DOE v. THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

PROFESSOR DOE, )

)

Plaintiff, )

)

v. ) 1:18CV726

)

THE BOARD OF GOVERNORS )

OF THE UNIVERSITY OF )

NORTH CAROLINA, et al, )

)

)

Defendants. )

ORDER,

MEMORANDUM OPINION, AND RECCOMENDATION

This matter comes before the Court on a Motion to Dismiss [Doc. #24] filed by

Defendants The Board of Governots of the University of North Carolina, The University of

North Carolina at Chapel Hill, Carol Folt in her official capacity as Chancellor, Ann Lemon

in her official capacity as Assistant Provost for Academic Personnel, and Kenneth T. Andrews

in his official capacity as Chair of the Department of Sociology. Plaintiff's Amended

Complaint [Doc. #15] raises claims for gender discrimination in violation of Title IX of the

Education Amendments of 1972 (First Claim), procedural due process (Second Claim),

constructive discharge and free speech (Third Claim), breach of contract (Fourth Claim),

defamation and bteach of confidentiality (Fifth Claim), and negligence and negligence per se

(Sixth Claim), and also includes motions for injunctive and declaratory relief, all related to a

disciplinary proceeding involving Plaintiff in his position as an assistant professor at UNC.

For the teasons that follow, the Court recommends that the Motion to Dismiss be granted as

to Plaintiff's federal claims and that the state law claims be temanded to state court.

I. FACTS, CLAIMS, AND PROCEDURAL HISTORY

Plaintiff filed a 108-page Amended Complaint. Because this matter is presented on a

motion to dismiss, the Coutt sets out the contentions as alleged by Plaintiff.

Plaintiff was an assistant professor at UNC in the Department of Sociology until he

left in June 2018. (Amended Complaint §] 10.1) The claims asserted arise out of his

interactions with a gtaduate student, identified as Jane Roe, and her complaints to UNC about

Plaintiff's conduct that she believed constituted sexual hatassment. Plaintiff contends that the

claims made against him were contrived due to Ms. Roe’s poor academic performance (id.

31-37), that he had spoken with her about her ongoing poor performance in his classes,

including during the spting 2015 semester (id. {{{] 35-36), and that as of February 2015, she was

failing the spring course (id. | 37), Around that same timeframe, in Match 2015, Plaintiffs

supetvisor, Kenneth Andtews, spoke with him about a student complaint that his office was

“too tightly arranged” and that “it was sometimes uncomfortable and awkward for students

to meet” with him because of the configuration, but Plaintiff contends that no other matter

was discussed at that time. (Id. ff] 39, 41.) Plaintiff re-arranged his office in response. (Id.

143.)

As alleged in the Complaint, Ms. Roe’s performance did not improve. According to

the Complaint, if she received a grade of “low pass,” her third while in the University’s

etaduate program, she would not be eligible to continue in the program. (id. {ff 45-48.)

Plaintiff alleges that he assigned a grade of “low pass,” and that after Ms. Roe received

notification of her grade, she called him and e-mailed him repeatedly, she showed up in person

and pled with him to have her grade changed, she put her arms around Plaintiffs torso in

teats, she followed him to the patking gatage, Plaintiff drove her back to the Sociology

Department, and she initially refused to get out of his cat until Plaintiff raised his voice to

make het leave. (Id. § 51.) On the following business day, Plaintiff alleges that Ms. Roe met

with an EOC Deputy Title [X Coordinator to report that Plaintiff had sexually hatassed het.

(Id. 953.) Plaintiff farther contends that on May 14, Ms. Roe requested a formal investigation

of Plaintiff for the time period “fall of 2014 to March 19, 2015,” based upon allegations that

he had closed door meetings (one-on-one) in which he would have her sit next to him, that

on at least ten occasions he placed his hand on her inner thigh for ten seconds, that he would

place his hands on her shoulders for several seconds, that he grabbed her hands and looked

into her eyes, and that he would write on het assignments to meet him in his office or that he

was happy to meet with her. (Id. 57.) Plaintiff contends he had no “meaningful” notice

to prepare for his interview with the Administrative Reviewer because he lacked any dates or

times for the alleged offenses. (Id. §] 59.)

With respect to the investigation, Plaintiff alleges that the Administrative Reviewer

improperly accepted testimony from other witnesses whom Ms. Roe believed could offer

similar information about theit experiences with Plaintiff but would not accept character

evidence about Plaintiff. Plaintiff also alleges that the University’s EOC failed to follow its

own tules by not attempting to reach an informal resolution of the dispute. (id. {[] 64-67.)

Accotding to the Complaint, Plaintiff was interviewed by the University’s Administrative

Reviewer on June 9 and 19, further met with the Reviewer several times between June 19 and

June 30, and was permitted to review but not copy the Reviewet’s notes. (Id. {[81.) According

to Plaintiff, the KOC Reviewer was biased because of her tone, because she told Plaintiff, “It’s

OK, you can tell me,” and because of a comment she made that, “She was pretty sute that she

understood this case.” (Id. J 82, 84.)

The Complaint alleges that thereafter, on August 20, his supervisor, Kenneth Andtews,

sent an email confirming the meeting that occurred on Match 24 regarding the arrangement

of Plaintiffs office, and mentioned in the email, for the first time; Plaintiffs “too-famuliar’” □

touching of students. (id. { 87.) In his Complaint, Plaintiff admits that he has “had chummy

and innocuous ‘physical contact’ with many students and colleagues in forms such as: high

fives, handshakes, and atm around the shoulder, holding of a hand in an emotional crisis, or a

friendly punch in the atm, ot (the act at issue in this case) a closed, outer fist’s tap to the outer

knee of someone seated next to him.” (id. [ 23.) Plaintiff also concedes that “[a] □□□ students

found Professor Doe’s office quarters cramped and his familiar, ‘non-sexual’ contact

nevertheless awkward at times.” (Id. at 7 101.tv.)

Accotding to Plaintiff, his contacts with students were originally interpreted as

nonsexual, non-aggressive, and non-predatory, but that one witness “recast” her perceptions

of the touching based upon her own sepatate experiences and her friendship with Ms. Roe,

and therefore her creditability should have been “unquestionably degraded” by the trier of

fact. (id. {[[ 95-98.) This witness is referred to in the Complaint as “Jane’s Friend,” but is

also later identified by Plaintiff as one of Plaintiffs former teaching assistants. As to this

witness, Plaintiff alleges that that Jane’s Friend told the Administrative Reviewer that she did

not originally think that Professor Doe’s interactions with het were inappropriate at the time

they occutted. dd. §/97.xii.) However, she reached back out to the Administrative Reviewer

to explain that she nevertheless thought “this counts as sexual harassment.” (d.) Plaintiff

alleges that this witness was willing to:

“statt a wat’ on “gender issues” if necessaty to get them “taken seriously” .. .

not because Professor Doe actually sexually harassed her (as het own testimony

would indeed later be that Professor Doe “never touched [her] thigh” and that

she “never ditectly said that [she] felt uncomfortable” with his familiar chummy,

non-sexual contact) but tather because she had previously been seriously

sexually assaulted multiple times . . . . [and] was actively suffering from and being

treated for PT'SD.

(id. § 97.iii, tv.)

An EOC Report was published on August 24, with redactions made appearing to -

protect the identity of individuals who were interviewed. (1d. {[{] 89, 90.) The Complaint,

apparently quoting from the EOC Report, alleges that the EOC Report concluded that that it

was mote likely than not that Plaintiff

“engaged in sexual harassment of [Jane Roe] [and there is] sufficient evidence

to support a pattern of behavior and propensity by [Plaintiff] to engage in

conduct with female students when working side-by-side with them, particularly

physical contact of vatious degrees which made them feel uncomfortable. The

evidence makes it more likely than not that [Jane Roe’s] version of the

events should be considered as true... .”

(dd. q 100) (emphasis in Amended Complaint). !

Plaintiff received a letter of reprimand on August 27 from Dean Hartlyn, which also

included the content of the email sent to Plaintiff by Defendant Andtews on August 20

regarding the arrangement of Plaintiffs office and his meetings with students. (1d. {[] 104-05.)

Jane Roe appealed to the Student Grievance Committee (SGC) contending that Plaintiff

should have been mote strictly disciplined. (Id. J 107.) Plaintiff completed his EOC training

requited by the EOC Report. (Id. { 108.)

While the SGC appeal was pending, Jane’s Friend (who was Plaintiffs former teaching

assistant) conducted an “invitation-only meeting” on November 13, which included “pnultiple

members of the EOC,” including its then director, the purpose of which was to discuss the

“roblem’ of Professor Doe temaining on campus and exposed to students.” (id. {] 111.)

The Complaint alleges that Jane’s Friend “intentionally disclosed confidential and defamatorily

misleading information.” (1d. {[ 112.) This was one of multiple meetings arranged by Jane’s

Friend which included UNC administrators and students. Demands were made by Jane’s

Friend that Plaintiff not teach and that he be dismissed. (id. {] 113.) According to the

harassment, Mr. Roe challenged het failing grade in Plaintiff's class. In light of the EOC Report, the Grade

Appeals Committee ultimately concluded that it “could not objectively determine the extent to which the cited

hatassment .. . made it difficult to perform at a passing level in the course.” (Id. ].75, 109.) Plaintiff disputes

the findings and Ms. Roe’s allegations. (Id. 76-77,

Complaint, UNC condoned these meetings and participated in them by sending administrators

who did not curtail the speech at the meetings by others. (dd. J 114.)

Plaintiff alleges that SGC hearings were conducted on December 9 and 17, but raised

a host of procedural irregularities or questionable testimony. (Id. 122.)? On January 12,

2016, the SGC affitmed the EOC’s finding that sexual harassment “has affirmatively

occutted.” (Id. J 124.) According to the Complaint, the opinion made the following finding:

Specifically, the Heating Panel concluded that the Respondent engaged in

unwelcome physical conduct based on sex that created a hostile, intimidating,

ot abusive environment for the Grievant. The Hearing Panel determined that

the Respondent placed his hand on the Grievant’s thigh while they were alone

2 Plaintiff contends that: the parties had different redacted versions of the EOC Report; that-neither party (nor

counsel) could directly ask questions of the other; that such questions were screened by a panel of three faculty

membets who were not licensed members of the North Carolina Bar and who received advice from the

University during the hearing (ex parte); that Ms. Roe could present all 4 of her witnesses but that only 4 of

Plaintiffs 24 witnesses testified due to discouragement from the. Panel due to the repetitive nature of their

testimony; that hearsay was accepted; that according to Plaintiff, some witnesses testified that the HOC

Administrative Reviewer failed to “adequately” establish contact with them and that their testimony was not

considered in an initial report; and that the Reviewer falsely informed one witness that the she had been

“nominated” by-Ms. Roe and not Plaintiff and that this apparently dissuaded her from testifying in the EOC

investigation.

Plaintiff also contends that during the heating, one student witness testified to having experienced the same leg

“bumping” by Plaintiff but believed it to be friendly, and that no one other than Ms. Roe testified that they had

been touched on the inner thigh. Plaintiff also contends that Ms. Roe had not “initially described the conduct

.. consistently,” because her prior statements did not reflect that Plaintiff touched her inner thigh. Plaintiff

also contends that Ms. Roe did not think of PlaintifPs touching as sexual for nine months, and that Jane’s

Friend (Plaintiffs former teaching assistant) did not think of Plaintiffs touching as sexual harassment at the

time and only changed her mind after she was the victim of an unrelated assault by someone else. Plaintiff also

contends that another friend of Ms. Roe testified to a much eatlier incident, years ago, involving Plaintiff

touching het and believed it to constitute sexual harassment but that she also had a poor academic relationship

and also mistakenly believed that Plaintiff did not ever bump male student’s outer-legs. In addition, Plaintiff

notes that the EOC Report found that other testimony for Ms. Roe was “generally unclear on the sequences

of events and the exchange of information and often did not speak confidently.” Plaintiff complains that

witnesses for Ms. Roe disclosed breaches of UNC’s Title [X policies by indicating that they knew of the

investigation and its findings, or by implication of the EOC investigation, and that Ms. Roe’s lawyer called him

a sexual predator. (id. ] 122.) Finally, Plaintiff contends that Ms. Roe never stated particular dates or times as

to the alleged harassment occurrences, and that evidence showed Ms. Roe’s motive for lying and the suspicious

timing of her allegations. (d. {J 123-34.)

in his office on more than one occasion. Although the Heating Panel did not

conclude that a preponderance of the evidence showed that such conduct

occutted with the frequency and duration alleged by the Grievant, the Heating

Panel found that the conduct was sufficiently severe and pervasive that it altered

the conditions of the Grievant’s education, thereby creating an environment

that a reasonable petson in similar circumstances and with similar identities

would find hostile, intimidating, or abusive.

(id. 4125.) Plaintiff did not appeal. Plaintiff alleges that he believed that it was not in his best

interest to appeal the EOC finding, because he would risk his career further without a

likelihood of obtaining a fair trial at the next level of review. (id. 9130.) Plaintiff contend

that “exhausting further administrative remedies would have been futile and inadequate” based

upon the atmosphere surrounding such claims. ((d. □□ 131.)

Accotding to the Complaint, following the conclusion of these proceedings, “Jane’s

Friend and Jane Roe each actively discussed the EOC investigation and resulting SGC

opinion” with other students and staff. (Id. ff] 133, 139.) According to Plaintiff, Ms. Roe and

het Friend wete agents or employees of the University as “teaching assistants, research

assistants, gtaduate student instructors or otherwise” when they spoke about Plaintiffs

situation, and the University failed to take actions to prevent this conduct. (1d. {J 144-45.)

Plaintiff alleges that by Match 2016, “as a result of Jane’s Friend and Jane Roe’s conduct,” he

had been “sttipped of all graduate courses he was teaching,” and thereafter was removed from

his work on the comprehensive exam committee, and that by Spring 2017 he was not

petmitted to meet with prospective graduate students. (Id. fff] 132, 143.) Plaintiff continued

to teach undergraduate coutses, and Plaintiff alleges that a year later, on June 30, 2018, he “had

no tational choice but to submit a letter of resignation in acknowledgement that his

employment had been effectively terminated.” (Id. ff] 153-154.) Plaintiff then filed the

present suit in state court, and the action was removed to this Court based on Plaintiffs

assettion of federal claims under Title IX and § 1983.

II. DISCUSSION

A. Standard for Motion to Dismiss

A plaintiff fails to state a claim upon which relief may be granted under Federal Rule

of Civil Procedure 12(b)(6) when the complaint does not “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 .

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. ‘Twombly, 550 U.S. 544, 570 (2007). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the teasonable inference that the defendant is liable for the misconduct alleged.” Igbal,

556 U.S. at 678. Thus, a plaintiffs “[flactual allegations must be enough to raise a tight to

telief above the speculative level,” thereby “nudgfing] their claims across the line from

conceivable to plausible.” ‘Twombly, 550 U.S. 544, 555, 570 (2007).

B. Title [X Discrimination

Plaintiffs First Claim, entitled “Title [X Violation for Gender Discrimination,” alleges

that the University is “subject to requirements of Title [X,” (Amended Complaint §] 163), that

under ‘Title IX gender discrimination is prohibited in education (id. {] 164), and that as an

employee Plaintiff is entitled to Title [X protections id. 4] 165). Defendants moved to dismiss

this first claim for failure to state a claim for discrimination under Title [X. Title IX states in

relevant part:

No. petson in the United States shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination

under any education progtam ot activity recetving Federal financial assistance.

20 U.S.C. § 1681(a) (2012).

In this case, Plaintiff contends that throughout the EOC investigation Jane’s Friend

“bote an extreme gender bias against men,” that Plaintiff hypothesizes infected the entire

ptoceeding, and that without this bias Ms. Roe’s likelihood of success “would have been

sevetely lessened.” (Id. ff] 168-169, 171, 172.) According to Plaintiff, therefore, the EOC

Administrative Reviewet was “equally or similarly biased against men” accused of sexual

assault, because she failed to mention these “limitations” in Jane’s Friend’s testimony and as a

result failed to “competently and equitably” consider these limitations on the credibility of the

evidence against Plaintiff. (id. {] 173.) Plaintiff speculates that the reviewing SGC Panel was

“equally ot similarly biased” against men, and notes that the University was under immense

pressure to be biased against men in light of campus wide pressure, statements by University

officials, a Department of Education investigation of the University’s EOC office, and national

news coverage of the issue of sexual hatassment by men. (Id. §] 175.)

“Because Title IX, which prohibits sex discrimination in education, was enacted to

supplement the Civil Rights Act of 1964, courts have interpreted it by looking to the case law

developed under ‘Titles VI and VII.” Haley v. Va. Commonwealth Uniy., 948 F. Supp. 573,

10

578 (B.D. Va. 1996) (citing Yusuf v. Vassar College, 35 F.3d 709, 714 (2nd Cit.1994)). In the

ptesent case, both patties agree that to state a Title IX discrimination claim Plaintiff must show

that: (1) he belongs to a protected class, (2) he suffered an unfavorable action, and (3) but for

his membership in the class, the adverse action would not have occurred. Haley, 948 F. Supp.

at 578 (citing Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir. 1982)). The last

element requites a showing of discriminatory intent. Id. A plaintiff may ultimately establish

such a claim by pointing to direct proof of discriminatory intent or by proceeding indirectly

under the burden-shifting scheme set out in McDonnell Douglas Corp. v. Green, 411 US.

792 (1973).

Here, Plaintiff contends that as a male he was in a protected class, that he suffered an

unfavorable action when he was found guilty of harassment and directed to participate in a

one-day training program, and that all of this was caused by the gender bias introduced by the

testimony and personal history of Jane’s Friend. Plaintiff contends that the testimony of Jane’s

Friend made Jane Roe appeat mote credible and was vital to Ms. Roe’s case. Plaintiff also

contends that the EOC investigator knew of and failed to disclose the Friend’s gender bias.

(PL Resp. Br. [Doc. #30] at 8-9.) Thus, Plaintiff believes that by permitting the testimony of

Jane’s Friend, the entite EEOC proceedings were corrupted in violation of Title [X and he

was treated less favorably than Ms. Roe, the administrative complainant. (Id. at 8, n.13.)

Plaintiff has come forward with no case law supporting such a legal theory. See Painter

v. Doe, 3:15cev-369-MOC-DOC, 2016 WL 4644495, at *5 (W.D.N.C. Sept. 6, 2006) (“Read in

11

a light most favorable to plaintiff, he only claims that Defendant Doe was treated more

favorably than he was because she was a female and that certain University Defendants were

biased. Such contentions of gender bias ate not sufficient to advance a claim of gender bias

as those contentions ate merely conclusory. Additionally, plaintiff makes no factual allegations

the University Defendants treated him different than females accused of committing non-

consensual sexual acts and that such disparate treatment is based on gender bias.”) Plaintiff

has not alleged that he was treated differently than female professors similarly accused of

harassment, nor has he presented anything mote than conclusory allegations to support a claim

based on disparate treatment.

It appears that Plaintiff may instead be attempting to allege that the University violated

Title IX by conducting an investigation that led to an erroneous outcome, based on the line

of cases holding that “Title [X bars the imposition of school discipline where gender is a

motivating factor in the decision to discipline.” Biggs v. Edgecombe Cnty Pub. Sch. Bd. of

Educ., 4:16-CV-271-D, 2018 WL 4471742, at *4, (E.D.N.C. September 18, 2018) (quoting

Yusuf v. Vassat College, 35 F.3d 709, 715 (2d Cir. 1994)). “In an erroneous outcome case,

‘the claim is that the plaintiff was innocent and wrongly found to have committed an offense’

on the basis of gender bias.” Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 765 (D. Md. 2015)

(internal citations omitted) (quoting Yusuf, 35 F.3d at 715)). To state a claim for erroneous

outcome discrimination, a plaintiff must allege:

12

(1) a procedurally or otherwise flawed proceeding; (2) that has led to an adverse

and erroneous outcome; and (3) particular circumstances that gender bias was

a motivating factor behind the erroneous finding.

Id. at 766 (D. Md. 2015) Gnternal quotations omitted); see Doe v. Washington & Lee Univ.,

No. 6:14-CV-00052, 2015 WL 4647996, at *9 (W.D. Va. Aug. 5, 2015). ‘To show that gender

bias was a motivating factor underlying the erroneous determination, “a plaintiff must do more

than merely rely on a conclusory allegation of gender discrimination.” Doe v. Salisbury Univ,

123 F. Supp. 3d at 766 (nternal citation omitted.) Rather, ““[slufficiently particularized

allegations of gender discrimination might include, inter alia, statements by members of the -

disciplinary tribunal, statements by pertinent university officials, or patterns of decision-

making that also tend to show the influence of gender.” Id. at 766 (quoting Yusuf, 35 F.3d at

715).

Here, as discussed supra, Plaintiffs claim is premised upon levels of inferences and

speculations and assumptions all drawn from what Plaintiff contends is a witness/ friend who

testified for Ms. Roe. Specifically, Plaintiff alleges that Jane’s Friend, who was Plaintiff's

former teaching assistant, had experienced an unrelated sexual assault, resulting in her being

gender biased against Plaintiff (and all other men) in claims of sexual harassment. However,

a bias in an alleged victim or witness testifying at a heating is not equivalent to decision makers

having the same view, and is far from alleging that gender bias was a motivating factor in a

disciplinary decision. Indeed, it is clear from the allegations that the Administrative Reviewer

and the SGC Panel knew that Jane’s Friend did not view her interactions with Plaintiff and his

13 □

informal touching as inappropriate at the time they occurted, but that in hindsight she had

changed her views. Plaintiff does not allege any facts or statistics to support a claim that the

Administrative Reviewer or SGC Panel were motivated by gender bias. Alleging that his

former teaching assistant, acting as a witness against him, was biased against men, is

insufficient to state a Title TX violation for gender discrimination.

In addition, to the extent Plaintiff is specifically challenging the existence of a

ptocedurally or otherwise flawed proceeding, Plaintiff admits that he did not appeal the

administrative determinations or othetwise raise the alleged flaws in the available appeals

process. It is not clear how Plaintiff could taise a claim based on procedural flaws in an

administrative ptoceeding when he did not appeal or otherwise obtain a final determination in

that proceeding. The Court also notes that Plaintiffs Response Brief appears to change course

ftom the pleadings, and now frames and defends Claim 1 as if it had brought asserting □□□

Foutteenth Amendment’s protections against substantive due process. In his Response Brief

[Doc. #30], Plaintiff titles his argument in support of this claim, “Defendants committed

substantive due process violations against Plaintiff (a man) when the EOC investigator

concealed Jane’s Friend’s extreme gendet bias (natural suspicion of men’).” Plaintiff likewise

concludes his argutnent maintaining that he “adequately pled substantive due process

violations via Title IX gender discrimination.” (PI. Resp. Br. at 10.) However, as discussed

below, Plaintiff did not allege a substantive due process claim in his Complaint and has failed

to allege facts to support such a claim.

. 14 .

For all of these reasons, Plaintiff has failed to allege an actionable Title IX claim in this

case.

C. 42 U.S.C. § 1983

The Amended Complaint also asserts claims under 42 U.S.C. § 1983 for an alleged

violation of PlaintifPs procedural due process and free speech protections (Claims 2 and 3).

To state a § 1983 claim, a plaintiff must “aver that a person acting under color of state

laws deprived him of a constitutional tight or a right conferred by a law of the United States.”

Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009). Plaintiff names

atms of the state and officials acting in their official capacities as defendants. However, neither

the state nor a state official in their official capacity ate proper patty defendants in a § 1983

suit seeking damages. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Therefore,

to the extent Plaintiffs suit requests damages for a constitutional violation, Plaintiff may not

assett the claim under § 1983. However, “a state official in his or her official capacity, when

sued for injunctive telief, would be a person under § 1983 because official-capacity actions for

prospective relief are not treated as actions against the State.” Wall, 491 U.S. at 71.10. As

such, the only potential § 1983 claims in this case are Plaintiffs claims for prospective relief

based on his alleged Procedural Due Process violation and First Amendment violation,

discussed below.

1. Procedural Due Process

To state a procedural due process claim, a plaintiff must allege that the defendant

15

deprived him of a protected liberty or ptopetty interest without due process of law, which

generally tequites some sort of notice and opportunity to be heard. Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532 (1985). In evaluating a plaintiffs procedural due process claim, a

coutt “must consult the entire panoply of predeprivation and post deprivation process

provided by the state.” Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (citing Zinermon v.

Burch, 494 U.S. 113, 126 (1990)). “[T]o state a claim for failure to provide [procedural] due

prtocess, a plaintiff must have taken advantage of the processes that ate available to him” unless

those processes ate “patently inadequate.” Manion vy. N.C. Med. Bd., 693 F. App’x 178, 181

(4th Cir. 2017). Thus, “no § 1983 procedural due process violation exists when a patty fails

to exhaust both administrative and state court remedies that the government affords to them.”

Rockville Cars, LLC v. City of Rockville, Maryland, 891 F.3d 141, 148-49 (4th Cir. 2018).

“This is so because a due process violation is not complete when the asserted deprivation

occuts; tather it is only complete when the government fails to provide due process.

Accordingly, whete there is a process on the books that appeats to provide due process, the

plaintiff cannot skip that process and use the federal courts as a means to get back what he

wants.” Ashley v. N.L.R.B., 255 F. App’x 707, 710 (4th Cir. 2007).

in the present case, as noted by Defendants, the Board of Governors has exclusive

jurisdiction over faculty employment matters. See N.C. Gen. Stat. § 116-11. The Board had

delegated its jurisdiction to vatious committees, but the Board retains appellate level review.

In addition, further appeal is to North Carolina Superior Court under the Administrative

16

Procedures Act. See N.C. Gen. Stat. § 150B-1(f). Professors may file grievances or challenge

adverse employment actions using this process, with appeal to the Board and ultimately to

state coutt. In the present case, according to the Amended Complaint, Plaintiff failed to

exhaust his available remedies ptiot to commencing this action. (Amended Complaint {J 107,

130.) Plaintiff admits that he did not appeal the SGC determination to the Board or to state

court, nor did he gtieve any other issue, including being stripped of graduate coutses or

temoved from the comprehensive exam committee, before the Faculty Grievance Committee

with appeal to the Board. Plaintiff contends that exhaustion of remedies in not requited when

the remedies available are inadequate and futile, but Plaintiff does not plead any factual content

that would support this contention. Plaintiff alleges in his Amended Complaint that appealing

the decision would have been futile due to the pressute that suttounded the school from

students. However, this alleged pressure on the University does not tise to the level of futility.

Moreover, the appeal process in place provided for an appeal to the state court system, entirely

outside any alleged University pressure, and Plaintiff elected not to take advantage of that

available appeal. Plaintiff also argues that because there were already two arbitrary decisions,

an appeal to the Boatd would have been futile. This is mete prediction, and “futility cannot be

established by the plaintiffs’ prediction or anticipation that the University would again rule

adversely to the plaintiffs’ interests.” Frazier v. N.C. Cent. Univ., 244 N.C. App. 37, 52-53,

779 S.E.2d 515, 526 (2015) Gnternal quotations and modifications omitted). The appeals

process specifically allows an avenue to raise and correct ettors by the lower tribunal, and the

17

fact that the lower decisions were alleged to be erroneous does not render potential appeals

futile. In addition, as noted above, even if the Board of Governors ruled against Plaintiff, the

available appeal options included appeal beyond the Board to the state courts, which Plaintiff

elected not to putsue. As alleged in the Complaint, multiple administrative and judicial

ptocedutes were in place to guatd against an improper determination or unnecessary delay,

Plaintiff chose not to appeal, and therefore Plaintiff has failed as a matter of law to plead a

viable procedural due process violation.

Additionally, the Court notes that in his briefing, Plaintiff attempts to taise a

substantive due process violation, contending that substantive due process claims ate not

subject to the same exhaustion of administrative remedies requitements as procedural due

process claims. See Good Hope Hosp., Inc. v. N.C. Dep’t of Health & Human Setvs., 174

N.C. App. 266, 272, 620 S.E.2d 873, 879 (2005). However, these substantive due process

claims were not raised in Plaintiffs amended complaint. Lilly v. Carter, No. 1:16CV400, 2017

WL 3017704, at *1 n.1 (M.D.N.C. July 14, 2017) (disregarding new claims in plaintiffs

response brief because a brief is not a pleading under Rule 7(a)). Additionally, this Court does

not see any pleaded facts to tise to the level of a plausible inference of “egregious, arbitrary

governmental conduct” that “shocks the conscience” as substantive due process claims

requite. Young v. City of Mount Rainier, 238 F.3d 567, 574 (4th Cir. 2001); Painter v. Doe,

2016 WL 4644495 at *4; Manion, 693 F. App’x at 181 (“To establish a substantive due process

violation, Manion must demonstrate that Defendants’ conduct was so egtegious,

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outtageous, that it may fairly be said to shock the contemporaty conscience.” (internal

quotation omitted).

- 2. Free Speech Claim

Plaintiff alleges in his Third Claim that Defendants, each acting in their official

capacities, “did deliberately make [Plaintiffs] working conditions intolerable and thereby force

him to resign and not renew his contract by punishing and reprimanding him far beyond the

scope of the EOC and SGC opinions.” (Amended Complaint 7196.) Plaintiff maintains that

“as of June 30, 2018 [he] had been constructively discharged and resigned only as a matter of

coutse” (id. §J197) and that his exercise of his First Amendment constitutional right to ftee

speech to ptofess his innocence was a motivating grounds-for the Defendants’ actions to

consttuctively discharge him (id. §f§[197-203).

To the extent Plaintiff is asserting a First Amendment claim, the Complaint is unclear

as to the basis for the alleged violation of Plaintiffs free speech rights. Courts have generally

held that to allege a free speech claim, the plaintiff must allege that the “defendant’s adverse

action was substantially motivated as a response to the plaintiffs exercise of constitutionally

protected conduct.” Worrell v. Henry, 219 F.3d 1197 (0th Cir. 2000). Here, Plaintiff alleges

that he continued to deny the allegations of sexual harassment. Plaintiff also alleges that he

was not allowed to talk to prospective students, was not allowed to teach graduate level

courses, and was removed from the exam committee. However, Plaintiff alleges no facts that

establish a link between his speech of denying the allegations and the adverse actions. There

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is simply no plausible allegation that Defendants retaliated against Plaintiff based on Plaintiffs

continued proclamations of innocence.

Moteover, Plaintiffs allegations do not plausibly allege that a constructive discharge

occutted. In the context of the ADA, the Fourth Circuit has said, “To prove constructive

discharge, a plaintiff must at the outset show that his employer deliberately made his working

conditions intolerable in an effort to induce him to quit. Plaintiff must therefore demonstrate:

(1) that the employet’s actions were deliberate, and (2) that working conditions were

intolerable.” Heiko v. Colombo Sav. Bank, 434 F.3d 249, 262 (4th Cir. 2006) (internal citations

omitted.) Here Plaintiff was removed of teaching and committee privileges in 2016 and early

2017 and resigned in 2018. This does not lead to a plausible inference that the conditions were

intolerable or that Defendants acted in an effort to induce him to quit.

In conclusion, because there are not facts pled to lead to a reasonable inference of an

initial or ongoing First Amendment violation, Defendant’s Motion to Dismiss should be

granted as to the First Amendment claim in Claim 3.

3. Plaintiff's Remaining State Law Clatms

Plaintiffs Amended Complaint also sets out vatious state law claims, including

defamation and breach of confidentiality, negligence, breach of contract, and state

constitutional claims. Plaintiff also seeks removal of information from his personnel file under

state law. Defendants assert vatious state law defenses to these claims. Given the

determination that Plaintiff has failed to state a claim for a federal statutory or constitutional

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violation, there is no reason for this Court to undertake analysis of the state law clatms and

defenses. Here, the state-law based causes of action are best resolved in state court since no

federal law claims remain. Therefore, upon dismissal of the federal claims, the Court should

decline to exercise supplemental jurisdiction over the remaining state law claims under 28

U.S.C. § 1367(c)3). Given that this case was removed from state court, the case should be

remanded to state court with respect to the remaining state claims.

Finally, the Court notes that Plaintiff previously filed a Consent Motion for Leave to

file a brief in excess of the page limitation. The Court has considered the Response Brief as

filed, and this Motion will therefore be granted.

I. CONCLUSION

IT IS ORDERED that Plaintiffs Motion for Leave [Doc. #29] is GRANTED, and

the Court has considered the Response Brief as filed.

3 The Court notes that Plaintiff asserts in the Complaint that his claims are not brought as claims for judicial

teview of an administrative decision, but that “if this Court finds it necessary to so construe” the claims as

petitions for judicial review under N.C. Gen. Stat. § 150B-45(a), then for those claims Plaintiff “brings said

claim(s) as Petitions for Judicial Review” either timely under § 150B-45(a) or as untimely claims with good cause

under § 150B-45(b). (Amended Complaint ] 10.ii.) As discussed above, this review was available to Plaintiff

but was not previously exhausted. To the extent he now seeks judicial review of an administrative determination

under North Carolina statutory provisions, those claims are best addressed by the state court.

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IT IS RECOMMENDED that the Defendants’ Motion to Dismiss [Doc. #24] be

granted as to Plaintiffs’ federal ‘Title [IX and § 1983 claims (Claims 1, 2, and 3), and that the

remaining state law claims be remanded to state coutt.

This, the 30 day of September, 2019.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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