Orr v. S. Dakota Bd. of Regents
| Decision Date | 11 May 2023 |
| Docket Number | 1:19-CV-01023-CBK |
| Parties | DR. THOMAS ORR, Plaintiff, v. SOUTH DAKOTA BOARD OF REGENTS, DR. KELLY DUNCAN, FORMER NSU DEAN OF EDUCATION, IN HER INDIVIDUAL CAPACITY; MEMBERS OF THE SOUTH DAKOTA BOARD OF REGENTS, IN THEIR OFFICIAL CAPACITIES; AND DR. NEAL H. SCHNOOR, NSU PRESIDENT, IN HIS OFFICIAL CAPACITY; Defendants. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff Dr. Thomas On contends that defendants Dr. Kelly Duncan, Dr Neal H. Schnoor[1], the South Dakota Board of Regents, and the members of the Board of Regents violated various federal laws by interfering with his use of paternity leave and retaliating against him for several protected activities by refusing to give him tenure. This matter is before the Court on cross motions for summary judgment.
In 2011, Northern State University hired Dr. Thomas Orr as a tenure-track professor for the Health and Physical Education Department within the University's School of Education. Dr. Orr was responsible for teaching a variety of classes focusing on sports and wellness. In June 2015, the University hired Dr. Kelly Duncan to replace Dr. Constance Geier as Dean of the School of Education. Dr. Duncan had earlier been the Secretary of the South Dakota Department of Education. When the University hired Dean Duncan, Dr. Orr was serving as the Department's “coordinator,” a position with a heightened level of responsibility. Dr. Duncan was hired from outside the school despite Dr. Orr's contention that an internal candidate had much support from the search committee. Dr. Orr began to have issues and confrontations with Dean Duncan during her first semester that worsened over time. In May 2017, Dean Duncan hired Dr. Ross Flom to be “chairperson” of both the Health and Physical Education Department and the Counseling and Psychology Department, which were the two departments in the School of Education. The chair position replaced Dr. Orr's coordinator role. Dr. Orr did not receive this news well and immediately spoke with others about being relieved of his position and discussed applying for new jobs elsewhere.
Following Dean Duncan's decision to promote Dr. Flom, there were a series of meetings among Dr. Orr, Dean Duncan, and Susan Bostian, the University's Director of Human Resources. At the first meeting in June, Dean Duncan wanted to explain her decision to promote Dr. Flom in lieu of Dr. Orr. Dr. Orr believed that Dean Duncan was retaliating against him and made several general complaints about her management of the Department. He also complained about some of his other colleagues. Dr. Orr accused the Department of racially discriminating against Dr. Geumchang Hwang, a Korean professor whose contract was not renewed in the prior year. Dr. Orr had previously raised these concerns about racial discrimination allegedly directed at Dr. Hwang in an email to Provost Alan LaFave, University General Counsel John Meyer, and then-President James Smith when the decision was made to not renew Dr. Hwang's contract. A few days after the June meeting, Dr. Orr sent a lengthy e-mail to President Timothy Downs, Provost Alan LaFave, and Ms. Bostian raising his complaints about the changes to the coordinator role and Dean Duncan generally. He requested reinstatement to his former position and suggested moving his program outside of the School of Education. In July, Dr. Orr e-mailed the same group to renew his concerns and specifically accuse Dean Duncan of racial discrimination towards Dr. Hwang. Dr. Orr, Provost LaFave, Dean Duncan, Ms. Bostian, and General Counsel Meyer met again in August, and Dr. Orr raised the same complaints about Dean Duncan's management while Provost LaFave urged civility and collegiality. Provost LaFave gave great advice.
That fall, Dr. Orr applied for promotion and tenure. The tenure committee met on December 15,2017, to review Dr. Orr's application along with several other faculty member's applications. The eight-member committee was comprised of Dean Duncan, Jon Schaff, Josh Hagen, Kenneth Boulton, Sara Christensen Blair, Timothy Mantz, John Peterson, and Constance Geier. Even a casual observer would know that Dean Duncan had various axes to grind and should have recused herself from the tenure committee with respect to Dr. Orr's application. A reasonable jury could find it outrageous that no one in administration, including legal counsel, even suggested that Dean Duncan should recuse. This is not due process of law. The first amended complaint rather “dances around” a claim of due process but I find the allegations are barely sufficient, at least at this point. The University evaluates its tenure decisions based on three different areas: teaching, service, and research. In his tenure application letter, Dr. Orr reviewed those categories and with respect to research stated that he was working on two textbooks. Five members, Ms. Blair, Mr. Mantz, Mr. Hagen, Mr. Boulton, and Dean Duncan voted against Dr. Orr's tenure application. Mr. Schaff abstained. Mr. Petersen and Dr. Geier voted in favor. The committee forwarded its recommendation against granting Dr. Orr's tenure application to President Downs on the same day.
Around the same time that Dr. Orr applied for tenure, his wife was pregnant with their child. On December 27, 2017, he emailed Ms. Bostian to inquire about the possibility of taking paternity leave. Ms. Bostian responded to Dr. Orr and explained the University's policy allowing him to use six weeks of paid sick leave while on paternity leave. She attached a standard letter that stated Dr. Orr's rights under the Family Medical Leave Act and the required forms for Dr. Orr to complete. The initial Leave Act form that Dr. Orr submitted on January 16, 2018, indicated that he intended on taking zero to thirty days of leave. Dr. Orr left for paternity leave on January 17, 2018, and returned to work around March 7, 2018.
After the tenure committee submitted its recommendation to President Downs, he conducted an evaluation of Dr. Orr's application where he reviewed Dr. Orr's tenure binder and accompanying materials. Based on that review, President Downs decided to deny Dr. Orr's application for tenure and so informed him on March 23, 2018. Dr. Orr initiated a grievance to appeal the denial. During the appeal process, President Downs inquired into the status of Dr. Orr's two textbooks and learned that one of the books was put on hold by the publisher due to a lack of progress. When President Downs met with Dr. Orr to discuss his tenure application appeal, President Downs asked Dr. Orr to show progress on his two books. Dr. Orr provided several chapters of one book that had a handful of minor edits from the prior edition and apparently admitted the other book was on an indefinite hold. Based on that showing, President Downs believed that Dr. Orr was deficient in research and informed him on April 30,2018, of the reasons he was denied tenure. Dr. Orr was able to appeal administratively that decision again and received his final denial of tenure on October 22, 2018.
Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56; Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018). The United States Supreme Court has held that:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Celotex Corp, v. Catrett, 477 U.S. 317, 322-23 (1986) (internal quotations omitted).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). That is, to make summary judgment inappropriate, there must be a factual dispute concerning facts the existence or nonexistence of which “must be outcome determinative under prevailing law.” Walls v. Petrohawk Props., LP, 812 F.3d 621, 625 (8th Cir. 2015) (quoting Grey v. City of Oak Grove, 396 F.3d 1031, 1034 (8th Cir. 2005)).
Thus in accordance with Rule 56(c), the party seeking summary judgment must first identify grounds demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Upon such a showing, the burden shifts to the nonmovant to present affirmative evidence, beyond the pleadings, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256-57. To meet its burden, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmovant must be able to “show there is sufficient evidence to support a jury verdict in their favor.” Nat'l Bank of Com, v. Dow Chern. Co., 165 F.3d 602, 607 (8th Cir. 1999). After this exercise, “we view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party.” Northport Health Servs. of Ark., LLC v. Posey, 930 F.3d 1027, 1030 (8th Cir. 2019). “To show a genuine dispute of material fact, a party must provide more...
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