Ex-law prof’s retaliation claim survives, others tossed

The Eastern District of Virginia has dismissed most claims against a university asserted by a law professor who resigned amidst competing Title IX complaints involving a former student and romantic partner who accused him of sexual assault and retaliation.

The professor sued the university for retaliation after it had accepted the former student’s amended complaint claiming the professor retaliated against her when he sued her for defamation. The university pointed out its obligation to investigate Title IX complaints.

U.S. District Judge Patricia Tolliver Giles said the professor plausibly alleged retaliation; however, his First Amendment rights weren’t adequately clear that a “reasonable official would understand that what he is doing violates that right.”

Faced with that question of first impression, Giles granted qualified immunity to a university administrator and dismissed several other claims in Wright v. The Rector and Visitors of George Mason University (VLW 024-3-512).

Binnall Law Group in Alexandria represented Wright.

“We are pleased that the court has affirmed Mr. Wright’s right to petition his state government through a defamation lawsuit, recognizing it as a constitutionally protected activity under the First Amendment,” a firm spokesperson said. “The ruling confirms that the state university cannot punish Mr. Wright for exercising this fundamental right.

Attorneys for George Mason declined to comment.

Title IX complaints

Per the complaint, Joshua Wright, formerly a law professor at George Mason University, began a romantic relationship with Elyse Dorsey, then his student who later became adjunct faculty. After 11 years, Wright ended their relationship, and Dorsey allegedly became “hostile and vindictive.”

Dorsey filed a Title IX complaint accusing Wright of sexual assault at the beginning of their relationship, as well as retaliation after their breakup.

After Wright learned of the complaint, Dorsey and another student of Wright’s began telling his consulting clients that he sexually harassed them.

Wright filed his own Title IX complaint against Dorsey, alleging retaliation and sexual harassment. George Mason dismissed his complaint because Dorsey wasn’t an active student or employee; Dorsey’s complaint remains ongoing.

Dorsey and the other student settled their Title VII and IX complaints against George Mason. Wright resigned, believing he wouldn’t receive fair process. After his resignation, Dorsey went public with her claims and university administrators made public statements.

Wright sued Dorsey and the other student for defamation, after which Dorsey amended her Title IX complaint to allege that Wright’s suit was retaliation. Thomas Bluestein, the university’s Title IX coordinator, accepted the amended complaint and rebuffed Wright’s objections.

Wright then sued George Mason and moved for a preliminary injunction prohibiting the Title IX investigation until his claims were litigated. The defendants moved to dismiss.

Chilling effect

Wright claimed Bluestein violated his First Amendment right to petition his government for redress by accepting Dorsey’s amended Title IX complaint charging him with retaliation for filing his defamation lawsuit.

The defendants contended there was still a question whether Wright’s lawsuit fell outside the ambit of First Amendment protection.

Because the defendants challenged the merits of Wright’s lawsuit, rather than focusing on the complaint’s legal sufficiency, Giles found that Wright sufficiently alleged protected activity.

Looking to Constantine v. Rectors and Visitors of George Mason Univ., Giles said a plaintiff suffers an adverse action if the retaliatory conduct likely would deter a person from exercising their First Amendment rights.

“This is an objective inquiry which turns on ‘conduct that tends to chill such [First Amendment] activity, not just conduct that freezes it completely,’” the judge said, adding that she was persuaded that the defendants’ conduct plausibly could have a chilling effect.

“In particular, the Court finds that Plaintiff has plausibly alleged that being placed under an investigation for pursuing one’s right to seek legal remedies against potentially defamatory conduct would, by its very nature, likely deter an objectively reasonable person from freely exercising their right to petition,” Giles wrote.

With only two weeks separating Wright’s defamation lawsuit and the university accepting Dorsey’s Title IX complaint, the judge found credible allegations of causal connection; the university’s public statements plausibly showed a retaliatory motive.

Qualified immunity

The defendants said Bluestein was protected in his individual capacity by qualified immunity because his conduct didn’t violate clearly and reasonably established rights.

“However, ‘it is not required that a right violated already have been recognized by a court in a specific context before such right may be held ‘clearly established’ for purposes of qualified immunity,’” Giles noted, citing Booker v. S.C. Dep’t of Corr. “Rather, the concern is whether the contours of the right ‘are sufficiently clear that a “reasonable official would understand that what he is doing violates that right.”’”

The judge said this was a matter of first impression, and found it wasn’t sufficiently clear that Bluestein’s conduct violated Wright’s rights. Both the Supreme Court and 4th U.S. Circuit Court of Appeals have established that a lawsuit lacking a reasonable basis can be retaliation.

“Therefore, the Court finds that in the wake of the ongoing Title IX investigation and allegations that Plaintiff’s defamation lawsuit constitutes retaliation under Title IX, it was within the purview of Defendant Bluestein, as George Mason’s Title IX Coordinator to consider whether Plaintiff’s lawsuit may have violated Title IX,” Giles wrote.

Bluestein was granted qualified immunity.

‘Unitary event’

Using analyses refined in Martin v. Duffy and Mt. Health City School District Board of Education v. Doyle, Giles said Wright failed to establish a causal relationship between his protected activity and the university’s conduct as required for retaliation.

She described Wright’s protected conduct as a “unitary event” that could prompt either a permissible or an impermissible reason on the part of the defendant to act.

“The Fourth Circuit held that in unitary event retaliation cases, application of the same-decision test ‘asks not whether the defendant would have reached the same decision absent the plaintiff’s protected conduct, but whether the defendant would have reached the same decision absent a retaliatory motive,’” Giles wrote.

The defendants rebutted Wright’s retaliation claim by showing that their decision to investigate Dorsey’s amended complaint was done with the sole motivation of meeting their obligations under Title IX.

“Though Plaintiff may disagree with George Mason’s choice to investigate Dorsey’s retaliation claim, mere disagreement is not enough to establish that the decision was done with a retaliatory motive,” Giles said.

The judge refused grant injunctive relief.

Deliberate indifference

Wright also claimed George Mason was deliberately indifferent to the sexual harassment he allegedly suffered.

“Sexual harassment occurs when the victim is subjected to sex-specific language that is aimed to humiliate, ridicule, or intimidate,’” Giles said, adding that the Fourth Circuit rejected an argument similar to Wright’s in Balazs v. Liebenthal.

Relevant Title IX case law didn’t support Wright’s attempt to distinguish Balazs — a sexual discrimination claim — from his harassment claim.

Nor was Giles persuaded by Wright’s reliance on Luskin v. University of Maryland, College Park, Maryland to argue that Dorsey’s berating was sexual harassment.

And because Wright initially alleged that Dorsey didn’t go public until after he resigned, Giles found that he didn’t allege that the harassment had a ‘concrete, negative effect on [his] ability to participate in [the institution’s educational] program[s] or activit[ies].’”

“While Plaintiff asserts that, as a result of Dorsey’s conduct, he experienced emotional distress, he does not allege that his decision to resign from the University was due to either Dorsey’s conduct or the alleged emotional distress,” she said. “Rather, Plaintiff resigned because he believed that ‘he was not going to receive any fair process’ by the University.”

Finally, Giles held that George Mason was permitted to dismiss Wright’s Title IX complaint because Dorsey was neither enrolled in nor employed by the university. Thus, Wright failed to state a claim of deliberate indifference.