Trejo v. Shoben

• Decision Date: 30 January 2003
• Docket Number: No. 00-3341.,00-3341.
• Citation: 319 F.3d 878
• Parties: Leonard J. TREJO, Plaintiff-Appellant, v. Edward J. SHOBEN, Jessie G. Delia, Larry R. Faulkner, Louis F. Fitzgerald, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

319 F.3d 878

Leonard J. TREJO, Plaintiff-Appellant, v. Edward J. SHOBEN, Jessie G. Delia, Larry R. Faulkner, Louis F. Fitzgerald, et al., Defendants-Appellees.

No. 00-3341.

United States Court of Appeals, Seventh Circuit.

Argued February 26, 2002.

Decided January 30, 2003.

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Robert Kirchner (argued), Lerner & Kirchner, Champaign, IL, for Plaintiff-Appellant.

Richard P. Klaus (argued), Heyl, Royster, Voelker & Allen, Urbana, IL, for Defendants-Appellees.

Before FAIRCHILD, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Leonard J. Trejo was a non-tenured assistant professor of psychology at the University of Illinois Urbana-Champaign campus who received three one-year appointments to his position in each of the school years between 1994-95 and 1996-97 before he got into trouble necessitating his discharge. After the University terminated him in August 1997, Trejo filed suit under 42 U.S.C. § 1983, alleging that the University violated his constitutional rights to freedom of speech and due process under the Constitution of the United States and the State of Illinois. The district court dismissed Trejo's free speech claims and granted the University's motion for summary judgment with respect to Trejo's due process claims. We affirm.

I. FACTUAL BACKGROUND

In August 1994, as part of an affirmative action plan, Leonard J. Trejo was appointed to teach as a probationary, non-tenured assistant professor in the department of psychology at the University of Illinois. Trejo's appointment was subject to renewal at the end of each school year, and he was eligible to be considered for tenure only if he met the University's expectations for teaching courses, researching and publishing articles, and serving as a mentor to students over the course of several years. The University came to the conclusion after an investigation that Trejo had failed to meet these expectations. In October 1995, the chairman of the psychology department, Edward J. Shoben, received several complaints from students about Trejo's misconduct and, after an investigation, expressed concerns about Trejo's "trustworthiness, lack of judgment, and serious problems relating to students, especially women." Thereafter, Shoben drafted a report of his conclusions and findings and contacted the University's administrators and recommended Trejo's termination. The administrators then proceeded to conduct their own independent investigation and, after review, refused to renew Trejo's contract.

The complaints that Shoben received concerning Trejo were made by several female graduate students who approached Shoben upon their return from an academic conference in Toronto, Canada, they attended with Trejo in October 1995. Trejo and the Illinois students were lodged in the same hotel that was also the site of the academic conference, and following the first day of presentations, they met with several of the conference attendees for late night drinks and a meal at the hotel's restaurant and bar. Over the next 45 minutes, Trejo attempted to regale his dinner companions with a discussion of a documentary recently aired on a local television station concerning the sexual behavior of primates.

Trejo vociferously opined that there is a relationship between pregnancy, orgasms, and extramarital affairs and went on to advocate sex outside marriage and extramarital affairs. Trejo claims that his intent was to foster an academic debate over sociobiological theories of mating by asking whether "we can take an animal model of sexual behavior and extrapolate it to humans." He characterized his comments as being intellectual and clinical in nature, saying that he focused exclusively on matters of reproductive biology and scrupulously avoided the use of questionable or offensive language. It is interesting to note that in his deposition before trial, Trejo refused to concede that his statements—which incorporated the use of hand gestures to demonstrate various parts of the female anatomy, including the cervix—were objectionable in any respect.

Every other man and woman seated at the table that evening at the conference was offended by Trejo's speech, concluding that he was "out of control" and that his remarks were little more than thinly veiled sexual solicitations directed at the female graduate students in the group. One graduate student, Leun Otten, stated that Trejo was using the conversation as a way to broach "matters related to sex." Graduate student Jennifer Isom and Wichita State University Professor Darryl Humphrey concurred with Otten's sentiments, stating that Trejo (who was married at the time) was trying to persuade the women at the table to embrace the notion that it is acceptable to have an extramarital affair. When referring to Trejo, a third graduate student, Timothy Weber, stated that the entire conversation "had sexual undertones" and a propositioning aspect, adding that Trejo "seemed to be testing the waters, possibly trolling for females or finding companionship for the evening." Graduate student Blair Hicks further was of the opinion that Trejo seemed to be taking some sort of sadistic pleasure in making the female students feel uncomfortable. Indeed, once Trejo left the table, an embarrassed Professor Humphrey subsequently felt it necessary to apologize to the students for Trejo's behavior.

Trejo seemed indifferent to the concerns of his dinner companions, for he continued his pattern of sprinkling off-color comments into conversations during the next several days of the conference. For example, later that same evening Trejo invited graduate students Jennifer Keller and Brandy Isaacks to play cards in his hotel suite, and after they grew tired Trejo commented that the female students should undress, declaring, "Well, it's either we're going to quit playing cards or we're all going to get naked and go to bed!" The next night, as Trejo and Humphrey were preparing to attend a party in the hotel's grand ballroom, Trejo proceeded to make vulgar and disgusting comments and jokes about women, using coarse and derogatory language that we refuse to repeat in this opinion.¹ He also suggested to Humphrey that they should "go to the president's party and see if we can find some women to bring back!" Later on, while in attendance at the party, Trejo struck up a conversation with a Stanford University professor who knew Isaacks and commented that he "wanted to get [his] hands on her."

In addition to making sexually charged comments in the presence of male and female professors and students, Trejo also saw fit to engage in childish behavior while attending a party in Humphrey's hotel suite. After lamenting the fact that he was having marital problems, Trejo decided that he wanted to entertain his guests and drink a can of beer while standing upside-down on his head. Trejo repeatedly pleaded with Keller to pour the beer in his mouth but she refused. Trejo eventually found another person to serve him alcoholic beverages in this peculiar manner as he proceeded to become intoxicated. Meanwhile, the party continued into the wee hours of the morning until about 2 a.m., and at this time, Trejo telephoned Isaacks and awoke her, impersonated a male graduate student, and invited her to his room to play cards. Not surprisingly, Isaacks declined the invitation and remained in her room.

In the days following the Illinois delegation's return to the campus, Trejo persisted with his unwelcome invitations to engage Keller and Isaacks in extracurricular social activities. Trejo sent the two women an e-mail inviting them to play euchre at a local tavern. In the e-mail, titled "Obligatory Challenge," Trejo alluded to his impending divorce by referring to his wife as "my soon-to-be-ex (STBX)" and writing, "Well, my STBX has always said I'm a male chauvinist. Perhaps that's why I'd like to challenge J & B to a rematch at euchre. How about it guys?" The students responded that they were not interested and thereafter consulted their faculty mentor, Gregory Miller, and told him about Trejo's lascivious behavior in Toronto. The students ultimately decided to meet with Shoben and expressed their concerns about Trejo's continuous pattern of unwelcome, inappropriate, boorish behavior and requested Shoben's assistance in resolving these problems. The students went on to explain they felt uncomfortable and awkward around Trejo and were avoiding contact with him by steering clear of his office and were refusing to enroll in his classes. They added that they were reluctant to approach Trejo directly and file a formal grievance in view of the fact that he served on a committee that distributed research grants and they were in fear of possible retaliation.

Shoben proceeded to investigate the complaints, and after speaking with more than a dozen individuals, he concluded that Trejo had behaved boorishly around numerous female graduate students ever since his arrival in Urbana in August 1994. Shoben learned, among other things, that Trejo solicited at least three students for dates, even going so far as to invite one woman to "dress up in something skimpy" and take a motorcycle ride with him on the beach. Shoben also became aware during his investigation that Trejo had similar difficulties with this type of conduct at his prior place of employment at the Navy Personnel Research and Development Center in southern California.

Shoben spoke with Trejo on three separate occasions between December 1995 and March 1996 in an attempt to inform Trejo of the allegations and invite a response. Trejo took umbrage and denied the charges, but as Shoben proceeded with the investigation, one of his main concerns was that Trejo appeared to be less than truthful. For example, Trejo initially refused to admit contacting Isaacks in the middle of the night and criticized Shoben for believing that he was "the kind of person who would do something like call a female graduate student...