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Crosby v. University of Kentucky

United States Court of Appeals, Sixth Circuit

July 17, 2017

Richard A. Crosby, Ph.D., Plaintiff-Appellant,
v.
University Of Kentucky, Defendant, Eli Capilouto; Timothy Tracy, Ph.D.; William Eugene Thro; Wayne T. Sanderson, Ph.D., CIH; Terry Allen, in their individual and personal capacities, Defendants-Appellees.

          Argued: April 26, 2017

         Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:15-cv-00276-Joseph M. Hood, District Judge.

         ARGUED:

          Kent Masterson Brown, LAW OFFICES OF KENT MASTERSON BROWN, PLLC, Lexington, Kentucky, for Appellant.

          Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, for Appellees.

         ON BRIEF:

          Kent Masterson Brown, LAW OFFICES OF KENT MASTERSON BROWN, PLLC, Lexington, Kentucky, for Appellant.

          Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Appellees.

          Before: MERRITT, GILMAN, and DONALD, Circuit Judges.

          OPINION

          RONALD LEE GILMAN, Circuit Judge.

          Richard A. Crosby, a tenured professor at the University of Kentucky's College of Public Health, appeals from the dismissal of his claims against various administrative officials affiliated with the University. He brought suit under 42 U.S.C. § 1983 and under Kentucky state law in connection with his removal as Chair of the Department of Health Behavior. Crosby argues on appeal that, contrary to the district court's holding, his removal amounted to an actionable deprivation of his protected property and liberty interests without due process of law under both the U.S. Constitution and the Kentucky Constitution. He also asserts that the defendants are not protected by the doctrine of qualified immunity. Finally, Crosby claims that the defendants are liable under Kentucky contract law for monetary damages caused by his removal. For the reasons set forth below, we AFFIRM the judgment of the district court.

         I. BACKGROUND

         A. Factual background

         Because Crosby appeals from the dismissal of his claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "we construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff." See Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016). The facts presented below are therefore cast in the light most favorable to Crosby.

         Crosby was hired in 2004 as a professor by the College of Public Health at the University of Kentucky. The University's Board of Trustees awarded him tenure that same year. In 2006, he was appointed to a four-year term as Chair of the Department of Health Behavior. Crosby was reappointed for two additional four-year terms as Chair, first in 2010 and again in 2014. As Chair, Crosby was responsible for teaching, mentoring assistant professors, producing and publishing scholarly works, securing and administering grants to advance research and understanding in the field of health behavior, and overseeing the needs of the department's faculty and students. He was paid a $5, 000 stipend in addition to his salary for each year that he served as Chair.

         Crosby received consistently favorable reviews from both students and fellow faculty members from the time of his arrival at the College until 2015. During Crosby's service as Chair, he taught several classes, published extensively, secured a number of prestigious research grants, mentored several graduate and post-doctoral students, and served in various capacities with organizations aligned with his research interest in sexual health. Despite Crosby's achievements and reputation, however, the University's Office of Institutional Equity and Equal Opportunity (OIEEO), at the request of Provost Timothy Tracy, began in June 2015 to investigate reports of Crosby's inappropriate behavior.

         Interim Dean Wayne Sanderson placed Crosby on paid administrative leave during the pendency of the investigation. Crosby was informed of the OIEEO investigation and of the decision to place him on administrative leave during a June 3, 2015 meeting with Sanderson. While on administrative leave, Crosby was not permitted to be present on campus, to interact with faculty, staff, or students, or to retaliate against anyone for participating in the investigation. Although Crosby received a letter from Sanderson communicating the terms of his administrative leave, he was not informed of the specific allegations against him during this time. The letter did contain a promise, however, that Crosby would have an opportunity to respond to the allegations.

         Terry Allen, the Director of the OIEEO, was primarily responsible for conducting the investigation into the allegations against Crosby. On June 17, 2015, Crosby met with Allen to discuss the investigation. Allen did not identify Crosby's accusers; he instead asked Crosby generally about the allegations, which Crosby denied. One week later, Allen submitted a report on the results of his investigation to Tracy and William Thro, General Counsel for the University of Kentucky.

         Allen's report stated that, after conducting a number of interviews with faculty and staff, he observed "a disproportionate number of negative remarks . . . regarding Dr. Crosby's behavior." Representative examples include descriptions of Crosby as "[v]olatile, " "explosive, " "disrespectful, " "very condescending, " and "out of control." Allegations that Crosby was prone to angry outbursts and retaliatory actions also appear more than once. The report included an allegation that Crosby stated that the Associate Dean for Research had been appointed "because she is a woman, genitalia." Finally, the report contained claims that the Department's performance was suffering as a result of Crosby's temper and hostility towards other departments. The report ultimately recommended that Crosby be removed from his position as Chair of the Department of Health Behavior, noting that:

Based on a thorough investigation, the Office of Institutional Equity and Equal Opportunity finds Richard A. Crosby's behavior as Chair of the Department of Health Behavior in violation of the University's Governing Regulation Ethical Principles:
. Mutual respect and human dignity
. Personal and institutional responsibility and accountability

. Exhibits personal integrity, honesty, and responsibility in all actions

. Provides an environment of mutual respect, impartiality, and collaboration

         On July 2, 2010, Provost Tracy forwarded a copy of the report to Dean Sanderson, along with a letter informing Sanderson that he concurred with Allen's recommendation to remove Crosby from his chairmanship. Tracy also authorized Sanderson to determine the "work arrangement" that would be most beneficial to the College. On July 7, 2015, Sanderson forwarded a copy of the report to Crosby, along with a letter informing Crosby that his appointment as Chair was terminated, effective immediately. Sanderson's letter also stated that Crosby's tenured faculty appointment in the Department of Health Behavior was to remain in effect, but that his office and administrative support would be moved to the Gerontology Department.

         Crosby filed two documents with General Counsel Thro on July 14, 2015, demanding that the University afford him his procedural rights under proposed Governing Regulation XX, including "an evidentiary hearing before a properly-convened and impartial Faculty Hearing Panel." He also requested that Allen's report either be stricken in its entirety or returned to Allen for the inclusion of a more definite statement of the charges against him and a disclosure of the identities of his accusers. Crosby further stated that, if University officials refused to implement the procedures set forth under proposed Governing Regulation XX, he wished to invoke the administrative remedies available under the already enacted Governing Regulation I. Finally, Crosby informed the University that he would "proceed to a court of competent jurisdiction to address the systematic and intentional denial of his property without due process of law" if his appeal should prove unsuccessful.

         Thro sent a letter to Crosby the following day, informing Crosby that his reliance on the rights conferred by proposed Governing Regulation XX was inappropriate because that regulation had not yet been adopted by the University. Crosby was instead told that his appeal would be handled by Dr. Eli Capilouto, President of the University, under the existing Governing Regulation I, Section F. Capilouto's chosen appellate procedure was to commission "two distinguished senior faculty members [with] extensive experience as administrators to make an independent assessment of the overall climate in Dr. Crosby's department." Crosby's counsel sent a letter replying to Thro on July 16, 2015, objecting to the University's refusal to ...


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