MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendants St. Cloud State University and President Earl H. Potter III's Motion for Summary Judgment. [Docket No. 19] The Court heard oral argument on April 11, 2014. Finding no genuine dispute of material fact, the Court grants Defendants' motion.
Plaintiff Mahmoud Saffari is suing his former employer, St. Cloud State University ("SCSU"), and its President, Earl H. Potter III.
Plaintiff is a 53-year-old Muslim man of Iranian descent. (Saffari Aff. ¶ 2.) In 2003, Plaintiff began working at SCSU as Associate Vice President for Enrollment Management under President Roy Saigo. (Anderson Aff., Ex. 1, Saffari Dep., Ex. 4.) This was an important position in SCSU's administration, and Plaintiff served at the pleasure of SCSU's President as a member of his leadership team. (Potter Aff., Docket No. 22, ¶¶ 3-5.) This position was one of at-will employment. (Minnesota State Colleges and Universities Personnel Plan for Administrators, http://www.hr.mnscu.edu/Cabinet_Executive_Se/documents/ AdminPlanNonLeg.pdf, at 9, § 1.03, subd. 3(a) ("Administrators serve at the pleasure of the Chancellor/president and no provision of this Plan shall be construed to alter the at-will nature of an administrator's employment.").)
Plaintiff's job duties were as follows:
(Potter Aff., Ex. A, at SAFFARI 2740.) Plaintiff's position was an important one with substantial responsibility; he managed a two million dollar budget and supervised 30 employees and 24 student workers. (Potter Aff. ¶¶ 3-4.)
During his initial years at SCSU, Plaintiff was supervised by SCSU's Provost, Michael Spitzer. (Potter Aff. ¶ 2.) Spitzer and Plaintiff developed a negative working relationship during these years. (
On July 1, 2007, Potter became SCSU's new President. (Potter Dep. 5.) Potter asked Plaintiff to develop and implement a comprehensive enrollment management plan. (Potter Dep. 44-45, 48-49.) Plaintiff was told that the plan should contain detailed statistical analysis of enrollment trends. (
Plaintiff offers a different account of his interaction with Potter regarding the enrollment management plan. Plaintiff asserts that Potter accepted the plan document and never commented on its contents. Rather, Potter simply instructed Plaintiff to come up with a new plan. (Saffari Aff. ¶ 16.)
Meanwhile, Plaintiff's discrimination complaint against Spitzer was investigated in 2008. (Saffari Aff. ¶ 12.) Plaintiff was told by the investigator that the affirmative action officer at SCSU referred to Plaintiff as "that Arab guy who's giving us a hard time." (Saffari Dep. 80.)
At some point in 2008, in the midst of Plaintiff's problems with Spitzer, Potter called Plaintiff to discuss his relationship with Spitzer. (Saffari Dep. 24-25.) Potter asked Plaintiff if his relationship with Spitzer was sour because Spitzer was Jewish and Plaintiff was Muslim. (
In 2009, Spitzer recommended to Potter that the administration should be reorganized and Plaintiff's position should be eliminated. (Potter Aff. ¶ 2.) Potter thought that Spitzer's impending retirement would give Plaintiff an opportunity to have a fresh start with a new supervisor, Provost Devinder Malhotra. (Potter Dep. 41; Potter Aff. ¶ 2.) Therefore, Potter decided to reject Spitzer's recommendation and retain Plaintiff. (
Malhotra became Provost in July 2009. (Malhotra Dep. 5.) Spitzer, before leaving, told both Potter and Malhotra that he was dissatisfied with Plaintiff's performance. (Potter Dep. 18.) In addressing the enrollment management plan, Malhotra charged a subcommittee of the E/M Committee to develop a predictive model for enrollment management. (Palmer Dep. 9.) At times, Malhotra would tell Plaintiff that he and the members of the E/M Committee "were on the right track." (Saffari Dep. 35.) Plaintiff asserts that, during his two years reporting to Malhotra, he never received a performance evaluation. (Saffari Aff. ¶ 26; Malhotra Dep. 33.) Plaintiff asserts that, in May 2011, Malhotra agreed with Plaintiff in setting a goal date of November 2011 to present a completed enrollment management plan. (Saffari Aff. ¶ 29.) Malhotra could not recall the deadline imposed. (Malhotra Dep. 19.)
SCSU is required to submit its enrollment projections and budget requests to the Minnesota State Colleges and Universities System Office each April. (Potter Aff. ¶ 7.) The System Office relies on these forecasts and requests to determine its income and expenditures. (
These projections predicted a decline in enrollment for the fall of 2011. (Palmer Dep. 17, 21.) Malhotra insisted that the forecasts were too conservative, and he asked the E/M Committee to add 250 FYE (full-year equivalent, i.e., a unit indicating full- or part-time undergraduate or graduate students) to the projected number of enrolled students, which Plaintiff claims made the projections inaccurate. (Saffari Dep. 50-52; Saffari Aff. ¶ 28.) Plaintiff claims that the E/M Committee disagreed with adding the 250 number, but had no choice but to accept Malhotra's instructions. (
In August of 2011, SCSU learned that its actual enrollment for the fall semester had a significant shortfall: the differential between Plaintiff's projection of enrollment and actual enrollment was between 800 and 1000 students. (Potter Aff. ¶ 10; Potter Dep. 126.) Consequently, SCSU had to make a one million dollar emergency budget adjustment. (Potter Aff. ¶ 10; Potter Dep. 24-25, 71.) While Potter did not blame Plaintiff for the enrollment decline itself, he attributed SCSU's emergency budget situation to Plaintiff's failure to provide enrollment forecasts based on data analysis after Potter's repeated requests. (Potter Aff. ¶ 11.)
On August 1, 2011, Plaintiff attended a leadership retreat for senior management. (Saffari Dep. 38-42.) At the retreat, Plaintiff asked about the method of choosing focus groups for a marketing presentation that was being given; Plaintiff asked whether subjects for the focus groups had been selected at random or handpicked. (Saffari Dep. 39, 44-45.) Plaintiff asserts that, at this point, Potter became angry with him; Potter glared at Plaintiff and, in an angry tone of voice, stated that they would move on to the next agenda item. (
Plaintiff also asserts that, later in the retreat, Plaintiff made a comment regarding SCSU's reputation for being a party school. (Saffari Dep. 40-42.) Plaintiff stated that this reputation may have negatively affected enrollment, and he suggested ways to change the perception. (
Potter stated that he expected Plaintiff to publicly support policies that had been internally decided on and implemented by the school, as Plaintiff was a member of Potter's leadership team. (Potter Aff. ¶ 12; Potter Dep. 131-33.) However, Potter thought that Plaintiff's speech placed blame for enrollment losses on others, and this reflected poorly on the University and its administrators. (Potter Aff. ¶ 12; Potter Dep. 130-36.)
In September 2011, Plaintiff was invited by the Faculty Senate to attend their meeting, report enrollment statistics to them, and address their concerns about enrollment. (Saffari Aff. ¶ 31.) Plaintiff told Malhotra that he had been invited to make the presentation; he showed Malhotra the invitation to check and see if it was permissible for him to attend, as speaking to the Faculty Senate was not within Plaintiff's usual job duties. (Saffari Aff. ¶ 31; Malhotra Dep. 61-62.) Malhotra told Plaintiff that Malhotra would go to the meeting instead because it was Malhotra's responsibility to make such presentations, not Plaintiff's. (
After the budget shortfall, Malhotra and Potter made the decision to reorganize the administration to improve enrollment management. (Potter Dep. 75; Malhotra Dep. 48.) They decided to disband the E/M Committee because it had not developed an enrollment management plan using data analysis. (Potter Aff. ¶ 13; Potter Dep. 75-76; Malhotra Dep. 19-20.)
On August 19, 2011, Malhotra notified the E/M Committee that the committee was being suspended, explaining that "we need to provide you better tools, in the form of data analytics and a strategic enrollment management approach(es), in order for the committee to do its work successfully." (Anderson Aff., Ex. 1, Saffari Dep., Ex. 41, at Saffari 0001.) A new team was created, and Malhotra took responsibility to oversee an "Enrollment Executive Council ... to develop a strategic enrollment framework that will be used to develop the overall enrollment management plan."
Plaintiff contends that he spoke at a Strategic Planning and Effectiveness Committee meeting on September 1, 2011. (Saffari Aff. 38.) During this meeting, Plaintiff attributed the enrollment decline to management decisions to reorganize and cut student majors for the 2011-2012 academic year. (
Plaintiff also asserts that he accused Foss of racial discrimination at this meeting, citing the fact that she cut off people of color when they attempted to speak. (Saffari Aff. ¶ 38.) When Plaintiff attempted to raise this issue, he was prevented from doing so by Foss. (
In early September, Potter, Malhotra, Foss, and Special Assistant to the President, Judith Siminoe, came to the decision to terminate Plaintiff. (Schermer Aff., Ex. 6, Potter's Answers to Interrogs., No. 2; Siminoe Dep. 5, 7.) In discussing reasons for Plaintiff's termination, Potter told the group that he was concerned about Plaintiff's leadership and ability to take responsibility for his enrollment management decisions. (Siminoe Dep. 8-9.) The group discussed what would occur on the day of Plaintiff's termination. (Siminoe Dep. 13-14.) It was decided that Plaintiff would be escorted from the building after he was told of his termination. (Siminoe Dep. 19.)
While other management employees had been terminated during his presidency at SCSU, Potter had never directed that anyone else be escorted upon their termination. (Potter Dep. 60-61.) The group acknowledged the possibility that escorting Plaintiff would create speculation and negatively affect public perception of his termination. (Potter Dep. 82-84.) Potter, however, decided to escort Plaintiff because Potter felt he was responsible for safeguarding SCSU's assets, and it would be a failure in his role as President to not take the measure of escorting Plaintiff. (Potter Dep. 62-63.)
Potter provided Plaintiff 90 days' notice of Plaintiff's termination on September 20, 2011. (Potter Aff. ¶ 14, Ex. B.) Plaintiff was given the termination letter and escorted to his office and car by Siminoe. (Saffari Aff. ¶ 39.) He was then observed until he drove off of the parking lot. (
Witnesses observed Plaintiff being escorted out of the building. (Siminoe Dep. 15-17.) There was also media coverage of the termination. (Saffari Aff. ¶ 1.) Plaintiff points out that an article appeared in the
(Schermer Aff., Ex. 9.)
Potter made various statements about Plaintiff's termination. He told Leigh, who also served as the Lead Organizer for the Community Anti-Racism Education Initiative, that Plaintiff was terminated because he did not create an enrollment management plan. (Leigh Dep. 4, 30.) Potter expressed this same reason to the Staff and Faculty of Color Caucus. (Potter Dep. 77.) Potter also told Malhotra that Plaintiff never provided Potter a finished enrollment management plan. (Malhotra Dep. 27-28.) At one point, Potter made the following statement: "It is a matter of public record that we have never had an enrollment management plan since I arrived at SCSU and before." (Potter Dep. 101.) However, Potter told Mark Jaede, Assistant Professor of History at SCSU, that Plaintiff's termination was not a matter of performance. (Potter Dep. 115-16.) Finally, he characterized Plaintiff's termination as an attempt for the administration to go in a new direction. (Potter Dep. 80-81.)
When the student newspaper at SCSU asked Potter if escorting a person out of the building was standard operating procedure, Potter stated that such an occurrence was not atypical. (Schermer Aff., Ex. 7 (student newspaper quoting Potter as saying that escorting Saffari "was not unusual practice.").) However, Potter was unable to name a single person who had been escorted in such a way. (
During the 90-day termination period, Plaintiff was given a special project to complete at home. (Potter Aff. ¶ 14; Anderson Aff., Ex. 1, Saffari Dep., Ex. 43.) Pursuant to Minn. Stat. § 181.933, Plaintiff requested the reasons for his termination, and Malhotra provided the following letter, dated October 31, 2011:
(Anderson Aff., Ex. 1, Saffari Dep., Ex. 44.)
Defendants note that, since Plaintiff's termination, SCSU has developed data analysis tools, which enabled it to predict the 2013-2014 academic year's enrollment within less than one percentage point, resulting in more informed budgetary choices. (Potter Aff. ¶ 15; Potter Dep. 121, 126; Malhotra Dep. 21, 34.) Plaintiff, however, points out that there is still no enrollment management plan in one place or in one document; there is simply an unwritten strategic position on enrollment scattered across various documents. (Malhotra Dep. 21-23.) Plaintiff also notes that there is an ongoing concern about the accuracy of SCSU's public predictions on enrollment. (Palmer Dep. 27.)
On January 3, 2013, Plaintiff commenced this action against Defendants. [Docket No. 1] Plaintiff's Complaint alleges Count I: National Origin, Color, and Religious Discrimination in Violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Minnesota Human Rights Act ("MHRA"); Count II: Civil Rights Violations under 42 U.S.C. § 1983 ("Section 1983"); Count III: Violation of the Minnesota Government Data Practices Act ("MGDPA"); and Count IV: Defamation. All counts are asserted against both Defendants. Defendants have moved for summary judgment on all claims. [Docket No. 19]
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
As an initial matter, certain claims in this action fail by operation of various statutes.
Plaintiff's Title VII claims against Potter in his official capacity and in his individual capacity are barred because Title VII does not permit individual supervisor liability.
Potter, in his official capacity, and SCSU are not subject to suit under 42 U.S.C. § 1983. Section 1983 claims can be asserted against a "person" acting under color of state law who deprives another person of federal rights. 42 U.S.C. § 1983. However, "neither a State nor its officials acting in their official capacities are `persons' under § 1983."
Furthermore, the Eighth Circuit has held that state universities are not persons within the meaning of the statute.
The following claims remain: (1) the Title VII claim against SCSU, (2) the Section 1983 claim against Potter in his individual capacity, (3) the MHRA claim, (4) the MGDPA claim, and (5) the defamation claim. The Court will first examine the federal claims.
Under Title VII and Section 1983, Plaintiff alleges discrimination based on national origin, color, and religion. Plaintiff presents claims for (1) discriminatory termination, (2) disparate treatment, (3) hostile work environment, and (4) First Amendment violations.
To prevail on a Title VII discrimination claim, a plaintiff must show the following four elements: "(1) he is a member of a protected class; (2) he met his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination."
There are two ways to prove element four, discriminatory intent: either by proffering direct evidence of intent or by meeting requirements under the
If a plaintiff cannot show direct evidence of discriminatory intent, he may establish a prima facie case with circumstantial evidence under the
Plaintiff's discriminatory termination claims fail as a matter of law because Defendants have produced evidence of their legitimate, non-discriminatory reasons for terminating Plaintiff, and Plaintiff has failed to show that these reasons are pretext.
Plaintiff maintains that he has made a prima facie case of discrimination here. First, he asserts that he did indeed meet SCSU's expectations, especially with regard to the enrollment management plan, because the Enrollment Management Committee predicted the enrollment decline that occurred in the fall of 2011. Plaintiff also asserts that he met SCSU's expectations because Malhotra never gave Plaintiff any performance evaluations in the two years he was Provost, and there is nothing in Plaintiff's personnel file stating that he performed poorly.
Plaintiff, pointing to circumstantial evidence of totality of circumstances, asserts that there was an inference of discrimination in his termination. Plaintiff alleges that one may reasonably infer discrimination in his termination from the tense conversations regarding Iranian politics, comments about his religion, and the fact that he met employment expectations. However, because Plaintiff cannot show discriminatory conduct or statements that were related to his termination, Plaintiff's evidence is circumstantial and analysis within the burden shifting framework is required. To demonstrate discrimination with circumstantial evidence, Plaintiff must show that he met SCSU's legitimate expectations of the position, and he must show that the circumstances gave rise to an inference of discrimination.
Defendants have offered three non-discriminatory reasons for terminating Plaintiff's employment. First, Defendants argue that Potter and SCSU terminated Plaintiff because he failed to provide a satisfactory enrollment management plan. Defendants point out that the plan that Plaintiff did develop was not satisfactory because it lacked support from data analytics or statistical modeling; Plaintiff did not create a quantitative analysis of the demographic changes that could be encountered by SCSU. Specifically, as early as 2007, Potter himself rejected Plaintiff's enrollment management plan as unsatisfactory and asked him to create a new plan with a better predictive model. (Potter Dep. 48-49, 77.) After the Enrollment Management Committee created what it thought was a predictive model, Malhotra told the Committee and Plaintiff that it was unsatisfactory. (Palmer Dep. 7, 9-11.) SCSU was also increasingly frustrated with Plaintiff's inadequate predictive model. (Palmer Dep. 25-27; Potter Dep. 41-42, 44, 72, 124-25.)
Second, Defendants argue that they terminated Plaintiff because his faulty plan did not adequately prepare SCSU for a significant budget shortfall. The Committee's forecasts for entering freshmen were so inaccurate that they predicted an enrollment shortfall that was off by several hundred of students— regardless of whether Malhotra adjusted of the projection. While Plaintiff insists that his plan predicted the enrollment decline, Defendants were surprised by the extent and magnitude of the decline, for which Plaintiff's plan did not prepare them. (Schermer Aff., Ex. 10; Palmer Dep. 21-22.) Plaintiff offers no evidence to directly rebut this.
Finally, Defendants argue that the third non-discriminatory reason for Plaintiff's termination was Plaintiff's breach of Potter's trust and failure to accept accountability for the budget shortfall. The record has provided ample evidence that Plaintiff had not met the reasonable expectations of his employer.
Because Defendants have proffered non-discriminatory reasons for terminating Plaintiff, Plaintiff is required to show that these reasons are mere pretext. Viewing the evidence in the light most favorable to Plaintiff, there is insufficient evidence from which a reasonable factfinder could find pretext.
A plaintiff can demonstrate pretext by showing that the employer's proffered reasons are unworthy of belief.
Second, Plaintiff argues that Defendants' focus on a supposed desire for data analytics is disingenuous because the difference between data analytics and the approach Plaintiff used in formulating his enrollment management plan is irrelevant, and Plaintiff's approach was sufficiently thorough. While this argument may present a reasonable basis for disagreement with Defendants' preferences regarding enrollment plans, it does not show that Defendants' reasons for terminating Plaintiff were disingenuous and unworthy of credence because Defendants' desire for a plan using data analytics was similarly reasonable. If anything, this argument only highlights the professional disagreement between the parties regarding the proper standards for creating enrollment plans. Beyond this, without further indicia of discrimination, the Court cannot decide what constitutes a satisfactory enrollment management plan, as doing so would be second-guessing the wisdom of Defendants' termination decision, which is impermissible.
Plaintiff also argues that Defendants' proffered rationale for terminating Plaintiff because he did not prepare SCSU for the decline in freshman enrollment is pretext because SCSU did in fact expect an enrollment decline. However, Defendants have asserted that a decline was expected, but Plaintiff's failure was that his predictive model did not prepare the University for the magnitude of the decline. (
Finally, Plaintiff argues that Defendants' proffered reasons are pretext because Potter shifted explanations for the termination. An employer's shifting rationale for termination can be evidence that its rationale is pretextual.
Considered in context, this argument fails, however. Viewing the evidence in the light most favorable to Plaintiff, Potter's explanations are not accurately described as shifting or inconsistent rationale to warrant application of
(
Additionally, the Court concludes that Defendants receive the benefit of the "same actor" inference regarding Plaintiff's termination claim. There is "a strong inference that discrimination was not a motivating factor if the same person hired and fired the plaintiff within a relatively short period of time."
Viewing the evidence in the light most favorable to Plaintiff, the Court concludes that Defendants have offered legitimate reasons for terminating Plaintiff, and Plaintiff's attempts at showing pretext are inadequate. Accordingly, the Court dismisses the discriminatory termination claim.
Plaintiff also makes a claim for disparate treatment. (Compl. ¶ 20.) The parties argue this claim within the
Specifically, Plaintiff argues that there is circumstantial evidence for disparate treatment discrimination because Plaintiff was escorted from his office to the parking lot when he was terminated. Plaintiff also asserts that he was treated differently by being told that he could not speak to employees in his department, while other non-Iranian terminated employees were not told this. Assuming without deciding that these points comprise a prima facie case for disparate treatment, the claim ultimately fails because Defendants provide legitimate reasons for escorting Plaintiff, and Plaintiff is unable to demonstrate that these reasons are pretext.
Defendants provide a legitimate, non-discriminatory reason for the decision to escort Plaintiff off campus. They argue that the decision to escort Plaintiff was based on a desire to safeguard SCSU's private and sensitive information and equipment. Defendants also claim that Plaintiff was escorted in order to allow the administration the ability to inform staff about the change in leadership in the appropriate way. Defendants also note that Plaintiff was not told to not talk to his staff; rather, he was told in his termination letter that he did "not need to contact others in your former office" because his special project did not involve past duties. (Second Anderson Aff., Ex. 6, Malhotra Dep., Ex. 2.) Defendants argue that this instruction was not discriminatory.
A plaintiff may show pretext in disparate treatment claims by showing that he was treated differently from others who were similarly situated.
Plaintiff has failed to show pretext here because he is unable to show that others not escorted were similarly situated in all relevant respects. Plaintiff argues that he was the only terminated administrator who was escorted off campus. However, a review of the record shows relevant distinctions in the circumstances of other administrators who were not escorted that show they are not truly similarly situated. For example, another administrator was terminated off campus and therefore did not need to be escorted from campus. (Siminoe Dep. 21.) Other administrators who were not escorted did not have access to their offices anyway, so there was no need to escort them to safeguard sensitive information. (Malhotra Dep. 69-70.) Finally, yet another administrator who was not escorted was told to work from home and not come to campus. (Potter Dep. 58-59.) Notably, she was told not to contact her staff, which further weakens Plaintiff's claim that he was the only administrator told not to contact his staff. (
Finally, it is significant that none of the other administrators have been shown to have breached Potter's trust as Potter thought Plaintiff had. These distinctions are relevant, and they make Plaintiff's disparate treatment claim untenable. He is unable to demonstrate that similarly situated administrators were treated differently. Viewing the record as a whole, the Court concludes that the evidence is insufficient for a reasonable factfinder to find pretext. Accordingly, the Court dismisses Plaintiff's disparate treatment claim.
Plaintiff's complaint asserts that Defendants violated Title VII and Section 1983 by subjecting him to harassment resulting from hostile work environment. Plaintiff alleges hostile work environment under Title VII against Potter, individually, and alleges harassment in violation of Section 1983 and the Equal Protection Clause of the Fourteenth Amendment against SCSU.
To establish a harassment claim, a plaintiff must show that: (1) he belongs to a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based on his protected class status; (4) the harassment affected the terms, conditions, or privileges of his employment; and (5) the employer knew or should have known of the harassment and failed to take appropriate remedial action.
Plaintiff's allegations simply fail to rise to the level of harassment or hostile work environment. The conduct creating hostile work environment harassment must be "extreme in nature and not merely rude or unpleasant."
The strongest facts supporting Plaintiff's claim are (1) that someone referred to plaintiff as "that Arab guy," (2) that Plaintiff and Potter had an uncomfortable conversation about his and Spitzer's religious beliefs, and (3) that Plaintiff and Potter engaged in conversation about Iranian politics, which made Plaintiff uncomfortable. However, this limited number of potentially offensive comments is not enough.
Potter's comments are more aptly categorized as isolated incidents and they are not suggestive of a connection to Plaintiff's termination in the totality of the circumstances. Even if the conversation between Potter and Plaintiff was discriminatory, Plaintiff has failed to show any connection between the conversation and Plaintiff's termination.
Plaintiff asserts a Section 1983 claim against Potter regarding Plaintiff's First Amendment rights. Specifically, Plaintiff claims that he was retaliated against for his speech and that his speech was restrained. For the following reasons, the Court concludes that Plaintiff's First Amendment claim fails.
To prevail on a Section 1983 action, a plaintiff must prove two elements: (1) the action complained of was committed by a person acting under color of state law, and (2) this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.
First, regarding retaliation for speech, Plaintiff argues that both elements are met. Plaintiff claims that his termination was retaliation for the speech he made at the August 1, 2011 leadership retreat about focus group selection and SCSU's reputation for being a party school, after which Potter became visibly angry. Plaintiff argues that this speech about enrollment issues at SCSU was protected because it was a matter of public concern; enrollment was of great interest to both members of the community and the faculty.
Second, in asserting his First Amendment claim, Plaintiff also claims that his speech was unconstitutionally restrained. Specifically, Plaintiff cites when Malhotra prevented him from accepting the invitation to speak to the Faculty Senate about enrollment issues. (Compl. ¶ 11.) Plaintiff argues that the statements he would have made were protected because they were not job-related, as it was not a responsibility of Plaintiff's job to address the Faculty Senate. Plaintiff maintains that the purpose of his speech was not to address a private employment interest, but to raise issues of public concern. Therefore, this was protected speech and was unconstitutionally restrained.
The Court holds that neither Plaintiff's comments made at the retreat nor what he would have said at the Faculty Senate were constitutionally protected speech because they did not involve a matter of public concern. A matter of public concern involves political, social, or other concerns of the community.
"[T]he First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities."
Here, Plaintiff's comments at the retreat and what he would have said at the Faculty Senate were not a matter of public interest. Plaintiff did not seek to communicate some wrong to the public in these contexts. These instances of speech were purely job-related, and the tone of the speeches was not to "bring to light actual or potential wrongdoing or breach of public trust on the part of" SCSU.
However, in continuing to allege restraint on speech, Plaintiff also points to the September 2011 Strategic Planning Committee meeting. Plaintiff claims that, during the meeting, Foss cut Plaintiff off and did not allow him to speak after he complained that Foss discriminated against people of color. Arguably, Plaintiff's statements to Foss about her treatment of faculty of color raise a matter of public interest because they allege discrimination.
Therefore, the only relevant aspect of this conversation is Potter's intent and knowledge of this conversation. Potter was not present at this meeting and was unaware that these comments were made. (Second Potter Aff., Docket No. 37, ¶ 2; Potter Dep. 68-71; Foss Dep. 57-62, 70-73.) Because of this, Plaintiff has no actionable claim against Potter for Foss's actions. Accordingly, the Court dismisses Plaintiff's First Amendment claim altogether.
Plaintiff asserts MHRA, MGDPA, and defamation claims against SCSU and Potter. However, these state law claims fail against SCSU and Potter in his official capacity on Eleventh Amendment grounds. The Eleventh Amendment prohibits federal courts from exercising jurisdiction over state law claims against non-consenting states when the state is the real, substantial party in interest.
Plaintiff's state law claims against SCSU and Potter in his official capacity are barred under the Eleventh Amendment. Furthermore, the MHRA and MGDPA claims against Potter
Accordingly, the Court dismisses Plaintiff's MHRA and MGDPA claims.
This leaves the defamation claim. Because the Court has dismissed all federal claims, it is purely within the Court's discretion whether to retain supplemental jurisdiction under 28 U.S.C. § 1367 and decide the defamation claim.
Statements are considered defamatory if they are (1) false; (2) communicated to someone other than the plaintiff; and (3) tend to harm the plaintiff's reputation and to lower his estimation in the community.
Plaintiff provides various factual bases for his defamation claim. First, Plaintiff alleges that he was defamed when "[t]hey made statements that he was escorted and they made statements that he was instructed not to talk." (Pl.'s Mem. 30-31.) A defamation claim based on these statements fails as a matter of law. These statements are impermissibly vague, as Plaintiff has not pled the statements with reference to "who made the statement, to whom it was made, and where."
Second, Plaintiff, claiming defamation by implication, argues that he was defamed when SCSU administrators failed to explain why he was escorted off campus, and this omission created the implication that Plaintiff had committed malfeasance.
This second claim also fails as a matter of law. First, the conduct of escorting Plaintiff after his termination is not defamatory in itself.
Furthermore, Plaintiff has not shown that any implication tended to harm Plaintiff; rather, Potter's statements likely helped Plaintiff by suggesting that he was treated no differently from other terminated employees. Stating that escorting is standard procedure relieves Plaintiff from scrutiny and reduces speculation that he committed wrongdoing to warrant unique, negative treatment. Considering the record as a whole, there is insufficient evidence for a reasonable factfinder to conclude that (1) Potter's statements were false or (2) Potter's statements and omissions implied something that harmed Plaintiff's reputation. The Court therefore dismisses Plaintiff's defamation claim.
Finding no genuine dispute of material fact, and viewing the record in the light most favorable to Plaintiff, the Court concludes that there is insufficient evidence by which a reasonable juror could find for Plaintiff on any claim. Accordingly, based on all the files, records, and proceedings herein,
