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Donald Jason Raymond v. Peter Alexander

September 25, 2012

DONALD JASON RAYMOND, PLAINTIFF,
v.
PETER ALEXANDER,
SUSAN LOGUE, BRENT D. PATTON, MARILYN JANE MILLER, AND BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, DEFENDANTS.



The opinion of the court was delivered by: Reagan, District Judge:

MEMORANDUM AND ORDER

Plaintiff Donald Jason Raymond was effectively terminated as an Assistant Professor at Southern Illinois University School of Law at Carbondale (SIUC) for threatening to hit a fellow professor with a crowbar, and for making disparaging remarks toward co-workers and students, thereby violating the Workplace Violence Policy and the Faculty Code of Ethics.*fn1

Raymond filed suit on June 17, 2011, pursuant to 42 U.S.C. § 1983, alleging that SIUC and various university officials (in their individual capacities) violated his civil rights (Doc. 9). The amended complaint also presents related state law claims by invoking the federal courts' supplemental jurisdiction under 28 U.S.C. § 1367. Defendants Peter Alexander, Susan Logue, Brent D. Patton, Marilyn Jane Miller and the Board of Trustees of Southern Illinois University have now moved to dismiss the amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted (Doc. 24). Plaintiff has filed a response opposing the motion to dismiss (Doc. 29).

1. Synopsis of the Facts Alleged in the Complaint

In August 2008, Plaintiff Donald Jason Raymond was hired by Southern Illinois University School of Law as an assistant professor and law librarian for a 12-month term, although the position was characterized as "tenure track." In early September 2008, a sexual harassment claim was lodged against Raymond by a student library worker. Although Raymond was questioned about the allegation, he was not given a copy of the complaint. No disciplinary charge was ever brought against Raymond. Professor Douglas Lind, Director of the Law Library (Raymond's supervisor), and Dean Peter Alexander assured Professor Raymond that the matter had been resolved. Raymond believes the student's harassment complaint tainted his future job opportunities.

On June 16, 2009, Marilyn Jane Miller, an assistant in the library, gave Raymond a copy of the student's sexual harassment complaint. Miller asked that Raymond not reveal from whom he received the document. She explained that Law Librarian Professor Candle WesterMittan had told her that she would get in "big trouble" if she, Miller, ever showed the document to Raymond.

The next morning, June 17, 2009, when Law Library Director Lind entered the library he encountered Miller crying. Miller told Lind, "[Y]ou might as well fire me now." Miller then reported that she had given Raymond a copy of the sexual harassment complaint. Lind was angry that Miller knew about the complaint and said he was going to report the matter to Dean Alexander. While Lind was in the Dean's Office, Miller went to Professor WesterMittan and reported that Raymond had threatened to bash Wester-Mittan's head with a crowbar.

After discussing the threat with Lind and Wester-Mittan, Dean Alexander spoke to Miller. Miller elaborated that Professor Raymond "frequently" made such threats against Professor Wester-Mittan. That very day, without questioning Raymond, Dean Alexander, accompanied by police officers, gave Raymond a letter recounting the alleged threat. Despite his assertion that the threat was a lie, Raymond was directed to vacate his office and he was escorted off campus.

According to the complaint, on or about June 17, 2009-the same day Miller reported the alleged threat-Professor Raymond called the Provost's Office asking how to file a complaint regarding violations of the confidentiality provisions of the university's sexual harassment policy. He was routed through various individuals and ended up speaking with Provost Logue's assistant, Ms. Biggs. Raymond told Biggs that he had evidence to show that the Dean had not been honest with him about the sexual harassment allegations that were brought against him.

On June 25, 2009, five charges for termination were lodged against Professor Raymond. On July 24, 2009, Provost Logue conducted a hearing, despite Raymond's request that she recuse herself based on a conflict of interest stemming from the fact that Raymond had contacted the Provost's Office regarding the privacy policy violation. Dean Alexander was the sole witness presented by the University. Raymond alleges that the university withheld documentation, misallocated the burden of proof, and denied him due process in various other ways. Raymond appealed Provost Logue's adverse ruling and a new hearing was ordered.

On July 28, 2010, a second hearing was conducted before Brent Patton, Director of the SIU Office of Labor and Employee Relations. Although Raymond was able to confront and cross-examine Miller, he asserts that Miller's testimony was patently and demonstratively false. In January 2011, Patton issued a report, concluding that Raymond had threatened to kill a fellow professor with a crowbar, and had made disparaging remarks toward co-workers and students as charged, thereby violating the Workplace Violence Policy and the Faculty Code of Ethics. Patton recommended that Raymond be immediately discharged. On January 12, 2011, Gary Minish, Provost and Vice Chancellor, approved the findings and recommendation that Raymond be terminated. At the time the amended complaint in this case was filed, Raymond's administrative appeal was still pending, and he remained on paid administrative leave.

On March 30, 2010, Raymond filed a Title VII (42 U.S.C. § 2000e et seq.) charge with the EEOC, alleging that SIUC suspended him indefinitely in retaliation for Raymond inquiring about filing a complaint regarding SIUC not following its sexual harassment confidentiality policy. On July 5, 2011, Raymond was issued a Right to Sue letter.

2. Applicable Legal Standards

In ruling on a Rule 12(b)(6) motion to dismiss, a plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level' " and "if they do not, the plaintiff pleads itself out of court." E.E. O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). In either situation, the Court treats all well-pleaded allegations as true, and draws all reasonable factual inferences in the Plaintiff's favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).

Although at this stage the complaint's factual allegations are accepted as true, allegations in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion. Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Id. The plausibility standard calls for a "context-specific" inquiry that requires the Court "to draw on its judicial experience and common sense."

Id. at 679. This is "not akin to a 'probability requirement,'" but the plaintiff must allege "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557.).

3. Analysis

Defendants move to dismiss all ten counts of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Each claim will be addressed in turn.*fn2

Count I: Equal Protection

Count I alleges that Defendants Alexander, Logue and Patton treated Raymond less favorably than they treated others, discriminating and retaliating against Raymond based on his gender and his complaint of violations of the university's sexual harassment policy, thereby denying him "equal protection" in violation of the Fourth, Fifth and Fourteenth Amendments.*fn3

Defendants argue that the complaint does not provide any facts or allegations that would support a reasonable inference that his gender was a reason for the recommendation to terminate his employment. Defendants highlight paragraphs 74, 77 and 78 of the amended complaint, which do not mention gender:

74. Defendants Alexander, Logue and Patton treated Prof. Raymond less favorably than they treated other faculty similarly situated to Prof. Raymond, discriminating and retaliating against him by removing Prof. Raymond from his tenure-track faculty position, and sustaining such removal, due to his gender, and to his complaints of violations of the SIUC Sexual Harassment Policy.

77. On best information and belief, during times relevant hereto, no other Law School faculty complained of violations of the SIUC Sexual Harassment Policy.

78. On best information and belief, SIUC renewed the contracts of all other Law School faculty during times relevant hereto.

Citing Swearingen-El v. Cook County Sheriff's Dept., 416 F.Supp.2d 612, 617 (N.D.Ill. 2006), and Brown v. Budz, 398 F.3d 904, 916 (7th Cir. 2005), Plaintiff Raymond counters that he is not required to "show" anything, or specifically identify similarly situated individuals in his complaint. Of course, Swearingen-El is not a ...


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