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Valencia v. The Board of Regents

United States District Court, D. New Mexico

November 4, 2019

THE BOARD OF REGENTS, University of New Mexico, ROBERT FRANK, in his individual capacity, CHAOUKI ABDALLAH, in his individual capacity, CAROL PARKER, in her individual capacity, MARK PECENY, in his individual capacity, LES FIELD, in his individual capacity, RONDA BRULOTTE, ERIN DEBENPORT, LINDSAY SMITH, FRANCIE CORDOVA, in her individual capacity, LAURA LYNN BUCHS, in her individual capacity, HEATHER COWAN, in her individual capacity, AARON JIM, in his individual capacity, ALEXDANDRA TACEA, KAYLA AHMED, DANIELLE KABELLA, JOE SCEARCE, LAURA MORRIS, JULIA FULGHUM, in her individual capacity, ALBERT SENA, DENNIS OLGUIN, and SARAH LEISTER, Defendants.



         After 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.

         I. Background[1]

         Defendant 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.)

         In 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.)

         Valencia 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.)

         By this 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.)

         Field 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.)

         Investigation into anthropology department and original disciplinary action

         After 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. ¶¶ 96-97, 108.)

         Apart 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. ¶¶ 117, 122.)

         After 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.)

         In 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.)

         Eventually, 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. ¶ 152.)

         Media fury, reopening of investigation, and termination of employment

         Amid 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. ¶ 154.)

         Valencia 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.)

         Instead, 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. ¶¶ 169-71.)

         Valencia 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.)

         In 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.)

         Valencia's lawsuit and the present motions to dismiss

         Consequently, 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.

         II. Legal Standard: Failure to State a Claim

         A 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).

         III. Civil Rights Claims Under §§ 1983 and 1985 (Counts I-VII)

         Section 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).

         The 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)).

         Here, 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.

         a. The State has not waived sovereign immunity as it pertains to ...

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