Buchanan v. Alexander (284 F. Supp. 3d 792, 2018)

JUDGE SHELLY D. DICK, UNITED STATES DISTRICT COURT

This matter is before the Court on the cross Motions for Summary Judgment by Defendants, F. King Alexander, Damon Andrew, A.G. Monaco, and Gaston Reinoso ("Defendants") and Plaintiff, Teresa Buchanan ("Plaintiff"). The parties have filed Oppositions and Replies to the cross-motions. On September 25, 2017, the Court held Oral Argument on limited issues raised in the Parties' motions, and the Court allowed the Parties to submit post-hearing memoranda. The Court has considered all of the evidence presented, the arguments of counsel, and the law as applied to the undisputed facts of this case. For the following reasons, the Court finds that summary judgment should be granted in favor of the Defendants.

I. FACTUAL BACKGROUND

This lawsuit arises out of the termination of Plaintiff's position of tenured professor by the Board of Supervisors ("the Board") of Louisiana State University and Agricultural and Mechanical College ("LSU"). The Defendants are: F. King Alexander ("Alexander"), President and Chancellor of LSU; Damon Andrew ("Dean Andrew"), Dean of the College of Human Sciences and Education at LSU; A.G. Monaco ("Monaco"), the Vice Chancellor of the Office of Human Resource Management at LSU; and Gaston Reinoso ("Reinoso"), the Director of the Office of Human Resource Management and Executive Director of Equal Employment Opportunities at LSU.

Plaintiff joined the faculty of LSU in 1995 and was promoted to Associate Professor with tenure in 2001. Plaintiff created LSU's "Early Childhood Program," a teacher education program for pre-school through third-grade instruction known as the "PK-3" program. Plaintiff is widely published in top academic journals and claims she had demonstrated significant success in securing funding for both her research and early childhood initiatives at LSU. Prior to the inception of the underlying conduct at issue, Plaintiff was recommended for a promotion to Full Professor following a review process that included the approvals of a Tenure and Promotion Committee, the Director of the School of Education, and the Dean of the College of Human Sciences and Education, Defendant Andrew. However, Dean Andrew later rescinded this recommendation.

In mid-November 2013, Ed Cancienne ("Cancienne"), Superintendent of the Iberville Parish Schools District, complained about Plaintiff's "professionalism and her behavior" during her visits to schools in his district while she was overseeing the PK-3 program. Cancienne was reportedly very upset because he heard that Plaintiff had been condescending to the teachers during her site visits with LSU student teachers and their mentor teachers. Plaintiff claims that, in response to this complaint, she attempted to "smooth Cancienne's ruffled feathers" by an email on that same day wherein she apologized for any offense and affirmed that his Parish was "full of excellent teachers and very bright students." Despite this apology, Plaintiff contends Cancienne called her personal cell phone and demanded that she come to his office and discuss the matter "just the two of us." Plaintiff admits she had no desire to meet with Cancienne alone as she had previously reported to Associate Dean Jennifer Curry ("Curry") that Cancienne had flirted with her and she thought him "creepy." Plaintiff maintains that Curry and another female LSU faculty member shared this view of Cancienne.

After Cancienne and Plaintiff spoke on the phone about this incident, Cancienne called Curry to complain that he had been advised that, while Plaintiff was at an Iberville school to assess a PK-3 program student teacher, Plaintiff referred to Cancienne as "crazy", "talked awful about our schools," and used the word "pussy three times." In fact, Plaintiff claims Cancienne advised Curry that if Plaintiff returned to Iberville schools, he would "have her arrested." While Cancienne clearly objected to Plaintiff's use of the term "pussy," he claimed that he did not believe it was used in a sexual context or to engage in sexual harassment, but was used as part of Plaintiff's instruction to student teachers regarding coping with parents who may use different vocabularies. Plaintiff claims that LSU investigators never inquired into the nature of Cancienne's complaints and only assumed, without supporting evidence, that Plaintiff's use of the word "pussy" was slang for female genitalia. Further, Plaintiff contends that no one at LSU inquired into the actual nature of Cancienne's concerns, which she claims were primarily based on Plaintiff's criticism of his school and teachers and not related to any kind of sexual harassment.

Student complaints also formed the basis of the investigation into Plaintiff's conduct. Curry testified that two of Plaintiff's students requested a meeting to discuss their complaints about Plaintiff's classroom behavior. Student 1 claimed she was offended by Plaintiff's comments about Student 1's sexual relationship with her fiancé. Student 1 stated that she was humiliated by Plaintiff's references to her sexual relationship in front of her classmates. According to Student 1:

Dr. Buchanan had offered them condoms, had told them it was unacceptable to become pregnant. And that if you chose to become a mother, that your grades would suffer for that. She told them ... enjoy the sex while the sex is-good. If you're dating-if you're dating, make sure the sex is good, something along those lines.

Student 1 was also particularly offended when, after having advised Plaintiff that her fiancé was very supportive, Plaintiff allegedly responded, "yeah, he's supportive now while the sex is good, but just wait until you're married five years." Curry testified that Student 1 stated: "I don't know who she is to make these assumptions about me, and to say it in front of a room full of people."

Student 1 also reported to Curry that Plaintiff had recorded a student (Student 2) crying during an assessment team meeting and played the recording back for the student. Student 2 met with Curry and complained that Plaintiff had intimidated and demeaned her by video recording this incident during a team assessment meeting. Regarding this incident, Dr. Curry testified:

... during her assessment team meeting, [the student] began to cry. She said that Dr. Buchanan was yelling at her. And that when she started to cry, Dr. Buchanan got out her cell phone and did not ask her, but started to record her crying and then played it back for her, she said, look at yourself, look at yourself, you need to check yourself in somewhere and get help, get a break.

Curry further testified that Student 2 reported that this meeting was "mortifying," and that:

Terry [Plaintiff] was extremely aggressive during this assessment team meeting. She said every time she tried to talk, Terry would say, shut up, you're not listening, be quiet, be quiet, like screaming at her, very aggressive. She said it was more than intimidating. Like she felt attacked, fearful.

Plaintiff claims that no administrator met with her to discuss these allegations, and they never disclosed to her these student complaints. However, Plaintiff does not deny that these incidents took place. Plaintiff acknowledges that the administration obtained a written complaint in the winter of 2012 purporting to represent the views of Plaintiff's "Junior PK-3 Cohort" complaining that Plaintiff made several offensive comments, such as: (1) stating that "a woman is thought to be a dike if she wears brown pants"; (2) "it was a choice to be in the program and it was not the fault or problem of the professors if any of us chose to be mommies or wives and not to expect to get an A in the class"; and (3) that Plaintiff used "extreme profanity on a regular basis." Plaintiff contends "[i]t was never established the letter actually came from a 'cohort' and was not just a random complaint from a disgruntled student." Further, Plaintiff contends that there is no evidence that this student or cohort was speaking on behalf of anyone other than him/herself.

Curry reported the student complaints to Dean Andrew who subsequently met with Dr. Earl Cheek ("Dr. Cheek"), Director of the College of Education, regarding same. Curry testified that Dr. Cheek advised that between ten and twelve students had come to his office and reported similar complaints about Plaintiff's behavior and her "talking about sex." Dr. Cheek further reported that local elementary school administrators had requested that Plaintiff not mentor students on their campuses. According to Curry, Dr. Cheek claimed he had relayed these complaints to Dean Lindsay (who preceded Dean Andrew) and to Human Resources but was advised nothing could be done because Plaintiff was tenured.

The Investigation

Dean Andrew instructed Curry to gather all information regarding prior complaints, and, while in the process of doing this, Curry was contacted by Cancienne, who advised that Plaintiff was no longer authorized to be on any Iberville Parish school campus. After gathering additional evidence, Curry and Dean Andrew sought help from Human Resources regarding Plaintiff. Human Resources Management administrator Reinoso interviewed witnesses and reported his findings to Dean Andrew, who then recommended to Provost Bell the appointment of a Policy Statement-104 ("PS-104") Faculty Senate Grievance Committee ("the faculty committee").

The PS-104 committee conducted a 12 hour hearing during which several witnesses testified about Plaintiff's classroom behavior, including Plaintiff's friend Karen Donnelly ("Donnelly") who is an adjunct instructor in the PK-3 program. Donnelly testified that she had reported her concerns to Dr. Cheek about Plaintiff's behavior in the Zachary Community School System because Plaintiff's behavior was "threatening our program, and Zachary is our best placement." Donnelly also confirmed that she observed Plaintiff use profanity in the classroom and heard the remarks about which students had complained. Donnelly also testified that she knew of complaints from four elementary schools that would no longer allow Plaintiff to mentor student teachers; Donnelly testified to knowledge of complaints about Plaintiff's behavior from Zachary schools, the LSU Lab School, Port Allen Elementary School, and Iberville Parish Schools.

Donnelly confirmed that Reinoso accurately reported that Plaintiff typically makes comments about sex because "that is how she is." When asked what was meant by the comment that Plaintiff had "no self-awareness of what she says," Donnelly responded: "I'm not sure that was my exact word, but it's like when I said she doesn't have a filter. She just doesn't realize what sometimes she says, and how it sounds. She doesn't mean it the way, you know, it sounds, sometimes." Donnelly also confirmed that she was present when Plaintiff spoke to students about condoms to avoid pregnancy and when Plaintiff advised a student in an assessment meeting about the quality of sex in a relationship. Donnelly testified that she did not believe Plaintiff's behavior was worse than it had always been but that "girls are more vocal nowadays."

On December 20, 2013, Plaintiff was informed by Dean Andrew that she was being removed from the classroom for the Spring 2014 semester while multiple issues were investigated by the Human Resources Department. On January 15, 2014, Plaintiff met with LSU Human Resource Management administrators, including Reinoso, to discuss the allegations of complaints by students and school administrators. During the investigation, Plaintiff admitted to using profanity and language of a sexual nature which she claimed supported her "overall pedagogical strategy when teaching at LSU." Plaintiff agreed that, while not a direct quote, she used such language to "get the attention of students" and "loosen them up."

On May 26, 2014, Plaintiff received a memorandum from Reinoso finding her "actions and behavior" to be "inappropriate, unwelcome, and a direct violation of the University's Policy Statements on Sexual Harassment, PS-73 and PS-95." Reinoso further stated: "Beyond your sexually oriented comments, your reported communication style with students, faculty, and outside administrators has been found to be inappropriate, as you often use profanity in your communication." This memorandum led to a June 12, 2014 meeting between Plaintiff and Dean Andrew. Reinoso testified that his role was to determine if Plaintiff's behavior violated policy, but he could not recommend Plaintiff's termination because he lacked the power to do so.

Plaintiff challenges Reinoso's findings, arguing that his report failed to differentiate general allegations against her versus those that constituted harassment. Plaintiff further contends Reinoso's deposition testimony clarified that several allegations against Plaintiff did not support a finding that Plaintiff violated LSU's sexual harassment policy. Plaintiff claims that Reinoso's deposition testimony confirms that only the following allegations supported his finding that she violated the sexual harassment policy: (1) Plaintiff's remark to a student about birth control and condoms; (2) Plaintiff's remark to a student that her fiancé was only supportive now because "the sex is good"; (3) the use of profanity in certain contexts; and (4) the allegation that Plaintiff referenced her own sex life in class after she went through a divorce. Plaintiff contends these allegations do not meet the standard of severe, pervasive, or objectively offensive such that she should have been terminated.

Plaintiff claims she was not provided with Reinoso's report, which was endorsed by Monaco and then discussed amongst Reinoso, Monaco, and Dean Andrew, but was only given a shorter, condensed memorandum of findings that did not detail specific allegations against her or identify witnesses. As a result of Reinoso's report, Dean Andrew chose to pursue disciplinary proceedings against Plaintiff and requested that Plaintiff meet with him on June 12, 2014 to discuss the report. During this meeting, Plaintiff claims Dean Andrew provided her a one-page list of the policies she was accused of violating and asked that she respond. Dean Andrew later wrote that Plaintiff "admitted to using profanity and language of a sexual nature, claiming it supported [her] overall pedagogical strategy when teaching at LSU," and that Plaintiff stated something to the effect that such language was used to "get the attention of students" and "loosen them up."

In reaction to Plaintiff's response, on June 17, 2014, Dean Andrew advised Plaintiff, in writing, as follows:

I find this explanation to be unacceptable, and I do not condone any practices where sexual language and profanity are used when educating students, particularly those who are being educated to serve as PK-3 professionals. As a PK-3 faculty member, you are expected to set a good example for your students in the profession, and receiving bans from multiple school districts as a result of your inappropriate behavior does little to support legitimacy in the classroom.

Andrew's correspondence further advised Plaintiff that he was considering pursuing dismissal "for cause" proceedings under LSU policy PS-104.

Plaintiff contends she responded to Dean Andrew on July 1, 2014, advising that she had to contend with "vague and indefinite charges," and that, "[b]efore listening to the context or intention underlying my actions," Dean Andrew at the Human Resources Management team had drawn unfair conclusions that denied her "due process" and resulted in her loss of a promotion. Plaintiff also questioned the reliability of the report findings which she claims "centered on the complaints of a few disgruntled students and answers to leading questions of others, entirely discounting my explanation of the events."

Despite her response, Plaintiff claims she was informed of Dean Andrews' July 14, 2014 recommendation to Provost Stuart Bell that she be dismissed for cause from LSU ten days later on July 24, 2014. On July 30, 2014, Provost Bell requested a PS-104 proceeding.

Plaintiff alleges she wrote to Provost Bell on August 3, 2014 to reiterate due process concerns and to explain how the complained-of speech was part of her pedagogical strategy:

"[Profanity] is part of the common vernacular even among very young children today, and teacher-education students need to be aware that they will be confronted with that language and professionally decide how they will respond. I have never had a student tell me that it was offensive or that they were uncomfortable with my language."

Plaintiff further claims that she:

informed Bell that she utilizes humor to help student teachers recognize their "own feelings regarding dress and sexuality" to prepare them for their future interactions with "children from family backgrounds that are different from their own" and their responsibility "for establishing and maintaining effective and reciprocal relationships with all families."

Subsequently, Provost Bell impaneled a faculty committee to conduct an evidentiary hearing to determine whether Plaintiff had violated LSU's policies and/or federal law. Plaintiff acknowledges she was notified of her right, and did in fact exercise her right, to object to any individuals nominated to serve on this committee. Plaintiff also had notice of two pre-hearing meetings and participated in these meetings with the aid of her legal counsel. On March 9, 2015, the committee conducted a twelve-hour hearing during which the committee heard testimony regarding Plaintiff's conduct as described above herein. Plaintiff was given an opportunity to address the committee and was allowed to submit exhibits and call witnesses; indeed, all of the witnesses on Plaintiff's witness list testified before the committee except for one released by Plaintiff.

Procedural Due Process

Plaintiff contends committee members were not provided with materials or training on how to conduct the hearing or how to interpret the sexual harassment standards set forth in PS-73 and PS-95. Plaintiff notes that the committee chair, William Stickle, testified that he understood the sexual harassment standard to be one of "offensiveness" and that sexual harassment is "in the eye of the beholder." Further, Plaintiff alleges that neither Cancienne nor any of the students who allegedly lodged complaints against Plaintiff testified at the hearing. Rather, Curry and Dean Andrew presented "second and third-hand information they had gathered." Plaintiff also claims she did not receive a copy of the Human Resources Management report until just prior to the hearing.

The Faculty Committee Findings & Recommendation

On March 20, 2015, although the committee found insufficient findings to establish an ADA violation, the written findings of the faculty committee concluded that Plaintiff's conduct violated PS-73 and PS-95 "through her use of profanity, poorly worded jokes, and sometimes sexually explicit 'jokes'." The committee further found that Plaintiff's conduct created a "hostile learning environment." Despite these findings, the committee did not recommend dismissal but instead recommended a censure and agreement from Plaintiff that she would modify her teaching methodology to correct the offensive behavior. Further, the committee criticized Plaintiff's supervisors for failing to offer her "counseling before HRM engagement" or "re-training prior to implementing PS-104 proceedings." The committee also denounced the "closed nature of the HRM investigation" that "did not offer Dr. Buchanan an opportunity to resolve charges once specifics of charges became known."

Notwithstanding the committee's recommendation, on April 2, 2015, President/Chancellor Alexander notified Plaintiff he intended to recommend her dismissal for cause and for violations of LSU's policies and violation of the ADA. Plaintiff claims Alexander was obligated under PS-104 to "make such a recommendation based on the recommendation of the Committee of the Faculty and the evidence presented in the hearing." However, the same document also states: "The Chancellor also has the option to return the case to the Committee of the Faculty for further review or to take an alternate action. " Nevertheless, Plaintiff contends Alexander testified that he never reviewed the hearing transcript, did not see any exhibits or evidence presented, and did not know which witnesses testified. Alexander testified that he did read the report of the faculty committee and that he "listened to my staff and the recommendations they made. And those that were involved throughout the hearing as well." Alexander further testified that his decision was based on his discussions with the Provost and legal staff. Plaintiff also contends that, despite the fact that Reinoso's report confirmed that Cancienne's complaint had nothing to do with sexual harassment, Alexander testified that his recommendation was largely based on Cancienne's complaint, and he "mistakenly believed the case was about more than just profanity, poorly worded jokes, or occasionally sexually explicit jokes."

Plaintiff appealed Alexander's initial recommendation and requested an opportunity to address the Board. Plaintiff was allowed to address the Board; however, Alexander's recommendation remained unchanged. Prior to the Board meeting, Plaintiff communicated with Board members via email and attached her supporting documentation.

Plaintiff has acknowledged that LSU Policy PS-73 defines sexual harassment as:

speech and/or conduct of a sexually discriminatory nature, which was neither welcomed nor encouraged, which would be so offensive to a reasonable person as to create an abusive working or learning environment and/or impair his/her performance on the job or in the classroom.

Plaintiff further acknowledged that LSU's policy on sexual harassment of students, PS-95 defines sexual harassment as follows:

unwelcome verbal, visual, or physical behavior of a sexual nature." It includes quid pro quo harassment and hostile environment harassment, which "has the purpose or effect of unreasonably interfering with an individual's academic, work, team or organization performance or creating an intimidating, hostile or offensive working environment.

Plaintiff also acknowledged that PS-95 describes examples of hostile work environment, including "unwelcome touching or suggestive comments, offensive language or display of sexually oriented materials, obscene gestures, and similar sexually oriented behavior of an intimidating or demeaning nature." However, LSU's policies are much more specific than what Plaintiff has acknowledged. Indeed, LSU expressly acknowledges that the policies are "not intended to infringe upon constitutionally guaranteed rights nor upon academic freedom." The policies also include definitions that expound upon what conduct is deemed violative.

Nevertheless, from Plaintiff's selective reference to the policies, she argues that LSU had begun interpreting these policies to mirror what the U.S. Departments of Education and Justice have called "a blueprint for colleges and universities" which defines sexual harassment broadly; however, neither LSU policy nor the "blueprint" implements the standards of Title VII which require actionable sexual harassment to be severe, pervasive, and objectively offensive. Plaintiff also claims that the Board was not provided with the hearing transcript and exhibits but was instead only given a few items selected by Monaco, including a legal memorandum addressing the constitutionality of LSU's anti-sexual harassment policy.

On June 19, 2015, Plaintiff was dismissed by the Board. Plaintiff contends that, in response to her termination, the LSU Faculty Senate adopted a resolution to censure Alexander, Dean Andrew, and Provost Bell, which stated: "great universities have in place three significant measures to ensure the continued observance of academic freedom: Tenure; faculty governance; and due process;" and "all three measures have been violated in the case of Associate Professor Teresa Buchanan."

Plaintiff filed this lawsuit asserting claims pursuant to 42 U.S.C. § 1983 for an alleged violation of her right to free speech and academic freedom under the First and Fourteenth Amendments to the United States Constitution. She also alleges a violation of procedural and substantive due process under the Fourteenth Amendment, a facial challenge to the sexual harassment policies implemented by LSU, and she seeks reinstatement, declaratory, and injunctive relief. The parties have filed cross-motions for summary judgment, which are now before the Court.

II. LAW AND ANALYSIS

A. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "When assessing whether a dispute to any material fact exists, we consider all of the evidence in the record but refrain from making credibility determinations or weighing the evidence." A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." If the moving party satisfies its burden, "the non-moving party must show that summary judgment is inappropriate by setting 'forth specific facts showing the existence of a genuine issue concerning every essential component of its case.' " However, the non-moving party's burden "is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence."

Notably, "[a] genuine issue of material fact exists, 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " All reasonable factual inferences are drawn in favor of the nonmoving party. However, "[t]he Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim." "Conclusory allegations unsupported by specific facts ... will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations ... to get to a jury without any "significant probative evidence tending to support the complaint." ' "

B. Eleventh Amendment Sovereign Immunity

Defendants contend that the Eleventh Amendment sovereign immunity bars suits against them in their official capacities because "a suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official's office." Defendants further contend that state officials are not "persons" subject to liability and money damages under 42 U.S.C. § 1983. Plaintiff does not dispute Defendants' assertion but claims that Defendants have been sued in both their individual and official capacities. Thus, Plaintiff can recover money damages from Defendants in their individual capacities. Plaintiff further claims that she seeks only prospective, injunctive relief from the Defendants in their official capacities which does not violate the Eleventh Amendment.

"The Eleventh Amendment to the United States Constitution bars suits in federal court by citizens of a state against their own state or a state agency or department." The State of Louisiana has not waived its sovereign immunity, and the Board of Supervisors, although not named as a Defendant herein, is an arm of the state and is likewise entitled to Eleventh Amendment immunity. However, the Plaintiff is not barred by the Eleventh Amendment from bringing suit, as she has, for prospective, injunctive relief against individual state officials named as defendants in their official capacities. Further, it is "well established" in the Fifth Circuit that "a suit against a state officer in his or her individual capacity for money damages is not a suit against the state for purposes of Eleventh Amendment immunity."

C. Prescription

Defendants Andrew, Reinoso and Monaco contend all claims against them are subject to dismissal because they are time-barred. The Supreme Court has held that the appropriate statute of limitations to be applied in all Section 1983 actions is the forum state's statute of limitations governing personal injury actions. However, the date that a Section 1983 claim accrues is governed by federal law, not state law. Under federal law, the limitations period begins to run when the plaintiff "becomes aware that [she] has suffered an injury or has sufficient information to know that [she] has been injured." Louisiana law provides a one-year liberative prescriptive period for personal injury claims. Accordingly, Plaintiff was required to have filed suit within one year of the date that she became aware that she has suffered injury or had sufficient information to know that she has been injured.

Defendants rely on the decision in van Heerden v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College wherein the court held that a plaintiff could not use the continuing violation theory for alleged acts of First Amendment retaliation. The court held:

As the Fifth Circuit has noted, though, "courts, including this one, are wary to use the continuing violation doctrine to save claims outside the area of Title VII discrimination cases." McGregor v. Louisiana State Univ. Bd. of Sup'rs , 3 F.3d 850, 866 n.27 (5th Cir.1993). The Supreme Court has held that discrete discriminatory acts constitute separate, actionable instances of unlawful discrimination such that the continuing violation theory is inapplicable. Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101 [122 S.Ct. 2061, 153 L.Ed.2d 106] (2002). Further, as the Court held in Rutan v. Republican Party of Illinois , 497 U.S. 62 [110 S.Ct. 2729, 111 L.Ed.2d 52] (1990), the First Amendment provides state employees with an actionable First Amendment retaliation case for "even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights." 497 U.S. at 76, n.8 [110 S.Ct. 2729] (internal quotations and citations omitted). Because Rutan recognizes that instances of retaliation for exercising First Amendment rights are almost always actionable, they almost always constitute discrete acts which do not admit of aggregation for purposes of pressing a continuing violation argument. See, e.g., O'Connor v. City of Newark , 440 F.3d 125 (3d Cir.2006) (disallowing aggregation of discrete retaliatory acts for purposes of statute of limitations when actions related to § 1983 First Amendment retaliation claim). Van Heerden has cited no provision of law to the contrary. Van Heerden cannot combine separate, discrete instances of First Amendment retaliation into a continuing violation for purposes of his § 1983 claims.

Defendant Andrew notes that Plaintiff makes no allegations against him beyond July 14, 2014, the date she alleges that Dean Andrew recommended her dismissal for cause to Provost Bell. Because this action was taken 18 months prior to Plaintiff's filing of this suit on January 20, 2016, Dean Andrew contends all First Amendment claims against him have prescribed. Defendants Reinoso and Monaco make the same arguments regarding Plaintiff's allegations against them as no allegations are made as to Reinoso or Monaco after May 26, 2014 when Reinoso's investigation findings were approved by Monaco, and Monaco concluded that Plaintiff had violated LSU's sexual harassment policies.

The Court agrees that the First Amendment claims brought against Dean Andrew, Reinoso, and Monaco are prescribed. There is no allegation that Monoco, Reinoso, or Dean Andrew actually terminated Plaintiff. Further, Plaintiff's attempt to distinguish van Herdeen is without merit and without any jurisprudential support. The law is clear that she cannot aggregate discrete acts for First Amendment retaliation. Plaintiff's argument that "Defendants' various actions are part of a single course of conduct that applied an unconstitutional sexual harassment standard and culminated in" her termination is a clear attempt to apply the continuing violation theory to her First Amendment retaliation claim. Such an argument is foreclosed under applicable jurisprudence. The First Amendment claims against Dean Andrew, Reinoso, and Monaco are dismissed with prejudice.

D. Final Decision-Makers

Defendants also move for summary judgment on the grounds that they were not the final decision-makers who terminated Plaintiff's employment. Defendants note that only the Board is authorized to terminate employees, and Defendants maintain that, since none of them actually terminated Plaintiff, her claims against the Defendants individually must be dismissed. In support of this argument, Defendants rely on the Fifth Circuit's decision in Culbertson v. Lykos , where the court held that, at the time, "[i]t was unsettled...whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983." On the other hand, Plaintiff points out that the Culbertson court also stated, referring to a prior similar case: "We did not necessarily hold that there was no individual liability simply because the board made the decision." Ultimately, if the recommendations by the Defendants constitute the reason that the Board terminated Plaintiff, then individual liability could attach.

The decision in Powers v. Northside Independent School District is applicable on this issue. In Powers , a terminated school principal and assistant principal sued the school district for alleged Section 1983 free speech violations under federal and Texas constitutions. Specifically, these plaintiffs alleged that Superintendent Woods " 'used his influence as superintendent' to effect their terminations." After a series of events which included complaints being filed against the plaintiffs relating to their administration of testing, plaintiffs' suspensions for suspected misconduct, and plaintiffs' filing of grievances to contest their suspensions and allege retaliation, Woods recommended to the Board of Trustees that the plaintiffs be terminated. The Board of Trustees followed this recommendation and terminated the plaintiffs' employment. The plaintiffs alleged in their complaint that Woods "used his authority ... as superintendent to create a bogus case for termination against Plaintiffs and, in conjunction with his influence over the Board of Trustees, effected the termination of Plaintiffs' employment by Board action."

Woods challenged the sufficiency of these allegations and argued that such allegations were not actionable because they did not constitute "adverse employment actions" under Section 1983. Essentially, Woods argued that the plaintiffs "failed to allege that [he] caused their termination." In reaching its determination on this issue, the court then reviewed Fifth Circuit decisions in two cases relied upon by the Parties in the present case.

Defendants cite Beattie v. Madison County School District , 254 F.3d 595 (5th Cir.2001) (en banc). In Beattie , the Fifth Circuit considered the individual liability of Acton, a school principal, and Jones, a school superintendent, who allegedly retaliated against Beattie for exercising her right to free speech by recommending her termination to the school board. 254 F.3d at 604-05. In its discussion affirming summary judgment in favor of Acton and Jones, the Beattie court stated Acton and Jones "did not fire Beattie directly, but merely recommended her termination to the board, which made the final decision. If Acton and Jones did not cause the adverse employment action, they cannot be liable under § 1983, no matter how unconstitutional their motives." Id. at 605. Here, because only the Board of Trustees had the power to terminate Plaintiffs under Texas law, Defendants claim Beattie controls, and therefore that Plaintiffs have failed to state a § 1983 claim against Woods. See Mot. Dismiss [# 23] at 10.

The Fifth Circuit, however, recently cast doubt upon Defendants' interpretation of Beattie in Culbertson v. Lykos , 790 F.3d 608 (5th Cir.2015). In Culbertson , two contractors whose company provided breath-alcohol testing services for Harris County brought a § 1983 claim against the Harris County assistant district attorney (ADA) in her individual capacity, alleging First Amendment retaliatory termination. Id. at 614, 625. The contractors alleged after they spoke out regarding the unreliability of certain breath-alcohol testing equipment, the ADA pressured the Harris County Commissioners Court, the relevant decision-making body, to terminate their contract with Harris County. See id. at 621. Considering whether the contractors stated a claim against the ADA in her individual capacity, the Culbertson court discussed Beattie in detail, noting that "some later decisions ... have interpreted Beattie to hold that only final decision-makers may be held liable for First Amendment retaliation under § 1983." Id. at 626 (internal quotation omitted).

The Culbertson court reviewed the facts of Beattie , noting in particular that the board "fired Beattie for permissible, constitutional motives independently of Acton's and Jones's recommendation" and that those permissible motives were a "superseding cause" which "shield[ed] [Acton and Jones] from liability." Id. at 625 (quoting Beattie ). In short, Acton and Jones's unproven retaliatory motives were "displaced by other motives." Id.

...

The Culbertson court then pointed to Jett v. Dallas Independent School District , 798 F.2d 748, 758 (5th Cir.1986), a pre- Beattie decision which required only that a plaintiff show "an affirmative causal link" between the individual actor's conduct and the adverse employment action taken by the decision maker for individual liability to attach. Culbertson , 790 F.3d at 626 (quoting Jett, 798 F.2d at 758 ). The Jett court explicitly rejected the individual defendant's "contention that the judgment as to him must be reversed because ... he had only recommending authority." Jett , 798 F.2d at 758. Acknowledging the "tension" between Jett and the later decisions interpreting Beattie to hold that only final decision makers may be held liable for First Amendment retaliation under § 1983, the Culbertson court concluded:

It can at least be said that before [the ADA] could be individually liable despite not being the final decision-maker, it must be shown that her recommendation was made in retaliation for constitutionally protected speech and was the reason the adverse employment decision was made by the final decision-maker. A "superseding cause" would shield [the ADA] from liability.

Culbertson , 790 F.3d at 626.

Following Culbertson , the Court finds as Plaintiffs have alleged Woods "effected the termination of [their] employment by Board action," they have adequately stated a § 1983 claim for First Amendment retaliation against Woods.

While the Powers court agreed that the plaintiffs had adequately pled a First Amendment retaliation claim against Woods, the court next addressed the asserted defense of qualified immunity and held as follows:

Defendants argue Plaintiffs' § 1983 claim against Woods must nevertheless be dismissed because Woods is entitled to qualified immunity for his conduct. The Court agrees. Qualified immunity requires a court to "determine whether the plaintiff has suffered a violation of his constitutional rights and, if so, whether a reasonable official should have known that he was violating the plaintiff's constitutional rights." Culbertson , 790 F.3d at 627 (quoting Murray v. Earle , 405 F.3d 278, 285 (5th Cir. 2005) ). Confronted with the question whether the ADA was entitled to qualified immunity despite its holding the plaintiffs stated a claim against her, the Culbertson court found as follows:

We have already noted ambiguity as to the liability of a person for recommending an adverse employment decision.... It was unsettled at the time of [the ADA's] actions, and remains so now, whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983. Cf. Beattie , 254 F.3d at 595, 604-05 ; Jett , 798 F.2d at 758.... In fact, some clear statements in the caselaw have held there can be no liability.

We conclude the claims against [the ADA] should be dismissed based on qualified immunity.

Id. (additional citations omitted). In light of the foregoing analysis and the Culbertson court's statement the law in this area remains unsettled, the Court finds Plaintiffs' claims against Woods should be dismissed based on qualified immunity.

The district court for the Southern District of Texas recently interpreted and applied Culbertson in Sims v. Covington. The court held that the plaintiff's claim against a supervisor who did not make the final decision to terminate him was foreclosed pursuant to Culbertson :

The threshold and fundamental problem is recent, clear Fifth Circuit precedent that forecloses Sims's claim. In Culbertson v. Lykos , 790 F.3d 608 (5th Cir. 2015), the court held that, as of 2015, "[i]t was unsettled...whether someone who is not a final decision-maker and makes a recommendation that leads to the plaintiff being harmed can be liable for retaliation under Section 1983."

Id. at 627. Because when Covington allegedly acted, "the law was not clearly established that a mere recommendation of termination to a higher authority who makes the final decision causes an adverse employment action" for purposes of First Amendment retaliation, qualified immunity precludes the relief Sims seeks. See id.

Sims cannot distinguish Culbertson. The plaintiff, Amanda Culbertson, like Sims, alleged that she was fired for asserting her First Amendment rights. Id. at 614-16. Culbertson, like Sims, sought damages under § 1983 from someone who recommended that she be fired but who did not have the authority to fire her. Id. The Fifth Circuit held that qualified immunity barred Culbertson's First Amendment claim against the nondecisionmaker. Id. at 627. Sims attempts to rely on language from Culbertson analyzing the underlying constitutional violation, id. at 625-26, but he ignores the opinion's qualified-immunity holding, id. at 627. (Docket Entry No. 86, Ex. 1 at p. 29). Under Culbertson , Sims's claim must fail.

The analysis and reasoning in Sims is applicable to the present case.

First, the Court notes that Plaintiff in the present case has not alleged in her Complaint that either Reinoso or Monaco caused or effected her termination. Indeed, there is no allegation that either of them even recommended her dismissal. Thus, any claims against Reinoso or Monaco for unlawful termination are dismissed as a matter of law. Plaintiff does allege that Dean Andrew recommended her dismissal to the Provost, and that Chancellor Alexander recommended her dismissal to the Board following the faculty committee hearing. Reading the Complaint in the light most favorable to Plaintiff, the Court finds that Plaintiff has sufficiently alleged that Andrew and Alexander caused her termination. However, the discrete act by Andrew occurred 18 months prior to Plaintiff filing suit and has been dismissed as prescribed. In any event, both Andrew and Alexander are entitled to qualified immunity for Plaintiff's termination as set forth in Culbertson and Powers and for the reasons set forth below.

E. Qualified Immunity

Defendants also move for summary judgment on claims brought against them in their individual capacities on the assertion of the qualified immunity defense. Qualified immunity is addressed as a threshold matter, and its elements require an analysis of the substance of each constitutional claim raised. Qualified immunity protects government officials-from suit under 42 U.S.C. § 1983 and related statutes, including § 1985-performing "discretionary functions" when their actions are reasonable regarding the rights that the official allegedly violated. Essentially, it is a defense available to "all but the plainly incompetent or those who knowingly violate the law." The Fifth Circuit uses a two-part test to evaluate qualified immunity defenses: first, whether the defendant's alleged action constitutes a violation of the plaintiff's constitutional rights, and second, "whether the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question." The Court will address each of Plaintiff's alleged constitutional violations below and determine if the defense of qualified immunity has been satisfied for any of these constitutional claims.

1. First Amendment Speech and Academic Freedom

Under Section 1983, a plaintiff must establish the deprivation of a right secured by the Constitution or laws of the United States committed by a person acting under color of state law. Plaintiff's Section 1983 claim in this case is grounded on the First and Fourteenth Amendments. The First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern. A First Amendment retaliation claim requires proof of the following elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in speaking must outweigh the employer's interest in promoting efficiency in the workplace, and (4) the employee's speech motivated the employer's adverse employment action.

The Supreme Court's decision in Garcetti v. Ceballos , added a threshold layer to this analysis. In Garcetti , the Supreme Court held that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." Thus, this Court must initially determine whether the Plaintiff's speech was pursuant to her official duties. Speech that is required by a plaintiff's job duties or part of her official duties is not protected by the First Amendment. As succinctly stated by the Fifth Circuit in Davis : "Activities undertaken in the course of performing one's job are activities pursuant to official duties and not entitled to First Amendment protection."

Therefore, under Garcetti , the focus is on the role the employee occupied when she communicated rather than the content of the speech. "Even if the speech is of great social importance, it is not protected by the First Amendment so long as it was made pursuant to the worker's official duties." Neither a formal job description, speaking on the subject matter of one's employment, or the fact that a public employee's statements are made internally is dispositive.

"Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment." It consists of "the right of an individual faculty member to teach ... without interference from ... the university administration, or his fellow faculty members."

As the Fifth Circuit has noted, "[w]hile academic freedom is well-recognized, its perimeters are ill-defined and the case law defining it is inconsistent. Its roots have been found in the first amendment insofar as it protects against infringements on a teacher's freedom concerning classroom content and method." "The foregoing suggests ample precedent for considering academic freedom as within the ambit of the First Amendment, while at the same time demonstrating the nebulousness surrounding exactly what activities are protected by the academic freedom guarantee implied in the First Amendment."

The inquiry into whether Plaintiff's speech is entitled to protection under the First Amendment as addressing a matter of public concern is a question of law for the court to decide. The inquiry into whether Plaintiff's interests in speaking outweigh LSU's interests in regulating Plaintiff's speech is a factual determination conducted under the well-known Pickering balancing test. If Plaintiff's interests in the prohibited speech outweigh the College's interests, then Plaintiff's First Amendment rights have been violated. If the First Amendment violation was a substantial or motivating factor in Defendants' disciplinary action against Plaintiff, Defendants may present evidence that they would have disciplined Plaintiff in the absence of his protected conduct. However, if Plaintiff's speech does not involve a matter of public concern, it is unnecessary for the court to scrutinize the reason for the discipline.

"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Speech which can be "fairly considered as relating to any matter of political, social, or other concern to the community" touches upon matters of public concern. Absent unusual circumstances, a public employee's speech dealing with "matters only of personal interest" is not afforded constitutional protection. However, mixed questions of private and public concern, where the employee is speaking both as a citizen as well as an employee, can be protected, such that "if any part of an employee's speech, which contributes to the [disciplinary action], relates to a matter of public concern, the court must conduct a balancing of interests test as set forth in Pickering v. Board of Education. "

The Court finds that Plaintiff's use of profanity and discussions regarding her own sex life and the sex lives of her students in the classroom do not constitute First Amendment protected speech, are not matters of public concern, and are not, as claimed by Plaintiff, part of her overall pedagogical strategy for teaching preschool and elementary education to students as there is no summary judgment evidence to support such a claim. The Court finds support from the Fifth Circuit's decision in J.D. Martin v. Parrish , a case wherein a college teacher brought a Section 1983 action against Midland College alleging that he had been discharged for exercising his First Amendment right to free speech. Martin, an economics professor at Midland, was disciplined after students complained about his constant use of profanity in the classroom. Despite administrative attempts to stop Martin's behavior, he persisted in cursing and ultimately delivered the following "outburst" in class in response to student complaints: "the attitude of the class sucks ... is a bunch of bullshit," "you may think economics is a bunch of bullshit," and "if you don't like the way I teach this God damn course there is the door." Upon notice of this outburst, the Dean instituted actions which culminated in Martin's termination. Martin sued under Section 1983 claiming an alleged deprivation of his First Amendment right of free speech, abridgement of an alleged right of academic freedom, and denials of due process and equal protection. Although Martin won a jury verdict in his favor on his free speech claim, the Fifth Circuit reversed and noted: "Some of the jury interrogatories regarding the free speech issue asked for a balancing of Martin's language between its usefulness to his instruction and its disruptive tendency. Such balancing involves a question of law for the court."

The Fifth Circuit noted that "[t]he 'rights' of the speaker are thus always tempered by a consideration of the rights of the audience and the public purpose served, or disserved, by his speech. Appellant's argument, by ignoring his audience and the lack of any public purpose in his offensive epithets, founders on several fronts." The court held as follows regarding whether Martin's speech was a matter of public concern:

There is no doubt that Martin's epithets did not address a matter of public concern. One student described Martin's June 19, 1984, castigation of the class as an explosion, an unprovoked, extremely offensive, downgrading of the entire class. In highly derogatory and indecent terms, Martin implied that the students were inferior because they were accustomed to taking courses from inferior, part-time instructors at Midland College. The profanity described Martin's attitude toward his students, hardly a matter that, but for this lawsuit, would occasion public discussion. Appellant has not argued that his profanity was for any purpose other than cussing out his students as an expression of frustration with their progress-to "motivate" them-and has thereby impliedly conceded his case under Connick.

The Fifth Circuit further held that, "[r]epeated failure by a member of the educational staff of Midland College to exhibit professionalism degrades his important mission and detracts from the subjects he is trying to teach." The Fifth Circuit noted the trial testimony that Martin's conduct strongly influenced the students in that one student claimed he had "lost interest in economics as a result of Martin's belittling comments," and another student "expressed his reticence to asking questions in class for fear of Martin's ridicule." Ultimately, the court held: "To the extent that Martin's profanity was considered by the college administration to inhibit his effectiveness as a teacher, it need not be tolerated by the college... ." Further, distinguishing jurisprudence on which Martin relied, the Fifth Circuit stated:

However, we hold that the students in Martin's classroom, who paid to be taught and not vilified in indecent terms, are subject to the holding of Pacifica , which, like Cohen , recognizes that surroundings and context are essential, case-by-case determinants of the constitutional protection accorded to indecent language. Martin's language is unprotected under the reasoning of these cases because, taken in context, it constituted a deliberate, superfluous attack on a "captive audience" with no academic purpose or justification.

Although not binding, decisions from other federal appellate courts also support the Court's holding. The Sixth Circuit's decision in Bonnell v. Lorenzo is particularly applicable to this case. The college professor in Bonnell was disciplined for his gratuitous in-class use of the words "pussy," "cunt," and "fuck," which had given rise to a sexual harassment complaint filed by one of the professor's students. Because Bonnell's offensive language was "not germane to the subject matter," the court concluded that he did "not have a constitutional right to use [these terms] in a classroom setting." Specifically, the university had issued a warning to the plaintiff as follows:

Unless germane to discussion of appropriate course materials and thus a constitutionally protected act of academic freedom, your utterance in the classroom of such words as 'fuck,' 'cunt,' and 'pussy' may serve as a reasonable basis for concluding as a matter of law that you are fostering a learning environment hostile to women, a form of sexual harassment. Federal and state law imposes a duty on the College to prevent the sexual harassment of its students and therefore requires that the College discipline you if it finds that you have created a hostile environment.

Despite this warning, the complaints about Bonnell continued. One student complained that his comments were "dehumanizing, degrading, and sexually explicit."

In support of its holding, the Bonnell court relied on and discussed in detail the Fifth Circuit's decision in Martin and held:

Plaintiff may have a constitutional right to use words such as "pussy," "cunt," and "fuck," but he does not have a constitutional right to use them in a classroom setting where they are not germane to the subject matter, in contravention of the College's sexual harassment policy. See id. ; see also FCC v. Pacifica Found. , 438 U.S. 726, 747, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (finding speech that is " 'vulgar,' 'offensive,' and 'shocking' ... is not entitled to absolute constitutional protection under all circumstances"). This is particularly so when one considers the unique context in which the speech is conveyed-a classroom where a college professor is speaking to a captive audience of students, see Martin , 805 F.2d at 586, who cannot "effectively avoid further bombardment of their sensibilities simply by averting their [ears]." Hill [v. Colorado, 530 U.S. 703], 120 S.Ct. [2480] at 2489 [147 L.Ed.2d 597 (2000) ]. Although we do not wish to chill speech in the classroom setting, especially in the unique milieu of a college or university where debate and the clash of viewpoints are encouraged-if not necessary-to spur intellectual growth, it has long been held that despite the sanctity of the First Amendment, speech that is vulgar or profane is not entitled to absolute constitutional protection. See Pacifica , 438 U.S. at 747, 98 S.Ct. 3026.

The Second Circuit's decision in Vega v. Miller is also applicable here. In Vega , a professor terminated by a state college sued college administrators under Section 1983 for violation of his First and Fourteenth Amendment rights. The administrators moved for summary judgment on the basis of qualified immunity. The district court held the administrators were not entitled to qualified immunity, and they appealed. The background facts are as follows:

In the summer of 1994, Vega taught a six-week composition course at the College's Summer Institute, a program designed for pre-freshmen who need remedial courses prior to matriculation. The students were male and female, aged 17 and 18. On July 21, Vega conducted a free-association exercise called "clustering," in which students were invited to select a topic, then call out words related to the topic, and finally group related words together into "clusters." According to Vega, the exercise is intended to help students reduce the use of repetitive words in college-level essays.

The students selected "sex" as the topic for the "clustering" exercise. Vega understood the topic to be "sex and relationships." Vega then invited the students to call out words or phrases related to the topic, and he wrote at least many of their responses on the blackboard. The first words called out were, as Vega described them, "very safe words," such as "marriage," "children," and "wedding ring." As the exercise continued, the words called out included "penis," "vagina," "fellatio," and "cunnilingus." Toward the end of the exercise, with all but one of the students yelling and two standing on chairs, the following words and phrases were called out: "cluster fuck," "slamhole," "bearded clam," "fist fucking," "studded rubbers," "your [sic] so hard," and "eating girls out."

Vega wrote many of the words on the blackboard, but "[a]t no point in the session did Vega seek to curtail the vulgarity of what the students were yelling, or terminate the exercise." None of the students in the class ever complained about this, but it came to the attention of the administrators while investigating another matter.

Vega was confronted about this exercise, and he turned over his lesson plans which included many provocative topics. Vega was advised that the administrators found the exercise inappropriate, and that "it opened the door to bad publicity and possible sexual harassment complaints." Vega was advised that he would not be offered reappointment for the upcoming school year. Vega's contract was officially terminated, and the supporting memorandum explained that Vega's termination was due to his " 'reliance on sex as a theme' and 'use of sexually explicit vocabulary' in the clustering exercise." Subsequently, Vega filed suit.

In considering Vega's First Amendment academic freedom claim, t