Nelson v. University of Maine System

• Decision Date: 29 January 1996
• Docket Number: Civ. No. 95-0179-B.
• Parties: Richard NELSON and Edwin Jessiman, Plaintiffs, v. UNIVERSITY OF MAINE SYSTEM, Defendant.
• Court: U.S. District Court — District of Maine

914 F. Supp. 643

Richard NELSON and Edwin Jessiman, Plaintiffs, v. UNIVERSITY OF MAINE SYSTEM, Defendant.

Civ. No. 95-0179-B.

United States District Court, D. Maine.

January 29, 1996.

COPYRIGHT MATERIAL OMITTED

George Schelling, Gross, Minsky, Mogul & Singal, Bangor, Maine, for Plaintiffs.

F. Paul Frinsko, Bernstein, Shur, Sawyer & Nelson, Portland, Maine, for Defendant.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiffs Richard Nelson and Edwin Jessiman, professors at the University of Maine at Mathias, sue the University of Maine System, an academic institution incorporated under the laws of Maine. Plaintiffs filed a five count complaint alleging violations of their rights under Title IX of the Education Act Amendments of 1972, 20 U.S.C. §§ 1681-1688 (Counts I and III), and the First Amendment to the United States Constitution and Article I § 4 of the Maine Constitution, (Counts II and IV). Nelson also sues for breach of contract (Count V).

The University of Maine System pleads several affirmative defenses, including: (1) failure to state a claim for violation of the freedom of speech and breach of contract, (2) statute of limitations, and (3) preemption. Plaintiffs move to strike these defenses under Federal Rule of Civil Procedure 12(f). Defendant moves for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Court addresses these motions below, denying Plaintiffs' Motion, and granting Defendant's Motion as to Count II, IV & V.

I. Background

Plaintiffs Nelson and Jessiman teach at the University of Maine at Mathias. Jessiman is tenured, Nelson is not. Jessiman holds a Ph.D, and teaches in the Behavioral Sciences Department. He was first hired as an assistant professor of Psychology in 1977, before being promoted and later tenured. Jessiman previously served as the Chairman of the Student Disciplinary Committee. Nelson, a professional historian and educator, earned two doctoral degrees, one in Education, and another in American History, and taught for ten years at the college level before coming to Machias. He has published several books and scholarly articles.

Both professors have "spoken out on behalf of persons whom they believed had been discriminated against on grounds of gender," and have "raised concerns" about certain University staff members as to their "discriminatory treatment both to women and those who work to advance gender equality." (Am.Compl. ¶ 1). Nelson and Jessiman claim that the University ignored their complaints, and later retaliated against them for this action. In the case of Jessiman, this retaliation came by way of the University failing to properly investigate complaints of sexual harassment lodged against him. These complaints remain in Jessiman's Equal Employment Opportunity file. Nelson claims the University retaliated against him by denying him tenure.

Jessiman and Nelson cite the following facts as relevant.

• February 11, 1991: Jessiman requested a hearing to determine whether cause existed to file formal charges and possible censure against Dr. James Lehman, an associate professor of Behavioral Sciences, for improper conduct towards faculty and students. No action was taken in response to Jessiman's request.

• May 11, 1991: Jessiman and Nelson wrote a letter to then University President Frederic A. Reynolds, documenting several incidents of improper conduct involving Dr. Lehman and Sean Casey, then Athletic Director and Men's Head Basketball Coach. President Reynolds allegedly promised to look into these matters.

• September, 1992: Nelson and Jessiman wrote to current University President Nordstrom requesting an investigation into allegations of sexual harassment and sexual discrimination.

• September 22, 1994: Jessiman forwarded to President Nordstrom a copy of his May 11, 1991 letter to Dr. Reynolds.

In the fall of 1994, President Reynolds informed Jessiman that complaints had been lodged against him for sexual harassment. These charges stem from Jessiman's allegedly improper conduct during a class he taught on sexuality. Jessiman contends he encouraged the University to investigate these allegations, offered tape recordings of the class for review, and produced the names of other students present in the class. He claims that the University never considered any of this evidence.

Professor Nelson applied for tenure in September of 1992. Nelson cites these additional facts as relevant to the alleged retaliatory denial of his tenure application.

• September 21, 1992: Nelson filed a grievance against Dr. Sloan, regarding the composition of Nelson's Tenure Peer Committee. Nelson objected to the presence of two members of the committee because he had previously requested that these particular individuals be investigated for gender discrimination and other improprieties. Nelson claims that Sloan knew of Nelson's prior complaints against these individuals, but refused to exclude them from the committee.

• November 9, 1992: the Peer Committee approved Nelson's application for tenure, over the objection of the two members of whom Nelson had complained.

• December 18, 1992: the Professional Relations Committee recommended against granting tenure to Nelson, after meeting with the former Acting President of the University and Dr. Sloan, Chair of the Social Science Division. Dr. Sloan had refused to make a formal recommendation in favor of Nelson. Nelson contends that the Committee reviewed false and misleading information regarding Nelson's anti-discrimination activities in deciding to deny his tenure application.

• February 4, 1993: Nelson informed the Chancellor's office of the continuing practice of sexual harassment and gender discrimination at the University, and the practice of retaliation by the past two University Presidents against individuals who spoke out on these issues.

• February 12, 1993: Acting Academic Vice-President Virginia Cheney recommended to deny Nelson's tenure application after reviewing Nelson's alleged anti-discrimination activities.

• February 26, 1993: University President Nordstrom denied Nelson's application for tenure.

• March 16, 1994: Nelson filed a grievance, his second, alleging the use of false information, and non-contractual criteria in the denial of his tenure application. In hearings on May 9 and 10, 1994, arbitrator Richard G. Higgins heard these grievances. On September 5, 1994, Higgins decided that the University had violated the collective bargaining agreement in denying Nelson's tenure application.

II. Standard

A. Motion to Strike

Plaintiffs move to strike several of Defendant's affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f).¹ Under Rule 12(f) the Court may "order stricken from any pleading any insufficient defense." Fed.R.Civ.P. 12(f). Motions to strike, however, are disfavored, and they are rarely granted absent a showing of prejudice to the moving party. 2A Moore's Federal Practice, ¶ 12.213, 12-210 — 214 (1995); Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1381, 672 (1990). Courts grant motions to strike a defense "only if the defense is legally insufficient, and presents no question of law or fact that the court must resolve." 2A Moore's Federal Practice, ¶ 12.213 at 112-210.

The Court denies Plaintiffs' Motions to Strike, as the defenses raise legitimate legal issues. In re All Maine Asbestos Litigation, 575 F.Supp. 1375, 1377 (D.Me.1983). The Court discusses these substantive issues more fully in dealing with the Defendant's Motion for Judgment on the Pleadings.

B. Motion for Judgment on the Pleadings

Under Federal Rule of Civil Procedure 12(c), either party can file for judgment on the pleadings "after the pleadings are closed but within such time as not to delay the trial." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is appropriate when "all material allegations of fact are admitted in the pleadings and only questions of law remain." Wright and Miller, § 1367 at 510. See Geupel v. Benson, 704 F.Supp. 312, 313 (D.Mass.1989). The Court will not grant a 12(c) motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Rivera-Gomez v. Castro, 843 F.2d 631, 635 (1st Cir.1988). "Because the rendition of judgment in such an abrupt fashion represents an extremely early assessment of the merits of the case," the Court accepts the nonmoving party's well-pleaded facts as true, and draws all reasonable inferences in her favor. Id. (citing Bloor v. Carro, Spanbock, Londin, Rodman & Fass, 754 F.2d 57, 61 (2d Cir.1985)). Public policy, affording each litigant a full and fair hearing on the merits, warrants against imprudent use of this motion. Wright and Miller, § 1368 at 517.

III. Discussion

Defendant seeks judgment on the grounds that: (1) Plaintiffs' First Amendment claims, Counts II and IV, are subsumed by their Title IX claims, (2) Plaintiff Nelson's Title IX claim, Count III is barred by the applicable statute of limitations, and (3) Nelson's contract claim, Count V, is barred by the arbitrator's award. The Court grants Defendant's motion as to Count II, IV and V.

A. First Amendment Claims

Defendant moves for Judgment on the Pleadings on Plaintiffs' First Amendment claims, Counts II and IV, on the grounds that these claims are subsumed by their Title IX claims, Counts I and III. It is well settled that when Congress legislates and creates specific and comprehensive remedies to redress an individual plaintiff's rights, Congress can preclude private enforcement of constitutional claims when the relief sought is covered under the statute's remedial scheme. Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981); Smith v. Robinson, 468 U.S. 992, 1012-13, 104 S.Ct. 3457, 3468, 82 L.Ed.2d 746 (1984). The Sea Clammers doctrine holds that congressional...