Committee found that Plaintiff's due process rights had been violated and that Plaintiff had been fired for cause over the CB matter. The Ad Hoc Committee did not opine on whether the cause was a proper cause. Further, it did not make a recommendation whether Plaintiff should be fired or reinstated.

By the time the Ad Hoc Committee finished its inquiry, Burggren left the Provost's office and was replaced by Dr. Finley Graves ("Graves"). After the Ad Hoc Committee refused to give a recommendation, Graves upheld the firing without disclosing his reasoning. Graves presently serves as Interim Provost.

On August 10, 2015, Plaintiff filed his original complaint asserting claims against UNT, Neal Smatresk ("Smatresk"), Finley Graves, Warren Burggren, Arthur Goven, and Patricia Glazebrook (collectively "Defendants") (Dkt. # 1). On April 15, 2016, Plaintiff filed his First Amended Original Complaint asserting claims for violations of due process, equal protection, and retaliation under 42 U.S.C. § 1983, Title IX retaliation, breach of contract, and tortious interference with contract (Dkt. # 36).

On May 26, 2016, Defendants filed their Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. # 42). On June 9, 2016, Plaintiff filed a response (Dkt. # 43). On June 24, 2016, Defendant filed a reply (Dkt. # 46). On September 12, 2016, Plaintiff filed a supplemental brief in response to the Title IX claim (Dkt. # 63). On September 23, 2016, Defendants filed a response to Plaintiff's supplemental brief (Dkt. # 75).

LEGAL STANDARD

12(b)(1) Motion to Dismiss

Defendants move for dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure. The Court has subject matter jurisdiction over those cases arising under federal law. U.S. Const. Art. III, § 2, cl. 1 ; 28 U.S.C. § 1331. A case arises under federal law if the complaint establishes that federal law creates the cause of action or the plaintiff's right to relief necessarily depends on the resolution of a substantial question of federal law.

Empire...