Bonnell v. Lorenzo

• Decision Date: 27 August 1999
• Docket Number: Civil Action No. 99-71155.
• Citation: 81 F.Supp.2d 777
• Parties: Professor John C. BONNELL and Nancy L. Bonnell, Plaintiffs, v. Albert LORENZO, Individually and in his Representative Capacity as President of Macomb Community College; William MacQueen, Individually and in his Representative Capacity as Vice President for Human Resources of Macomb Community College; Gus J. Demas, Individually and in his Representative Capacity as Dean of Arts and Sciences for Macomb Community College; and Mark Cousens, Individually and in his Representative Capacity as the Attorney for the Macomb Community College Faculty Organization, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

81 F.Supp.2d 777

Professor John C. BONNELL and Nancy L. Bonnell, Plaintiffs, v. Albert LORENZO, Individually and in his Representative Capacity as President of Macomb Community College; William MacQueen, Individually and in his Representative Capacity as Vice President for Human Resources of Macomb Community College; Gus J. Demas, Individually and in his Representative Capacity as Dean of Arts and Sciences for Macomb Community College; and Mark Cousens, Individually and in his Representative Capacity as the Attorney for the Macomb Community College Faculty Organization, Defendants.

Civil Action No. 99-71155.

United States District Court, E.D. Michigan, Southern Division.

August 27, 1999.

Juan A. Mateo and James C. Howarth, Detroit, MI, for Plaintiffs.

Thomas P. Brady, Detroit, MI, Timothy S. Ferrand, Pontiac, MI, for Defendants.

ORDER AND OPINION GRANTING PLAINTIFF'S RENEWED MOTION FOR PRELIMINARY INJUNCTION

BORMAN, District Judge.

Before the Court is Plaintiff John C. Bonnell's Emergency Renewed Motion for Preliminary Injunction. The Court heard oral argument on this motion on July 15 and 30, and August 3 and 19, 1999. Upon consideration of the motion, the submissions of the parties, and the applicable law, the Court GRANTS Plaintiff's motion and ORDERS his immediate reinstatement with pay as a Professor of English at Macomb Community College.

I. INTRODUCTION

Although the instant complaint is based in part on discipline received for using allegedly profane classroom language, the Court's resolution of the instant motion, as discussed infra, does not reach the issue of First Amendment protection of the specific profane speech used by Plaintiff in his classroom.

The issue presently before this Court is whether, given the instant fact scenario, Plaintiff, who was already been suspended from teaching for seven months, can be suspended for an additional four months based upon the Defendants' determination that he violated the confidentiality of a student complainant, and retaliated against that student who had filed a complaint against him based upon his use of profane language in the classroom. Specifically, the issue is whether Plaintiff's conduct in releasing the student's complaint, after removing the student's name and class, and attaching an eight page memorandum discussing the First Amendment in responding to the complaint, was protected by the First Amendment to the Constitution, or was instead a violation of confidentiality and an act of retaliation against the student.

This Court concludes that Plaintiff's conduct in releasing a redacted copy of the complaint, attached to his response entitled An Apology: Yes, Virginia, There is a Sanity Clause, was protected by the First Amendment and was not a breach of confidentiality or retaliation against the student complainant.

II. BACKGROUND

A. Underlying Factual Development

Plaintiff¹ Professor John C. Bonnell filed the instant action alleging, inter alia, that disciplinary action imposed against him violates his civil rights. The lawsuit names as defendants in their individual and representative capacities Albert Lorenzo, President of Macomb Community College (MCC); William MacQueen, Vice President for Human Resources of MCC; Gus J. Demas, Dean of Arts and Sciences for MCC; and Mark Cousens, the attorney for the faculty union, the Macomb Community College Faculty Organization (MCCFO).² Neither MCC nor MCCFO are named as defendants.

Bonnell has been a professor of English and literature at MCC since 1967. Bonnell asserts that throughout the decades he has employed "all of the English language" in his teaching style, including words which some may regard as offensive. Until the events giving rise to the instant action, Bonnell has never been disciplined for his use of classroom language.

The genesis of this matter arises from a complaint filed against Bonnell by a student of his in the fall 1998 semester. The student asserted that Bonnell's profane language in the classroom, while not directed at any student, amounted to sexual harassment. Defendants ultimately determined that while colorable, the complaint lacked merit as to the sexual harassment claim. However, MCC suspended Bonnell for three days in February 1999 due to his allegedly profane classroom language. Thereafter, Bonnell responded to the student's complaint by redacting her name and class and distributing it along with his response, An Apology: Yes, Virginia, There is a Sanity Clause. MCC reacted to Bonnell's response by suspending him for four months without pay, primarily for breach of confidentiality and for retaliation against the student complainant.

MCC had established a sexual harassment policy in September 1992 which also enveloped the use of non-germane, profane language in the classroom. The policy stated, inter alia, that

the [MCC] administration concluded that academic freedom does not protect acts of sexual harassment or the use of profane, vulgar, or obscene language which is unrelated to the course content and educational purpose.

(Sexual Harassment Memorandum, Sept. 15, 1992; MCC Defendants' Response, OMPI,³ Ex. 1.) It also warned that

the College will discipline teachers who sexually harass their students or gratuitously and regularly use profane, vulgar, or obscene language in the classroom.

(Id.) The Court notes that the policy and the memorandum deal with two separate issues -- first, sexual harassment, and second, the use of non-germane, profane language.

The Court recognizes that there is a significant difference, constitutionally, between the First Amendment protections afforded to an individual regarding use of classroom language, and use of language to retaliate against a student. Nevertheless because Bonnell's classroom language was the basis for the student's complaint, it is important to note that there is no evidence that Bonnell's use of profane language in the classroom was ever directed toward a particular student.

MCC's sexual harassment policy was revised in February 1996 and May 1997. Defendant MacQueen, MCC's Vice President for Human Resources, issued a memorandum on July 30, 1997 which he distributed with the policy and which stated:

Regular use of profane, vulgar or obscene speech in the classroom which is not germane to course content (and thus educational purpose) as measured by professional standards will lead to the imposition of discipline.

(MCC Defendants' Response, OMPI, Ex. 3.)

On January 19, 1998, a parent of a Bonnell student (not the student complainant in this matter) complained to MCC about a handout Bonnell distributed in class. (See Letter by Keith Waller, Jan. 19, 1998; MCC Defendants' Response, OMPI, Ex. 4.) The handout, titled My Semester Overview, was prepared in 1991 by one of Bonnell's former students and reviewed Bonnell's course. The review is generally favorable, except for the professor's use of profanity. (See My Semester Overview, MCC Defendants' Response, OMPI, Ex. 4.) Bonnell contends that he distributes this handout to his students at the beginning of each semester in order place them on notice of the type of language he employs in teaching the English course.

Based on the January 19, 1998 complaint from the parent, MacQueen initiated an investigation. MacQueen wrote Bonnell a memo on February 19, 1998 regarding "Obscene and vulgar language in classroom," and scheduled a meeting with Bonnell and his union representative on February 26, 1998. (See MCC Defendants' Response, OMPI, Ex. 5.) In a memorandum dated February 23, 1998, Bonnell agreed to the meeting and defended the language he used. (See MCC Defendants' Response, OMPI, Ex. 6.)

Bonnell explained that he never directed any vulgar terms toward a particular student, and that he only used the words to demonstrate an academic point. With regard to the terms in My Semester Overview, Bonnell contended that he rarely used words like "pussy" or "cunt" as they are so emotionally charged. Bonnell maintained that he employed these terms to demonstrate "the chauvinistic, degrading attitudes in society that depicts women as sexual objects, as compared with certain words used to describe male genitalia which are not taboo or considered to be deliberately intended to degrade." (Plaintiff's Brief, OMPI, at 3.)

The February 1998 investigation concluded with MacQueen issuing Bonnell a warning letter on March 4, 1998. The letter advised Bonnell that:

Unless germane to a discussion of appropriate course materials and thus a constitutionally protected act of academic freedom, your utterance in the classroom of such words as `fuck,' `cunt,' and `pussy' may serve as a reasonable basis for concluding as a matter of law that you are fostering a learning environment hostile to women, a form of sexual harassment.

(Memorandum Regarding Obscene and Vulgar Speech, March 4, 1998; Plaintiff's Brief, OMPI, Ex. C.)

During the 1998 fall semester, a second complaint was filed against Bonnell, which became the catalyst for the action at bar. On November 6, 1996, a female student enrolled in Bonnell's English 122 course telephoned MCC to complain about his classroom language. An, as yet, unidentified MCC employee instructed her to reduce her complaint to writing. She, thereafter, filed a written complaint which, in four places, termed her complaint about language as relating to sexual harassment. MCC, thereafter, treated it as a sexual harassment complaint. The written complaint alleged that, in discussing sexually charged literature, Bonnell used "lude [sic] and obscene comments ... [which] were dehumanizing, degrading, and sexually explicit." (Sexual Harassment Complaint, Nov. 6, 1998; (Attachment 1) MCC Defendants' Brief, OMPI, Ex. 8.) Based on this charge, Defendant Demas, MCC's Dean of Arts and Sciences, instituted an investigation of Bonnell on November 16, 1998. Demas provided Bonnell a copy of the complaint and informed him that a meeting was scheduled to discuss it, and...