Isabell v. Trs. of Ind. Univ.

• Decision Date: 07 January 2020
• Docket Number: CAUSE NO. 3:18cv364 DRL-MGG
• Citation: 432 F.Supp.3d 786
• Parties: Cynthia ISABELL, Plaintiff, v. The TRUSTEES OF INDIANA UNIVERSITY and Teresa Dobrzykowski, Defendants.
• Court: U.S. District Court — Northern District of Indiana

432 F.Supp.3d 786

Cynthia ISABELL, Plaintiff,

v.The TRUSTEES OF INDIANA UNIVERSITY and Teresa Dobrzykowski, Defendants.

CAUSE NO. 3:18cv364 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed January 7, 2020

Edward L. White, Ann Arbor, MI, Geoffrey R. Surtees, Francis J. Manion, New Hope, KY, for Plaintiff.

Michael C. Terrell, Erica M. Knear, James R. A. Dawson, Melissa A. Macchia, Taft Stettinius & Hollister LLP, Indianapolis, IN, for Defendants.

OPINION AND ORDER

Damon R. Leichty, Judge, United States District Court

When Indiana University passed Dr. Cynthia Isabell over for a full-time position as a clinical assistant professor in the nursing school, she sued claiming that her recent blog exposing her pro-life views on abortion motivated its retaliation. Although she originally asserted several claims, at this stage she presses only two: a First Amendment claim against Dr. Teresa Dobrzykowski individually, and a claim under the Indiana Conscience Statute against the Trustees of Indiana University.

All other claims have been abandoned; and in several respects rightfully so because, for instance, the Eleventh Amendment would bar money damage claims against Indiana University and its Board of Trustees as well as state representatives (such as Dr. Dobrzykowski) in their official capacities. See , e.g. , Haynes v. Indiana University , 902 F.3d 724, 731-32 (7th Cir. 2018) ; Peirick v. Indiana Univ.-Purdue Univ. Indianapolis Athletics Dept. , 510 F.3d 681, 695 (7th Cir. 2007). These other claims abandoned and dismissed, the court addresses only what remains.

BACKGROUND

Indiana University hired Dr. Isabell on August 1, 2016 as an adjunct professor in the school of nursing at the Indiana University South Bend campus. ECF 27-1 at 27:10-29:25. She returned to teach a maternal-child nursing course during the spring 2017 semester. Id. at 31:23-32:3. Dr. Isabell has a doctorate in nursing practice and many years of experience in clinical practice and instruction. ECF 27-2 at 61-64; ECF 34-15 at 2.

On August 12, 2016, Dr. Isabell published a blog article titled How a Formerly Pro-Choice Nursing Instructor Discusses Abortion with Her Students . ECF 27-5. Dr. Isabell described the blog as "libertarian" discussing "social, medical, and political" issues. ECF 27-1 at 64-65. In the article, she explains that she philosophically had been pro-choice at one time and even had assisted with therapeutic abortions, but over time she changed to a pro-life view "based on the anatomy and physiology of pregnancy, and on logical reasoning," and on "biology, human anatomy and physiology, and not a particular religion." ECF 27-5. Dr. Isabell testified that she did not discuss this article with anyone at Indiana University. ECF 27-1 at 65-66, 92, 127.

On October 18, 2016, Indiana University posted a new clinical assistant professor of nursing position that was full-time for the 2017-2018 academic year and required a specialization in maternal newborn and women's health nursing. ECF 27-1 at 52; 27-2 at 66. Indiana University formed a search and screen committee to receive and evaluate applicants, conduct interviews, and ultimately make a recommendation for hiring to the Dean of Indiana University South Bend's College of Health Sciences. Four faculty members in the nursing school served on the committee: Dr. Teresa Dobrzykowski served as chair; Professor LeAnna LeLime, Professor Barbara White, and Professor Joyce Palmateer served as members. ECF 27-10 at 14-21; 27-11 at 11.

Dr. Cynthia Isabell and Ms. Angela Gatto applied for the clinical assistant professor position, sometimes called the CAP. ECF 27-1 at 53:24-54:3, 57:14-25. At the time of application, Ms. Gatto was teaching obstetrics nursing at Ivy Tech Community College in South Bend. ECF 27-12 at 8:5-24. After reviewing the materials submitted, the search and screen committee chose to interview both candidates. ECF 27-2 at 90:14-19. Dr. Isabell was interviewed on January 30, 2017, and Ms. Gatto was interviewed on February 2, 2017. ECF 27-1 at 59:5-11; ECF 27-12 at 11:19-20; ECF 13.

Thus began the first part of the hiring process. ECF 14. This interview was intended to consist of committee members asking the candidates questions from a pre-determined list prepared in advance of the interviews. ECF 27-1 at 61:11-62:24; ECF 27- 2 at 36:3-10; ECF 27-15. That same list of questions was supposed to be used for each candidate for the same position. ECF 27-9 at 16-17.

During Dr. Isabell's interview, Dr. Dobrzykowski also asked the following question: "How would you discuss controversial topics, healthcare controversial topics, and introduce them to students in a teaching manner." ECF 27-2 at 36:7-25; see also ECF 27-1 at 63:5-22 (testifying that Dr. Dobrzykowski asked her, "using science, how would [she] discuss a controversial issue with [her] nursing students when [she's] at clinical"). Dr. Dobrzykowski testified that she frequently asks this question of candidates during the interview process because "in healthcare there are a lot of ethical dilemmas and concerns" and the question is "about seeing how [the candidate] would provide students an opportunity to talk about things that normally occur in everyday nursing." ECF 27-2 at 37:16-38:4. According to Ms. Gatto, no one, including Dr. Dobrzykowski, asked her questions about how she would teach or introduce a controversial topic to students. ECF 27-12 at 22:9-18. Nor did anyone, including Dr. Dobrzykowski, ask Ms. Gatto about abortion. Id . at 23:6-7.

Although Dr. Dobrzykowski believes she asked this same question of Ms. Gatto during her interview with the search and screen committee (ECF 27-2 at 37:12-15), Ms. Gatto does not remember being asked this type of question (ECF 27-12 at 22:9-14). Dr. Dobrzykowski claims she had no knowledge of Dr. Isabell's viewpoint on abortion at that time. ECF 27-2 at 90:4-13. Dr. Isabell testified in response to the question: "I just sat there with my mouth open. I thought to myself – so I thought to myself, she read my article. That was the first thing I thought." ECF 27-1 at 63:23-64:2. Dr. Dobrzykowski agreed that the question closely matched the title of Dr. Isabell's article. ECF 27-2 at 88:6-18.

Professor Palmateer testified that Dr. Dobrzykowski asked Dr. Isabell, "In light of recent controversy, how will you use science to have discussion with your students?" ECF 34-5 at 28-30. Professor Palmateer thought "at that time it was right in the midst of lots of Planned Parenthood's controversy and lots of abortion issues...There was no other real controversy at the time that I could think of." Id . Professor Palmateer saw Dr. Dobrzykowski "kind of prodding a little bit more and a little bit more." Id. So Professor Palmateer interjected to move the conversation to something appropriate by saying: "Abortion isn't an issue. This is a mother baby unit. They've had the baby." Id . at 30:10-14.

Dean Clark testified that her expectations of any Indiana University search committee would include consistency in the questions asked of candidates, a complete avoidance of questions about religious, moral, or political beliefs, and uniformity in the manner in which interviews are conducted. Id . at 42:2-43:6; 68:8-69:9. Indeed, Indiana University policies governing search and screen committee interviews, which Dean Clark testified would have applied during the Isabell/Gatto interviews, were clear that, (1) "[t]he goal of the interview is to collect accurate information in a uniform manner from all respondents"; (2) interviewers should "[a]sk the same questions of each candidate"; (3) "[a]sking different questions of each candidate leads to a skewed assessment of who would best perform the job." ECF 34-8 at 41:7-12; ECF 34-9 at 1-2, "Best Practices for a Successful Interview," Indiana University, Human Resources.

The next part of the hiring process for both candidates was a mock teaching presentation to the search and screen committee and other faculty members of the School of Nursing. ECF 27-1 at 72:7-73:14; ECF 27-13; ECF 27-14. All faculty members in the School of Nursing received an open invitation to attend the teaching presentations if their schedules permitted. ECF 27-10 at 99:11-19; ECF 27-11 at 74:18-75:3. The teaching presentations were an integral part of the hiring process because it gave faculty members "an idea of how [the candidate] would be in a classroom, their strengths and weaknesses." ECF 27-11 at 56:25-57:4; see also ECF 27-10 at 91:1-14 (noting that "the interview presentations [are] very revealing"). The search and screen committee and faculty members who attended each presentation were provided evaluation forms to fill out with comments regarding each candidate. ECF 27-2 at 79:6-14, 99:21-5; see also generally ECF 27-14 at 3; ECF 27-17; ECF 27-18.

After the interviews with the search and screen committee and teaching presentations for both candidates concluded, Dr. Dobrzykowski compiled the notes that were taken by the committee and faculty members and created a chart detailing the strengths and weaknesses of both candidates. ECF 27-2 at 104:6-106:24; see ECF 27-19. Dr. Dobrzykowski sent the chart to Dean Clark for use in her own evaluation of the two candidates. ECF 27-2 at 107:21-108:7; ECF 27-9 at 73:19-77:5. In addition, on behalf of the search and screen committee, Dr. Dobrzykowski sent an email to Dean Clark recommending Ms. Gatto for the CAP position. See ECF 27-19. Dr. Dobrzykowski testified that the search and screen committee "had a strong agreement about which candidate [it] preferred." ECF 27-10 at 68:5-13.

Although Dean Clark spoke briefly on the phone with both Dr. Isabell and Ms. Gatto, and reviewed their curriculum vitaes, she attended neither interview, and did not review the written evaluations completed by the faculty members who observed the teaching presentations. ECF 27-9 at 76:23-77:14. When asked what documents she reviewed in deciding whether to accept the...