Cameron v. Arizona Bd. of Regents

• Decision Date: 26 April 2012
• Docket Number: 1 CA-CV 10-0323
• Parties: THERESA CAMERON, Plaintiff/Appellant, v. ARIZONA BOARD OF REGENTS, a public entity; and MICHAEL CROW, in his official capacity as President of Arizona State University, Defendants/Appellees.
• Court: Arizona Court of Appeals

THERESA CAMERON, Plaintiff/Appellant,

v.ARIZONA BOARD OF REGENTS, a public entity; and MICHAEL CROW,

in his official capacity as President of Arizona State University, Defendants/Appellees.

1 CA-CV 10-0323

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT D

Dated: April 26, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

AMENDED MEMORANDUM DECISION

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. LC2008-000628-001

The Honorable Robert C. Houser, Judge

AFFIRMED

Martin & Bonnett, PLLC

by Susan Martin

Daniel L. Bonnett

Mark A. Bracken

Jennifer L. Kroll

Attorneys for Plaintiff/Appellant

Phoenix

Cohen Kennedy Dowd & Quigley, P.C.

by Daniel G. Dowd

Rebecca van Doren

Attorneys for Defendants/Appellees

Phoenix

GEMMILL, Judge ¶1 This is a wrongful discharge case. Dr. Theresa Cameron ("Cameron") challenges the superior court's decision upholding the termination of her employment as a tenured associate professor at Arizona State University ("the University"). For the reasons that follow, we affirm that decision.

FACTS AND PROCEDURAL BACKGROUND

I. Cameron Receives Tenure

¶2 The University hired Cameron, an African-American woman, as an assistant professor in The College of Design, School of Planning in 1997. In that capacity, Cameron was responsible for teaching courses on subjects such as critical infrastructure planning. She received tenure and an associate professor position in 2000.

II. The Post-Tenure Review Process

¶3 During February 2006, a majority of the students in two of Cameron's classes signed petitions complaining about her preparedness, professionalism, and competence. After meeting with the students, the University removed Cameron from one of the classes on or about February 21, 2006.

¶4 On June 2, 2006, Dean of the College of Design, Wellington Reiter ("Reiter"), notified Cameron in writing that she would be subject to the post-tenure review process basedupon unsatisfactory performance. The review, designed to address deficiencies in her teaching performance, never progressed beyond the evaluation stage due to intervening events.

III. Misconduct Allegations

¶5 In March 2007, Kenneth Brooks ("Brooks"), ASU Associate Dean for the College of Design, began receiving reports of alleged misconduct by Cameron. Upon investigating the reports, Brooks became concerned that Cameron had engaged in possible plagiarism, student intimidation, and violation of the course review procedures.

¶6 Initially, some of Cameron's PUP436 students complained that the course syllabus was not consistent with the material being presented in class. In reviewing the syllabus, Brooks confirmed the inconsistency and, based upon discrepancies with Cameron's previous work, began to question its originality. Internet searches confirmed that Cameron had copied material verbatim from syllabi published by others. Additional research confirmed that Cameron had used other sources, without attribution or the authors' permission, to create at least six course syllabi over several years.

¶7 Meanwhile, a student who had previously raised concerns about Cameron in PUP436 (Student A), reported to Dr. Hemalata Dandekar ("Dandekar") that he/she and another student(Student E), had a confrontation with Cameron after class on March 7, 2007. The class was required for graduation. According to Student A, Cameron told Student E that she "did not want him/her in the class anymore." Student A said that this forced him/her to engage in "damage control" and he/she became concerned about retaining a place in the class. Student A expressed concerns about further contact with the University based upon fears of retaliation.

¶8 Finally, Associate Professor Ruth Yabes ("Yabes") reported to Brooks that Cameron had violated University policy during their co-taught class in the Fall of 2006. According to Yabes, Cameron distributed the evaluation forms herself and remained in the room while the students were completing them.

IV. Cameron's Dismissal

¶9 In light of the allegations raised, Reiter placed Cameron on leave with pay on March 19, 2007. On April 10, 2007, Reiter sent Cameron his recommendation that she be dismissed for cause. Cameron appealed the recommendation, and conciliation efforts failed.

¶10 ASU sent Cameron a notice of dismissal on September 7, 2007. The notice stated that just cause existed for this action because Cameron (1) failed to follow the University's protocol for student evaluations, (2) engaged in perceived retaliatory conduct against two students enrolled in one of her classes, and(3) plagiarized the work of other authors in developing six course syllabi.

V. This Litigation

¶11 Cameron timely appealed her dismissal to the ASU Faculty Senate's Committee on Academic Freedom and Tenure ("CAFT") in a letter dated September 17, 2007. CAFT accordingly conducted a dismissal appeal hearing on April 22 and May 5, 2008, pursuant to Arizona Board of Regents ("ABOR") Policy 6-201.L. The University had the burden of proving just cause for Cameron's termination by a preponderance of the evidence. See ABOR Policy 6-201(L)(4)(h)(8).

¶12 In its advisory Findings of Fact, Conclusions, and Recommendation, CAFT found that the University had carried its burden and established that Cameron had plagiarized course syllabi, but did not carry its burden with respect to the charges of retaliatory conduct and improper implementation of course reviews. CAFT advised that the plagiarism could best be addressed through enhanced post-tenure review or a performance improvement plan. It also rejected Cameron's April 18, 2007 grievance concerning the University's failure to complete the post-tenure review process.

¶13 Under ABOR policy, University President Michael Crow ("Crow") was authorized to "approve, disapprove, or modify the committee recommendation" by CAFT. ABOR Policy 6-201(L)(4)(j).On June 23, 2008, Crow rejected CAFT's Findings, Conclusions, and Recommendation. Crow upheld the earlier termination decision on all three grounds. He then affirmed CAFT's determination that Cameron's grievance concerning post-tenure review was moot. He likewise rejected Cameron's request for reconsideration of both decisions on August 12, 2008.

¶14 In accordance with Arizona Revised Statutes ("A.R.S.") section 12-904(A) (2003), Cameron filed a complaint for administrative review against ABOR and Crow (collectively "ASU") in the Maricopa County Superior Court on September 15, 2008. Litigation ensued over whether the administrative record included materials from the case of former ASU Professor Charles Arntzen ("Arntzen"), a file that was in CAFT's possession. According to Cameron, a graduate student had accused Arntzen, a white male, of plagiarism for misappropriating work without attribution, yet he had not been fired. The superior court ultimately denied Cameron's motion to supplement the record to include such materials, which Cameron had never attempted to offer into evidence or to use in questioning witnesses.¹

¶15 On the merits, Cameron filed an opening brief attacking the orders based upon: (1) a violation of due process,(2) a denial of equal protection, (3) a lack of substantial evidence to support the termination decision, and (4) an abuse of discretion in failing to complete the post-tenure review process. A full round of briefing followed.

¶16 The superior court affirmed Cameron's termination after finding substantial evidence to support ASU's decision. On March 1, 2010, the court filed a signed judgment dismissing the complaint and awarding no fees or costs. This appeal followed.²

ANALYSIS

I. The Record Contains Substantial Evidence Supporting Cameron's Termination For Just Cause.

¶17 We review an administrative agency's decision to determine "whether there has been an unreasonable action which was taken without consideration and in disregard of the facts and circumstances." Taylor v. Ariz. Law Enforcement Merit Sys. Council, 152 Ariz. 200, 202, 731 P.2d 95, 97 (App. 1986). We will not reweigh the evidence, and we will affirm the agency's decision "if there is any substantial evidence in support thereof, and if the action taken by the agency is within therange of permissible agency dispositions." Id. (citing Howard v. Nicholls, 127 Ariz. 383, 621 P.2d 292 (App. 1980)).

¶18 Cameron challenges the misconduct findings on the merits and claims the sanction imposed was "shockingly disproportionate" to the misconduct found. In addition, she maintains that the superior court violated due process and abused its discretion in excluding her expert and documents, and erroneously ruled that she was not entitled to complete the post-tenure review process. We address these arguments in turn.

A. Substantial Evidence Supports Cameron's Dismissal Based Upon Plagiarism Alone.

1. ABOR Policy and the University's Enforcement Role

¶19 The ABOR has jurisdiction to control and supervise all state universities, and to enact regulations for their government. ABOR Policy 5-301(A)(1). Accordingly, the ABOR has adopted a Code of Conduct (ABOR Policy 5-301 et seq.) to meet these responsibilities under Arizona law. Id.

¶20 Each university's administration assists in the enforcement of these policies, including the Code of Conduct. ABOR Policy 5-301(A)(2). The University is not prohibited by the ABOR Policies from adopting conditions, rules, regulations, and procedures consistent with the Code of Conduct. ABOR Policy 5-301(D)(1). Employees are subject to discipline for violatingthe published rules and regulations of conduct. ABOR Policy 5-303.

¶21 According to the ABOR's policy on dismissal or suspension of tenured faculty members:

a. Tenured faculty members shall not be dismissed or suspended without pay except for just cause. Such dismissal or suspension may take effect only following an

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