Flor v. Bd. of Regents of the Univ. of N.M.

Decision Date13 May 2021
Docket NumberCiv. No. 20-27 JAP/LF
Citation539 F.Supp.3d 1176
Parties Nick Vincent FLOR, Plaintiff, v. The BOARD OF REGENTS OF the UNIVERSITY OF NEW MEXICO et al., Defendants.
CourtU.S. District Court — District of New Mexico

Carter B. Harrison, IV, Nicholas Thomas Hart, Harrison & Hart, LLC, Albuquerque, NM, Samantha Harris, Pro Hac Vice, Allen Harris PLLC, Narberth, PA, for Plaintiff.

Alisa Wigley-DeLara, Conklin, Woodcock & Ziegler, PC, Albuquerque, NM, for Defendants The Board of Regents of the University of New Mexico, Kevin Gick, Lisa Broidy, Karin High, Stephen Bishop, Eric Lau.

Eva Chavez, Pro Se.

MEMORANDUM OPINION AND ORDER

James A. Parker, SENIOR UNITED STATES DISTRICT JUDGE

Plaintiff Nick Flor, a tenured professor at the University of New Mexico ("UNM"), was suspended without pay for one year after he was found to have violated university policies against quid pro quo sexual harassment and retaliation. In this lawsuit, Plaintiff alleges, inter alia , that various university employees violated his right to procedural due process, and he seeks damages, as well as injunctive and declaratory relief.

Defendants Stephen Bishop, Lisa Broidy, Kevin Gick, Karin High, and Eric Lau (collectively "Individual Defendants")—the UNM employees who were involved in the hearing process through which Plaintiff challenged his suspension—move for summary judgment on Counts I ( 42 U.S.C. § 1983 ), II (injunctive relief), and III (declaratory judgment) of Plaintiff's SECOND AMENDED COMPLAINT ("SAC"), Doc. 68.1 Plaintiff opposes the Motion and asks the Court to defer ruling on it to allow him an opportunity to take discovery under Federal Rule of Civil Procedure ("Rule") 56(d).2 Individual Defendants filed a reply in support of their Motion.3

Having reviewed the briefs, the record, and the applicable law, the Court concludes that the Motion should be GRANTED IN PART AND DENIED IN PART and that Plaintiff's Rule 56(d) request for limited discovery should be DENIED.

BACKGROUND

The facts of this case, viewed in the light most favorable to Plaintiff, are as follows.

This lawsuit stems from UNM's one-year suspension of Plaintiff, an Associate Professor in UNM's Anderson School of Management, after the UNM Office of Equal Opportunity ("OEO") determined that Plaintiff violated university policies against sexual harassment and retaliation.4 In early 2019, the OEO concluded that Plaintiff (1) engaged in quid pro quo sexual harassment of Defendant Eva Chavez ("Ms. Chavez"), a graduate student in the Anderson School of Management, in violation of Administrative Policies and Procedures Manual - Policy 2740: Sexual Misconduct (2018)5 ("Policy 2740"), and (2) retaliated against Ms. Chavez in violation of Administrative Policies and Procedures Manual - Policy 2720: Prohibited Discrimination and Equal Opportunity (2018)6 ("Policy 2720") when she threatened to report to UNM administrators the sexual communications she and Plaintiff had exchanged via email and text messages between May and July 2018. See Resp., Ex. O at 20–227 ; Resp., Ex. P. Plaintiff appealed the OEO's determination to the President of UNM, who denied Plaintiff's appeal, and then to the Board of Regents, which likewise denied his appeal. See SAC at ¶¶ 72–75.

In October 2019, UNM School of Law Vice Dean Camille Carey, who had been tasked with recommending an appropriate sanction, informed Plaintiff that he was being suspended without pay for twelve months, beginning January 1, 2020 and ending December 31, 2020. See TRO Mot., Ex. K. In accordance with the procedures set forth in Faculty Handbook C07: Faculty Disciplinary Policy ("Policy C07"), Plaintiff requested a faculty peer hearing to challenge his suspension. See Resp., Ex. E; Resp., Ex. J at §§ 10–11. Defendant Stephen Bishop, an Associate Professor of French at UNM and Chair of UNM's Faculty Ethics and Advisory Committee, coordinated the hearing process, including securing two of the three members for the hearing panel, but did not serve on the panel that reviewed Plaintiff's suspension. See Mot. at 5 (Individual Defendants’ Undisputed Material Facts ("Defs.’ UMF") 1–4); Mot., Ex. A at ¶¶ 2–4, 6, 7, 10. Defendant Lisa Broidy, a UNM Professor of Sociology and member of the Faculty Ethics and Advisory Committee, and Defendant Karin High, a UNM Professor of Anesthesiology and member of the Faculty Ethics and Advisory Committee, agreed to serve on the panel, with Defendant Broidy agreeing to serve as the panel's chairperson. See Defs.’ UMF 5–6; Mot., Ex. B at ¶¶ 2–38 ; Mot., Ex. C at ¶¶ 2–3. In accordance with Policy C07, the UNM Provost selected the panel's third member, Defendant Eric Lau, Chair of the Music Department. See Defs.’ UMF 7; Mot., Ex. D at ¶¶ 2–3. Defendant Kevin Gick, Associate University Counsel, consulted with and advised the panel about process and procedure in conducting the hearing. See Defs.’ UMF 8; Mot., Ex. E at ¶¶ 2–4.

Although Defendant Bishop did not serve on the panel, he communicated with Plaintiff at the beginning of the process regarding the scope of the peer hearing and what evidence Plaintiff would be allowed to submit. See Mot., Ex. A at ¶ 4; Resp., Ex. E at ¶ 9. Defendant Bishop "advised" Plaintiff that the hearing panel "would be tasked to review the sanction against [Plaintiff] and would not review the investigation of the Office of Equal Opportunity and its findings and determinations with respect to Professor Flor." Mot., Ex. A at ¶¶ 4–5; see also Resp., Ex. E at ¶ 11. He did so based on his understanding that "[t]his scope of review was consistent with Policy C07, which tasked the panel with ‘uphold[ing] or revers[ing] the proposal to suspend the faculty member without pay.’ " Mot., Ex. A at ¶ 5 (alterations in original) (quoting Policy C07).

On December 3, 2019, the panel sent an email to Plaintiff and Vice Dean Carey, the respondent in the hearing, introducing the panel's members, explaining the hearing process, and notifying the parties that the panel would hold a pre-hearing meeting with the parties on December 17, 2019. See Resp., Ex. B at 1. On December 4, 2019, the panel met with Defendant Gick and discussed "general hearing related matters as well as a request from the [sic] Dr. Flor that they reschedule the pre-hearing meeting so that his lawyer could be there." Id.

On December 9, 2019, the panel informed the parties via email that "[t]he underlying nature of this hearing procedure is that it is a faculty driven process" and that the panel "will not deviate from standard practice and allow [Plaintiff's] attorney to directly represent [Plaintiff] during the hearing." Resp., Ex. R at 1. The panel stated that it was unpersuaded that the "mere fact" that Vice Dean Carey, a faculty member in the School of Law, is an attorney and "trained in the field to which her faculty appointment pertains" warranted a departure from standard practice. See Resp., Ex. R at 1. Reiterating that "the hearing is a faculty driven process[,]" the panel also denied Plaintiff's request to reschedule the December 17 pre-hearing meeting. Id. at 2. The panel explained that the purpose of the pre-hearing meeting was to "discuss logistics such as scheduling" and allow the parties to "present statement(s) of the issue(s) they would like the Panel to decide" and indicated that "[n]o substantive decisions will be made at the meeting." Id. Finding that "the presence of advisors is not strictly necessary at the meeting[,]" the panel informed the parties that participation in the pre-hearing meeting would be limited to the panel chairperson and the parties. Id.

At the pre-hearing meeting, Plaintiff argued that "the hearing cannot consider the fairness of the sanctioning process and outcome without consideration of the fairness of the OEO process and decision underlying the sanction" and asked the panel to consider three issues: (1) "[w]hether OEO followed appropriate policy and process in arriving at their decision;" (2) "[w]hether the process that led to the sanction followed policy;" and (3) "[t]he appropriateness of the sanction." Resp., Ex. D at 12. Vice Dean Carey "rejected" the first and second issues as being "outside ... the intended scope of the hearing" but agreed that the scope of the hearing should include the appropriateness of the sanction. Id.

Following the pre-hearing meeting, Defendant Broidy conferred with the full panel regarding what issues should be included in the scope of the panel's review and what evidence would be admissible. See id. at 12, 13. The panel determined that it would "NOT consider whether OEO followed appropriate policy and process in arriving at their decision" but would consider (1) whether the process that led to the sanction followed Policy C07, and (2) the appropriateness of the sanction. Id. at 13 (emphasis in original). In discussing the panel's decision not to consider anything related to the OEO's process and decision, Defendant Broidy explained that it was the panel's "understanding that the process for appealing the OEO process and determination has already been exhausted via appropriate channels (appeal to the President and Board of Regents). As such the hearing will not re-weigh the evidence OEO gathered or considered, nor will it re-evaluate their process or determination." Id. Commensurate with its decision to limit the scope of the hearing to the sanctioning process and the sanction itself, the panel agreed to allow the introduction of evidence related to the underlying OEO complaint only "to the extent that evidence considered by OEO has bearing on our determination of whether the C07 sanctioning process was followed appropriately and whether the sanction was fair[.]" Id. The panel "reserve[d] the right to exclude or ignore evidence submitted or presented if we determine it is irrelevant to our determination of the appropriateness of the sanctioning process or outcome." Id.

On January 13, 2020, Defendant Broidy sent a letter to Plaintiff and Vice Dean Carey, informing them that the...

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