Silva v. University of New Hampshire

• Decision Date: 15 September 1994
• Docket Number: Civ. No. 93-533-SD.
• Citation: 888 F. Supp. 293
• Parties: J. Donald SILVA v. The UNIVERSITY OF NEW HAMPSHIRE, et al.
• Court: U.S. District Court — District of New Hampshire

888 F. Supp. 293

J. Donald SILVA v. The UNIVERSITY OF NEW HAMPSHIRE, et al.

Civ. No. 93-533-SD.

United States District Court, D. New Hampshire.

September 15, 1994.

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Paul McEachern, Michael P. McDonald, Portsmouth, NH, for plaintiff.

Jack B. Middleton, Manchester, NH, for defendant.

ORDER

DEVINE, Senior District Judge.

Plaintiff J. Donald Silva, an Instructor of Communications at the Thompson School of Applied Science at the University of New Hampshire (UNH or the University) and a tenured member of the UNH faculty, brings this action pursuant to 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. §§ 1983 and 1988, and New Hampshire law, against defendants UNH; Dale Nitzschke, President of UNH;¹ Dr. Brian A. Giles, Director of the Thompson School; Neil B. Lubow, Associate Vice President for Academic Affairs at UNH; Mary M. Clark, Professor of English at UNH and member and chair of the UNH Sexual Harassment Appeals Board which adjudicated Silva's case ("Appeals Board"); Elizabeth Dolan, Associate Professor at UNH and member of the Appeals Board; Stephen Fink, Professor at UNH and member of the Appeals Board; and Shannon Cannon and John Denning, students at UNH and members of the Appeals Board.

Silva seeks (1) a declaratory judgment that the defendants' conduct violates his right to freedom of speech under the First and Fourteenth Amendments; (2) a declaratory judgment that the defendants' conduct denies Silva his civil rights under color of state law in violation of section 1983; (3) a permanent order enjoining defendants from acting to prevent Silva from teaching at UNH or from otherwise punishing him on the basis of protected speech; (4) damages under section 1983 for the alleged violation of Silva's First Amendment right to freedom of speech and his Fourteenth Amendment right to due process; (5) damages under New Hampshire law based on allegations of breach of contract and breach of a contractual duty of good faith and fair dealing; and (6) an award of reasonable costs and attorneys' fees pursuant to section 1988.

Presently before the court are plaintiff's motion for a preliminary injunction, to which defendants object, and defendants' motion for summary judgment,² to which plaintiff objects.

An evidentiary hearing on plaintiff's motion for a preliminary injunction was held on September 12, 1994. At said hearing, the parties each made offers of proof based on the voluminous record before the court on defendants' motion for summary judgment. In addition, Silva and defendant Lubow testified at said hearing.

Factual Background

The University System of New Hampshire USNH Sexual Harassment Policy states:

SEXUAL HARASSMENT

All faculty, staff and students have a right to work in an environment free of discrimination, including freedom from sexual harassment. It is the policy of the University System of New Hampshire that no member of the University System community may sexually harass another. The intent of this policy is not to create a climate of fear but to foster responsible behavior in a working environment free of discrimination.

Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

— such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating a hostile or offensive working or academic environment.

— submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting that individual.

— submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or academic work. (Section 1604.11 of the EEOC's Guidelines on Sexual Discrimination)

Examples of conduct which may, if continued or repeated, constitute sexual harassment are:

— unwelcome sexual propositions

— graphic comments about a person's body

— sexually suggestive objects or pictures in the workplace

— sexually degrading words to describe a person

— derogatory or sexually explicit statements about an actual or supposed sexual relationship

— unwelcome touching, patting, pinching or leering

— derogatory gender-based humor

Such conduct whether intended or not constitutes sexual harassment and is illegal under both State and Federal law. Violations of this policy will not be permitted. Any faculty, staff or student who violates this policy will be subject to discipline up to and including dismissal.

Plaintiff's Memorandum of Law in Opposition to Summary Judgment, Exhibit 1 (Affidavit of John E. Mulhern, Jr.), Enclosure # 3.

In February of 1992, Silva was teaching a course in technical writing entitled Communications 212. The course is designed to train students to develop skills in technical reporting. In describing his pedagogical approach during the first class session at issue, Silva states,

I compared focusing the thesis statement of a technical report with the sexual relationships between persons and how familiarity and experience are part of the communication, if focus is to occur. This comparison was on an intellectual plane and the purpose was to relate an abstract concept to everyday experiences most students are familiar with....

Focusing is the second stage of the writing process after collecting information. Focusing on the central idea of a long technical report is a complex task for freshmen in their second semester. The relationship of the writer to her subject must have intimacy and proximity similar to the sexual relationship between people.

Focusing requires the same long probation, adjustment, centering, a back and forth, give and take relationship until the writer and the subject are connected and fused as one. The experience is the writer, the writer is the experience. It is only as every aspect of the technical writing situation is united and connected that it can be said to have a focus. The traditional definition is to say, the report has a thesis statement, but focus is much more than an abstraction at this stage of the process. Focus objectifies the personal experience, the act of fusion into language of the careful observations made by the writer.

Letter of April 30, 1992, from J. Donald Silva to Dr. Brian Giles at 2 (Silva Deposition, Exhibit 7).

On February 24, 1992, Silva made the following statement to his technical writing class,

I will put focus in terms of sex, so you can better understand it. Focus is like sex. You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.

Complaint at 8.

Two days later, during the second technical writing class session at issue, Silva employed the following pedagogical approach.

I used Little Egypt's definition of belly dancing to illustrate how a good definition combines a general classification (belly dancing) with concrete specifies in a metaphor (like jello shimmying on a plate) to bring home clearly the meaning to one who wishes to learn this form of ethnic dancing.

Silva's April 30 Letter to Giles, supra, at 1. Specifically, Silva stated to his class, "Belly dancing is like jello on a plate with a vibrator under the plate." Complaint at 8. Silva explains,

I used the definition to catch the attention of my class to gain their attention when they did not comprehend the explanation....

Little Egypt's definition of belly dancing is classic in its use of concrete differentia and simple metaphor, i.e. the trembling jello equates to the essential movements necessary to the dance. It is unlike the dance but also its very essence.

....

The intellectual task was to increase the student's understanding of definition and apply it in her own attempts to define concepts in her technical report, using the simple example as a model.

Silva's April 30 Letter to Giles, supra, at 1-2.

At the preliminary injunction hearing, Silva testified that he does not understand the relationship between the USNH Sexual Harassment Policy and the remarks he made in class.

In his affidavit, Silva states, "I had used both examples in my classes on numerous prior occasions without incident, the Little Egypt simile since the early 1970's. I considered both illustrations to have legitimate pedagogical goals." Silva Affidavit at 2. Further, at his deposition, Silva engaged in the following exchange with defendants' counsel.

Q Now, you've said a number of times that you've used Little Egypt's belly dancing/Jello vibrator statement —

A Definition.

Q — In your classroom for fourteen years?

A Yes, I've used it just about every year. Not necessarily every section of every class. At that particular time — I used it in that one section and I had two other sections but I did not use that definition.... I picked it up in 1972 and —

Q And how about the analogy of focus to sex; how many times had you used that in your classroom in the past?

A Well, you know, I really can't recall exactly.³ I do know the first time I read it, something like that, was an interview with Ernest Hemingway in either the Paris Review or the Patern Review just before he died in the early sixties, '60 or '61. And then I read it further — I read it further with David Bartholomew — I think that's his name — who writes for The New Yorker magazine, he said a similar thing. And then another place where I read it was Ray Bradbury, the science writer, said practically exactly the same thing.

Silva Deposition at 212-13.

On the date of the belly dancing statement, six students from Silva's technical writing class met with Dr. Jerilee A. Zezula, an Associate Professor of Applied Animal Science at the Thompson School, to complain about Silva's classroom statements. Dr. Zezula's description of this meeting is in a three-page document dated February 26, 1992, entitled "Inves...