United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
Plaintiff Christopher Valencia's multiple opportunities
to consolidate and organize the Complaint, the Court now
begins the task of parsing through the myriad claims. At the
heart of this matter is the brief but tumultuous time
Plaintiff taught in the University of New Mexico's (UNM)
anthropology department. Though he began without incident,
Valencia eventually faced multiple disciplinary actions for
accusations of sexual orientation discrimination, sexual
harassment, and assault. In the end, UNM terminated his
employment contract. Amid the numerous allegations, however,
some colleagues took matters into their own hands. Instead of
allowing institutional processes to play out, they published
incendiary social media posts, pressured students, and shared
information with the press. Meanwhile, flaws in UNM's
internal processes prolonged this matter well beyond what was
reasonable, and without giving Plaintiff a chance to offer a
defense. In this Memorandum Opinion and Order, the Court
takes up three motions to dismiss addressing: the
constitutional violations under §§ 1983 and the
1985(3) conspiracy claims (Doc. 112); the civil conspiracy
claims (Doc. 118); and the defamation and slander per se
claims (Doc. 116). As a result of Plaintiff's conclusory
and deficient pleading, the Court will dismiss most counts
but will allow some of the procedural due process,
defamation, and slander per se claims to proceed.
UNM Board of Regents hired Valencia into the anthropology
department in 2012. (Doc. 83 (Am. Compl.) ¶¶
30-31.) Valencia performed his duties without incident for
three years. (Id. ¶ 35.) On June 15, 2015,
Defendant Les Field, department chair, told Valencia that
some students filed a complaint against him with the Office
of Equal Opportunity (OEO). (Id. ¶ 37.) Despite
Valencia's attempts to collect more information, Field
would not elaborate on the substance of the complaints.
(Id. ¶¶ 37-38.) Valencia heard no more
about the OEO complaint until Field emailed him two months
later. (See Id. ¶¶ 40, 42.) In his email,
Field told Valencia that Defendants Mark Peceny and Julia
Fulghum had requested Valencia's recusal from grading
comprehensive exams for the 2015-16 year because of the OEO
investigation. (Id. ¶ 42.) Field told Valencia
that his recusal from grading was an “action . . . that
is disciplinary in nature without any formalized, written, or
official reason for doing so.” (Id. ¶
44.) Valencia complained to the University's Compliance
Office, protesting that removing him from grading
“constituted an adverse action taken without proper
notification and in the absence of any opportunity to contest
the decision.” (Id. ¶ 47.)
response to Valencia's complaint, the Senior Vice
Provost, Defendant Carol Parker, began an investigation.
(Id. ¶ 48.) She found that Field, Peceny, and
Fulghum recused Valencia from grading to strike a balance
between Valencia's and students' concerns over the
OEO complaints. (Id.) Parker determined that this
“temporary suspension” was allowable under UNM
policy. (Id.) During this time, Valencia remained
suspended despite his inability to defend himself against
unknown complaints and his contrary belief that no UNM policy
justified this action. (Id. ¶¶ 48, 50-52.)
learned about the substance of the complaints in September
2015. (See Id. ¶ 56.) First, the OEO-through
Defendant Laura Lynn Buchs-told Valencia that his student,
Defendant Danielle Kabella, accused him of sexual orientation
discrimination. (Id.) Then the OEO notified Valencia
that Defendant Kayla Ahmed, a former UNM graduate student,
accused him of sexual harassment and gender discrimination.
(Id. ¶ 61-62.) Ultimately, the OEO determined
that both complaints lacked probable cause. (Id.
¶¶ 60, 65.)
time, Valencia suspected that three female professors,
Defendants Ronda Brulotte, Erin Debenport, and Lindsay Smith
had been engaging in a “smear” campaign. (See
Id. ¶ 69.) He noticed that the students lodging
complaints against him were students mentored by Brulotte,
Debenport, or Smith. (Id. ¶ 68.) He repeatedly
told Field that other faculty had informed him about the
three professors' attacks and false allegations, and that
they had coached student complaints. (See Id.
¶¶ 70, 73, 79.)
said that he forwarded Valencia's concerns to the OEO,
but there is no evidence that the OEO did anything in
response. (See Id. ¶¶ 77, 82-83.)
Brulotte, Debenport, and Smith's attacks continued
unabated. (See Id. ¶ 86.) For example, Brulotte
told students that Valencia was under investigation for
“sexual predation.” (Id. ¶ 84.) And
in the presence of students at a local restaurant, Brulotte
and Debenport high-fived each other and proclaimed that they
were “going to take Valencia down.” (Id.
¶ 128.) Consequently, students dropped Valencia as their
advisor, and he was removed from academic committees.
(See Id. ¶ 86.) When later asked why nothing
was being done, Field told Valencia that he had been
instructed “to not address Valencia's request for
relief from the hostile work environment.” (See
Id. ¶ 88.)
into anthropology department and original disciplinary
repeated complaints from Valencia, the OEO launched a
“Departmental Investigation” into discrimination
and sexual harassment in the anthropology department.
(See Id. ¶¶ 89-91.) During the
investigation, the OEO did not give Valencia an opportunity
to respond to adverse claims, or even provide notice of what
those claims were, despite UNM policy requiring notice and an
opportunity to respond. (See Id. ¶¶ 94-95,
98.) The OEO did not allow Valencia to identify favorable
witnesses, despite policies requiring the OEO to do so.
(Id. ¶ 100.) When students did submit
statements on Valencia's behalf, the OEO chose not to
interview them. (Id. ¶¶ 107, 114.) And
despite policy limiting OEO investigations to claims brought
within 90 or 180 days of the alleged conduct absent a finding
of good cause, the OEO took up allegations against Valencia
that were over 12 months old without identifying good cause
to investigate the stale claims. (Id. ¶¶
from the OEO's conduct, the atmosphere surrounding the
investigation was troubling. Students complained that they
were under pressure to support the accusers against Valencia,
and that those who refused were called “anti-feminist,
” dismissed as not understanding the seriousness of the
claims against Valencia, or accused of victim blaming.
(Id. ¶¶ 115-16, 118, 123.) Brulotte,
Smith, and Debenport invited students for meetings to discuss
“the situation in the department.” (Id.
¶ 121.) In those meetings, the three professors shared
confidential information about their interactions with the
OEO, the anthropology department administration, and the
pending investigations. (Id.) Brulotte also posted
on Facebook in a manner viewable by some students, making
clear her opposition to Valencia and claiming that anyone who
did not support her views “was not a feminist.”
(See Id. ¶ 129.) As a result, students who did
not believe the allegations against Valencia hesitated to
come forward for fear of social backlash or retaliation from
Brulotte, Smith, or Debenport. (See Id. ¶¶
nine months, the OEO released its findings in March 2016.
(Id. ¶¶ 103, 133.) The OEO found that most
of the allegations against Valencia lacked corroboration but
found probable cause to believe that Valencia had engaged in
discriminatory conduct based on sexual orientation and gender
identity, and that Valencia subjected students to a
sexually-harassing and hostile academic environment.
(Id. ¶¶ 104-05.) After the OEO's
findings were released, Peceny sent Valencia a notice of
emergency suspension, from which Valencia learned that he was
suspended immediately and indefinitely “[d]ue to the
risk of imminent harm to students stemming from [his]
behavior . . . .” (Id. ¶ 131-32.)
April 2016, Valencia appealed the OEO's findings to the
Office of the President and the Academic Freedom & Tenure
Committee (AFTC). (Id. ¶¶ 134-35.) UNM
President Defendant Robert Frank denied Valencia's
request for a discretionary appeal without any substantive
review, in contravention of UNM policy. (See Id.
¶¶ 136-37.) But the AFTC found that the
anthropology department may have committed procedural error
by relying on the emergency suspension provision, which was
only meant for a “short term condition” as a
stopgap measure to forestall imminent harm. (Id.
¶¶ 138, 140.) Although Valencia protested the
length of the emergency suspension to Peceny and Field,
neither individual responded to Valencia's concern, and
the emergency suspension kept Valencia from the workplace for
two-and-a-half months. (Id. ¶¶ 142- 43.)
Field issued a letter of censure, and Valencia returned to
his normal duties. (Id. ¶¶ 149-50.)
Valencia appealed the letter of censure after receiving
assurances from the University that appealing did not carry
the risk of additional punishment. (See Id. ¶
fury, reopening of investigation, and termination of
the controversy surrounding Valencia, the United States
Department of Justice (DOJ) released a critical report
related to UNM's handling of Title IX cases.
(Id. ¶¶ 144-48.) At the same time,
“a media firestorm broke out over UNM's decision to
return Valencia to his teaching duties.” (Id.
¶ 153.) Brulotte, Smith, and Debenport “met with
local television stations and print media” to share
their views about Valencia's situation. (See Id.
filed a complaint under UNM's Respectful Campus policy,
noting that Brulotte, Smith, and Debenport allowed their
attorneys to disclose confidential information to the media,
that the OEO did nothing to protect him, and that he was now
the target of derogatory and threatening emails.
(Id. ¶ 163.) Neither the University, the OEO,
nor the anthropology department addressed Valencia's
concerns. (Id. ¶ 165.)
the University reopened its investigation into Valencia and
made a broad solicitation for “any students who had any
information related to Valencia participating in the sexual
harassment of students.” (Id. ¶¶
156, 158.) Shortly afterwards, Valencia was again placed on
emergency suspension based on new information the University
received. (Id. ¶ 160.) Defendant Albert Sena, a
UNM maintenance employee, accused Valencia of being involved
in a drunken assault and battery in Spring 2015.
(Id. ¶ 166.) And Defendant Laura Morris, a
former student of Valencia's, accused Valencia of
engaging in inappropriate conduct and of discriminating
against her because of her race. (Id. ¶¶
filed yet another complaint with the OEO, reiterating that
Brulotte, Smith, and Debenport engaged in an unchecked media
campaign against him and noting that his previous complaints
to the anthropology department were fruitless. (Id.
¶¶ 174, 176.) Brulotte even posted a photograph of
Valencia on Facebook with the caption: “I am a sexual
predator.” (Id. ¶ 175.)
August 2016, Peceny, who was handling Valencia's letter
of censure appeal, decided to terminate Valencia's
employment for cause. (Id. ¶¶ 177, 179.)
Valencia appealed Peceny's decision to the Provost,
Defendant Chaouki Abdallah, but he upheld Peceny's
decision. (Id. ¶ 183.) Then in a decision
signed by OEO administrators, Defendants Aaron Jim and
Francie Cordova, found no probable cause to support
Valencia's claims against Brulotte, Smith, and Debenport.
(Id. ¶ 185.) Valencia attempted to appeal his
discharge to the AFTC, but the AFTC would not hear his
appeal. (Id. ¶ 187.)
lawsuit and the present motions to dismiss
Valencia filed this lawsuit implicating various
constitutional provisions through § 1983, § 1985(3)
conspiracy, and Title VII. Plaintiff also alleges
supplemental state claims including breach of contract, state
civil conspiracy, defamation, slander per se, and New Mexico
Human Rights Act abuses. The Court's jurisdiction arises
under 28 U.S.C. §§ 1331 and 1367. In three separate
motions, Defendants ask the Court to dismiss various claims
in Valencia's Amended Complaint.
Legal Standard: Failure to State a Claim
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief,
” Fed.R.Civ.P. 8(a)(2), but it need not include
“detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(emphasis added) (citation omitted). Inadequate pleading
permits district courts to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the Court, taking all well-pled allegations as true,
assesses whether the complaint contains “a plausible
claim for relief.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (citation omitted). The Supreme Court has
been clear that no probability requirement exists, but a
plausibility standard still governs, which
“asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 678
(citation omitted). Thus, courts should dismiss claims when
it is “obvious” that there is no way to prevail
with the available facts. See Brown v. Sherrod, 284
Fed.Appx. 542, 543 (10th Cir. 2008) (citation omitted).
Civil Rights Claims Under §§ 1983 and 1985 (Counts
1983 provides that: “Every person who, under color of
[state law] . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable . . . .” 42 U.S.C. § 1983.
Historically, acting under “color of law” meant
that officer actions needed the backing of state authority.
West v. Atkins, 487 U.S. 42, 49 (1988). The Tenth
Circuit has held that state employment does not automatically
impute state authority on an action; rather, the employee
must act through the state or give the impression that state
authority was behind it. Jojola v. Chavez, 55 F.3d
488, 493 (10th Cir. 1995). Without standalone power, §
1983 acts as the conduit for constitutional violations,
allowing individuals to recover monetary damages from state
officers in their personal capacities. Hafer v.
Melo, 502 U.S. 21, 30 (1991).
state and its agencies, however, are shrouded with Eleventh
Amendment immunity in federal court. Will v. Mich.
Dep't of State Police, 491 U.S. 58, 70-71 (1989).
Yet most individual officers only receive qualified immunity.
Hafer, 502 U.S. at 28. This doctrine recognizes the
“need to protect officials who are required to exercise
their discretion and the related public interest in
encouraging the vigorous exercise of official
authority.” Harlow v. Fitzgerald, 457 U.S.
800, 807 (1982) (quoting Butz v. Economou, 438 U.S.
478, 506 (1978)). To defeat qualified immunity, plaintiffs
must show that an official's actions “violate[d]
clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Id. at 818 (citations omitted) (emphasis added).
This is no easy task. Clearly established means that
“there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight
of authority from other courts must have found the law to be
as the plaintiff maintains.” Currier v. Doran,
242 F.3d 905, 923 (10th Cir. 2001) (quoting Medina v.
City & Cty. of Denver, 960 F.2d 1493, 1498 (10th
Cir. 1992)). That is, the law must be
“indisputable” or “unquestioned.”
Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx.
707, 710 (10th Cir. 2011) (quoting Zweibon v.
Mitchell, 720 F.2d 162, 172-73 (D.C. Cir. 1983)).
Plaintiff alleges violations of the First Amendment, the
Equal Protection Clause under the Fourteenth Amendment, and
both procedural and substantive theories of the Due Process
Clause under the Fourteenth Amendment.
The State has not waived sovereign immunity as it pertains to