Walter v. Queens Coll.

• Decision Date: 03 June 2019
• Docket Number: 18 CV 3060 (RJD) (SLT)
• Citation: 390 F.Supp.3d 382
• Parties: John D. WALTER, Plaintiff, v. QUEENS COLLEGE, Felix V. Matos Rodriguez, Pamela S. Silverblatt, Cynthia W. Rountree and Glenda Grace, Defendants.
• Court: U.S. District Court — Eastern District of New York

390 F.Supp.3d 382

John D. WALTER, Plaintiff,

v.QUEENS COLLEGE, Felix V. Matos Rodriguez, Pamela S. Silverblatt, Cynthia W. Rountree and Glenda Grace, Defendants.

18 CV 3060 (RJD) (SLT)

United States District Court, E.D. New York.

Signed June 3, 2019

James Edward Figliozzi, Kimberly C. Lau, Warshaw Burstein, LLP, New York, NY, for Plaintiff.

David Bruce Diamond, Todd Alan Spiegelman, Office of the New York State Attorney General, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEARIE, District Judge:

On January 27, 2016, Plaintiff John D. Walter ("Plaintiff" or "Walter") was terminated from his position as an adjunct lecturer at the Aaron Copland School of Music at Queens College ("College") after serving in the position for over nine years. Walter taught a variety of music courses to hundreds of students, including one called "Private Vocal Lesson," which, as a matter of practical necessity and longstanding College practice was held off campus because in the College's view, the fees paid to adjunct professors were not enough to justify the expense of traveling to campus for private lessons. Walter, who suffered from chronic atrial fibrillation

, held lessons at his apartment, which he shared with a female roommate. Walter's termination came after an allegation surfaced that he had engaged in sexually inappropriate conduct during a private vocal lesson in violation of the College's Policy on Sexual Misconduct ("Policy"). Prior to the single in-person meeting where Walter was made aware of the allegation, he received no information about the nature or subject of the meeting, and at no time was Walter informed that he faced termination. On January 26, 2016, two weeks after Walter's only in-person meeting, which he attended alone, without a Union representative as was his right pursuant to his Collective Bargaining Agreement ("CBA"), the College's Title IX coordinator, Defendant Rountree, issued a written report regarding the allegation. The next day Walter was terminated. Walter subsequently contested his termination through a three-step grievance procedure pursuant to his CBA. The appeals were unsuccessful.

Walter now brings procedural and substantive due process claims pursuant to 42 U.S.C. § 1983 against Queens College and various Queens College employees (together, "Defendants"). Specifically, Walter's procedural due process claims arise under two theories: (i) the College's Policy regarding sexual misconduct is vague as applied to his alleged conduct and failed to put Walter on notice that his alleged conduct constituted a Policy violation, and (ii) the Defendants failed to afford Walter constitutionally adequate pre- or post-deprivation process. Defendants move to dismiss the complaint against Queens College on the grounds of Eleventh Amendment immunity and against all Defendants for failure to state a claim. For the reasons that follow, Defendants' motion is granted with respect to Queens College and Walter's substantive due process claim and denied with respect to Walter's vagueness and pre-deprivation procedural due process claims.

BACKGROUND

I. The College's Policy on Sexual Misconduct

The Policy on Sexual Misconduct states, in relevant part, "[t]his policy prohibits sexual harassment, gender-based harassment and sexual violence" and explains that "[s]exual harassment includes unwelcome conduct of a sexual nature, such as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic and electronic communications or physical conduct that is sufficiently serious to adversely affect an individual's participation in employment, education or other CUNY activities." Defs.' Br., Ex. C, ECF No. 30-3. The policy goes on to explain that conduct is considered "unwelcome if the individual did not request or invite it and considered the conduct to be undesirable or offensive." Id. For example, the policy notes that "inappropriate or unwelcome physical contact or suggestive body language, such as touching, groping, patting, pinching, hugging, kissing, or brushing against an individual's body" as well as "verbal abuse or offensive comments of a sexual nature, including sexual slurs, persistent or pervasive sexually explicit statements" or "undue and unwanted attention" including "making sexually suggestive gestures" are circumstances that might constitute sexual harassment "depending on the totality of the circumstances." Id.

II. Events Leading to Walter's Termination

As part of his course in the fall 2015 semester, Walter provided one-on-one tutorials in his home, consistent with long-standing College practice and because "the fees paid to adjunct professors do not justify the time and expense of traveling to campus to teach private lessons." Complaint, ECF No. 1, at ¶¶ 6, 93. At the end of the semester, while hosting a female student for a vocal lesson, Walter began experiencing acute physical symptoms and physical pain including body aches and neck pain—side effects of certain medications he was prescribed following three different surgeries related to his chronic atrial fibrillation

. Id. ¶¶ 51. As alleged in the Complaint, Walter expressed his physical pain to his female student, who responded by voluntarily offering to apply pressure to his neck to relieve the pain using a technique she learned from her grandmother. Id. ¶¶ 8, 53. Walter alleges the student stood up from the piano, where he and the student were sitting, stood behind him and applied pressure to his neck using her thumb for less than one minute. Id. ¶¶ 8, 54. At the end of the vocal lesson, Walter asked the student to apply pressure to his neck a second time and the student allegedly obliged "without hesitation," and applied pressure again for less than one minute. Id. ¶ 55. The student left Walter's apartment. She ultimately received a B+ in her vocal class, which she was allegedly "unhappy with" and "felt should have been higher." Id. ¶ 56.

On December 22, 2015 the student met with the College's Title IX coordinator, Rountree. The student claimed that while in Walter's apartment for a vocal lesson, Walter made comments to her "of a sexual nature" and "on one occasion laid on a couch and insisted that she give him a massage." Id. ¶ 91. Rountree emailed Walter on January 8, 2016, requesting an in-person meeting "to discuss a confidential matter of importance." Id. ¶¶ 84, 86. When Walter asked if he could participate in the meeting by telephone in light of his medical condition, he stated "my employment is not in jeopardy, so I don't understand why I am being summoned with no explanation." Id. ¶ 86. Rountree did not respond to Walter's statement and "refuse[d] to provide Walter with notice of why she wanted to meet with him, or the fact that he was under investigation by Queens College." Id. ¶ 87. Walter met with Rountree on January 12, 2016, and was told, for the first time, that he was under investigation by the College for a violation of its Policy on Sexual Misconduct, and in particular its prohibition on making unwelcome comments of a sexual nature and for asking a student "to massage his neck while he lay on the couch" in his home. Id. ¶ 95. However, Rountree did not provide Walter with a "written summary of the allegations" "as mandated by Queens College's Policies and Procedures." Id. ¶ 94. Walter denied the allegations and claimed that he never received a "massage" on his couch. Id. ¶ 96. He admitted that the student applied pressure to his neck while they sat at the piano. Id. ¶ 97. Walter left the meeting and was never asked to identify or provide any names of any witnesses. Id. ¶ 98. Walter alleges he left the meeting "completely confused about what was going on." Id. At some point following Walter's meeting with Rountree, but before his termination, Walter learned, and subsequently notified Rountree, that the complaining student had "physically and sexually assaulted" another student and "had been dismissed from a prominent jazz club as an intern for harassing another employee." Id. ¶ 108. The complaint does not make any allegations with respect to whether Rountree investigated or substantiated those allegations in compiling her report.

After the meeting with Walter, Rountree concluded her investigation by interviewing three other students—who were identified as "witnesses" by the complaining student but were not actually present during her private lessons—and conducted an additional interview of the complaining student. Id. ¶ 99, 105. One witness, whom Rountree interviewed while the complaining student sat in the same room, recalled what the complaining student said about Walter but claimed Walter "never engaged in inappropriate conduct" towards her, did not report hearing Walter make any comments of a sexual nature in her presence and could only recall that at one point Walter "stated that his ex-girlfriend was Japanese." Id. ¶ 101. Another student similarly recounted the complaining students' allegations and claimed that Walter made "sexual comments" to her during two private lessons. Id. ¶ 104. The third student stated she never heard Walter make any inappropriate comments. Id. ¶ 106. Thereafter, the complaining student advised Rountree that she kept audio recordings of her vocal lessons that should contain inappropriate comments.¹ Id. ¶ 106. The student never provided Rountree with any recordings, claiming that after about two hours of review of the recordings she found herself "pretty depressed" and stopped searching. Id. ¶ 112. Rountree made no attempts to secure these critical recordings. Id. ¶¶ 113-14.

Rountree prepared a written report, dated January 26, 2016, which was never disclosed to Walter. Id. ¶¶ 114-15. The report concluded that the complaining student's allegations regarding knee touching and massaging while Walter lay face down on the couch and moaned loudly could not be substantiated. Id. ¶ 117. Rountree did, however, credit the student's claim that Walter asked her "to massage his neck" and ...