Virginia Lawyers Weekly//July 25, 2023
Virginia Lawyers Weekly//July 25, 2023//
Where a college professor alleged that he was subjected to adverse employment actions in retaliation for protected speech, but two of the communications weren’t protected, and there was no causal connection between the third communication and the alleged retaliation, his suit was dismissed.
Stephen Porter has been a tenured professor at North Carolina State University, or NCSU, since 2011. He alleges that he has been outspoken in recent years concerning the focus on “so-called ‘social justice’ affecting academia in general” and “his concern that the field of higher education study is abandoning rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” In this vein, appellant identifies three statements or communications he made between 2016 and 2018 which, in his view, are protected speech. According to appellant, he was eventually subject to adverse employment actions in retaliation for these three communications.
The district court held — and appellant does not dispute — that his claims for damages against the Board of Trustees and the individual defendants in their official capacities are barred by sovereign and Eleventh Amendment immunity. The court also determined that appellant’s “requests for injunctive relief regarding his permission to join the new Higher Education Opportunity, Equity, and Justice Program Area of Study and the removal of the requirement that he teach a fifth course are not prospective, and Ex Parte Young does not provide an exception to Eleventh Amendment immunity.”
Finally, the district court held that while appellant’s request for reinstatement may state a claim for prospective injunctive relief, appellant has failed to state a First Amendment retaliation claim. And, even if appellant had plausibly alleged a First Amendment retaliation claim, the district court held that the individual defendants would be entitled to qualified immunity.
The district court assumed, but did not decide, that the three communications identified by appellant were protected. Upon review, this court has no trouble concluding that at least the survey question incident and the faculty hiring email were unprotected speech.
Appellant himself describes the survey question incident as “nothing more than doing his job.” This clearly does not equate to a matter of public concern. Therefore, because appellant was speaking as an employee, the court must determine whether his speech related to scholarship and teaching. It did not.
Appellant was not teaching a class nor was he discussing topics he may teach or write about as part of his employment. Though appellant mentioned that survey methodology was his personal area of study, this is not enough to convert the speech, in the context of merely “doing his job,” into a matter of scholarship.
The same is true for the faculty hiring email. There, appellant’s speech consisted of asking, “Did you all see this,” linking the Inside Higher Ed article and sarcastically saying, “This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work Alyssa!” The faculty hiring email expressed no viewpoint and made no mention of policy or anything else that might be of public concern. Instead, it was an unprofessional attack on one of appellant’s colleagues, sent only to other faculty members within the department. And it plainly was unrelated to appellant’s teaching or scholarship.
As to the “Woke Joke” blog post, even assuming, as the district court did, that it amounted to protected speech, appellant fails to allege a sufficient causal connection to state a claim for retaliation. Appellant published the blog post on Sept. 3, 2018. NCSU made no mention of the post until Nov. 19, 2018. And appellant was not removed from the department’s Higher Education Program Area until July 5, 2019. Under these circumstances, temporal proximity is lacking. Beyond this, the complaint itself fails to allege that the blog post was the “but for” cause of the alleged adverse employment action.
Richardson, J., dissenting:
Stephen Porter says that NCSU retaliated against him for his protected speech. My friends in the majority say otherwise. They hold that much of Porter’s speech was not protected at all, and that — for his speech that was protected — Porter has not drawn a plausible link to the adverse action that he suffered. My friends err at both steps.
Porter v. Board of Trustees of North Carolina State University, Case No. 22-1712, July 6, 2023. 4th Cir. (Thacker), from EDNC at Raleigh (Boyle). Samantha K. Harris for Appellant. Eric M. David for Appellees. VLW 023-2-173. 43 pp.