David Porter v. F. Tyler Sergent ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0432n.06
No. 23-5944
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 29, 2024
) KELLY L. STEPHENS, Clerk
DAVID B. PORTER,
)
Plaintiff-Appellant, )
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
)
F. TYLER SERGENT; BEREA COLLEGE, DISTRICT OF KENTUCKY
)
Defendants-Appellees. )
OPINION
)
Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
KETHLEDGE, Circuit Judge. Professor David Porter sued his former employer, Berea
College, for employment discrimination, retaliation, and breach of contract, and he sued his former
colleague, Professor F. Tyler Sergent, for defamation, portrayal in a false light, and retaliation.
The district court granted summary judgment in favor of the defendants on all claims. We affirm
in part and reverse in part.
I.
In describing the facts for purposes of summary judgment, we view the record in the light
most favorable to Porter. Sloat v. Hewlett-Packard Enter. Co., 18 F.4th 204, 207 (6th Cir. 2021).
David Porter, a white male in his late 60s, was a tenured professor of psychology and
general studies at Berea College from 2005 until September 2018. In March 2017, a younger
female colleague, Wendy Williams, initiated a Title IX complaint against the then-chair of the
psychology department, Wayne Messer, for allegedly creating a hostile-work environment for
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women. Two of Williams’s female colleagues later joined the complaint. Porter served as
Messer’s advisor throughout the grievance proceedings. In September 2017, a disciplinary board
found Messer guilty, and Berea’s president, Lyle Roelofs, removed Messer as department chair.
Soon afterward, in email exchanges with President Roelofs and Dean Chad Berry, and in an open
letter to campus, Porter said that the proceedings against Messer had been flawed and unfair.
In February 2018, for one of his psychology courses, Porter created a survey to measure
“community perceptions and attitudes about academic freedom, freedom of speech, and hostile
work environments under civil rights law.” The survey contained hypothetical scenarios based on
Porter’s observations of Messer’s Title IX investigation. But the survey did not include any names,
and its instructions disclaimed any “relationship between these scenarios and actual events, either
here at Berea College or elsewhere.” Porter shared the survey with a few of his colleagues,
including Messer, who worried that it might be “highly inflammatory.”
Porter later emailed the survey to all the students and faculty at Berea, which stirred
controversy on campus. Williams posted on Facebook that she was “one of the not anonymous
targets of [the] survey,” and that the scenarios were a “biased portrayal” of her Title IX complaints.
Dean Berry asked Porter to remove the survey from the internet, and Porter later sent a campus-
wide email in which he apologized for the survey’s flaws and for its negative impact on Berea’s
students and faculty.
On February 22, 2018, President Roelofs sent Porter a letter notifying him that Dean Berry
had initiated disciplinary proceedings to seek Porter’s dismissal. Attached to the letter was a
“statement of grounds for dismissal,” which asserted (among other things) that Porter’s survey had
harmed his students and colleagues. The letter itself cited a provision of Berea’s Faculty Manual,
which said faculty can be terminated for cause if they engage in “personal conduct which
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demonstrably hinders fulfillment of professional responsibilities.” In the letter, Roelofs suspended
Porter with pay and told him to stay off campus except to attend disciplinary hearings.
F. Tyler Sergent is a history professor at Berea, a faculty advisor to the Student Government
Association (SGA), and Williams’s husband. After Porter’s suspension, the SGA voted to give
Porter its annual Student Service Award. Sergent expressed his “vehement objection” to that
decision in a series of emails to three students on the SGA Executive Committee and to another
faculty advisor, Rachel Vagts. In the first email, Sergent said Porter should not receive the award
because Porter had defended Messer’s “racist, sexist, and homophobic comments” in the Title IX
case. Sergent also accused Porter of making “sexist, disparaging remarks” about his female
colleagues, and of falsely “disclosing personal medical records of one”—namely Sergent’s wife,
Williams. Sergent also said the students supporting Porter were “victims of manipulation by an
unethical, unrepentant, academically dishonest person who is in process of rightly being fired from
Berea College.”
Vagts, the other faculty advisor, replied in agreement and copied Yabsira Ayele, another
student on the SGA executive committee. But Ayele defended the SGA’s decision, emailing the
group that Porter was worthy of the award because of “his excellence in service to students.”
Sergent responded that he was “not inviting a debate with you or anyone else who would defend
the unethical action of David Porter—they are indefensible.” Ayele replied that he was entitled to
his opinion; but Sergent responded that Ayele was not entitled to an opinion on this issue, and he
warned Ayele “against burning bridges this early in your education, particularly for the wrong side
of the cause.” The SGA soon held a meeting and rescinded the award.
In April 2018, after a two-day hearing, a disciplinary committee led by Dean Berry
recommended that Porter be terminated. President Roelofs later accepted the committee’s
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recommendation and fired Porter. Thereafter Porter brought this suit, which the defendants
removed from state court to federal. After discovery, the district court granted summary judgment
in favor of the defendants. This appeal followed.
II.
We review the district court’s grant of summary judgment de novo, viewing the evidence
in the light most favorable to Porter. Sjostrand v. Ohio State Univ., 750 F.3d 596, 599 (6th Cir.
2014). Summary judgment is proper only when the record shows that there is no genuine issue as
to any material fact. Id. “An issue of fact is ‘genuine’ if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Id.A.
Porter sued Berea College for age, race, and sex discrimination, and for illegal retaliation,
all in violation of the Age Discrimination in Employment Act (ADEA), Title VII, and Title IX.
He also brought state-law claims against Berea for breach of his employment contract.
1.
We begin with Porter’s discrimination claims, in which he says Berea fired him because
he is an older, white male. A plaintiff may raise a genuine issue of material fact for such a claim
by offering either direct or indirect evidence of discrimination. See Willard v. Huntington Ford,
Inc., 952 F.3d 795, 806 (6th Cir. 2020). Direct evidence “proves the existence of a fact without
requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th
Cir. 2004). Evidence requires no inferences—and is thus “direct”—only if it pertains to the same
supervisor and the same decision at issue in the plaintiff’s claim. Bledsoe v. Tenn. Valley Auth.
Bd. of Dirs., 42 F.4th 568, 581 (6th Cir. 2022).
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Porter cites two pieces of putative direct evidence here. First, he points to a comment that
Williams allegedly made during a faculty hiring-committee meeting—namely, that “[t]he last
thing we need in this department is any more old white guys.” But Williams was not Porter’s
supervisor, and that comment did not pertain to his firing. Second, Porter cites an alleged comment
by Dean Berry, namely that he would only hire “black or brown” faculty members. But that
statement is not about Porter or about Berea’s decision to fire him. Hence Porter lacks direct
evidence of discrimination.
That leaves Porter’s indirect evidence of discrimination, which we analyze using a burden-
shifting regime. Under that regime, the plaintiff must first present a prima facie case of
discrimination. If he does, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its decision. And if the employer does so, the burden shifts back to
the employee to prove that the employer’s stated reason was a pretext for unlawful discrimination.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
To make a prima facie case of discrimination, a plaintiff must show, as relevant here,
“circumstances that support an inference of discrimination.” Blizzard v. Marion Tech. Coll., 698
F.3d 275, 283 (6th Cir. 2012). A plaintiff makes that showing if he presents evidence that his
employer has “treated similarly situated, non-protected employees more favorably” than he was
treated. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 522 (6th Cir. 2008).
Here, to that end, Porter says that Berea treated older, white-male professors differently
than it did younger, female professors when members of the two groups refused to attend
mandatory meetings. Specifically, Porter offers evidence that Dean Berry disciplined two other
older, white-male professors—by docking their pay and denying them promotions—for refusing
to attend a mandatory diversity training; whereas, when three younger, female professors who
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brought the Title IX complaint against Messer all refused to attend a mandatory meeting with
Porter and Messer, Dean Berry disciplined them not at all.
The conduct of these two groups of professors was indeed similar, and their treatment by
Dean Berry notably dissimilar. Yet the district court accepted as a “mitigating circumstance[]” the
female professors’ claim that the meeting with Porter and Messer “would have involved coming
face-to-face with a man they had accused of creating a hostile workplace and the man who had
advised him.” But on that point the court failed to view the facts in the light most favorable to
Porter. For the older, white-male professors had reasons of their own for refusing, quite
deliberately, to attend their meeting; and yet the district court adopted as “mitigating” the reasoning
offered by the other group of professors—without showing any of the same solicitude for the group
aligned with Porter. Moreover, the point of the comparator inquiry is to draw an inference
regarding the decisionmaker’s motivation for the adverse employment action, not the employee’s.
The problem with Porter’s evidence, however, is that Porter himself was a member of
neither comparator group. Porter was not one of the white, male professors disciplined for refusing
to attend a meeting. And that means the comparison is not relevant for purposes of making his
prima facie case. See Romans v. Michigan Dep’t of Hum. Servs., 668 F.3d 826, 837-38 (6th Cir.
2012). Nor has Porter offered other indirect evidence of discrimination. Berea was therefore
entitled summary judgment on his discrimination claims.
2.
We next consider Porter’s retaliation claim under Title IX, for which we apply the same
burden-shifting regime. Doe v. Univ. of Kentucky, 111 F.4th 705, 716 (6th Cir. 2024). To establish
a prima facie case for this claim, Porter must show that he engaged in “protected activity”; that
Berea knew about that activity; that he suffered an “adverse school-related action”; and that
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“a causal connection exists between the protected activity and the adverse action.” Bose v. Bea,
947 F.3d 983, 988 (6th Cir. 2020).
To amount to “protected activity” under Title IX, “a complaint must specifically accuse a
recipient of engaging in intentional sex discrimination[.]” Goldblum v. Univ. of Cincinnati,
62 F.4th 244, 253 (6th Cir. 2023). Here, as protected activity, Porter cites his criticisms of the
disciplinary proceedings against Messer. But those criticisms concerned the fairness of those
proceedings; Porter nowhere accused anyone of discrimination based on Messer’s sex. Porter
therefore did not make a prima facie case for retaliation under Title IX. See Jackson v. Birmingham
Bd. of Educ., 544 U.S. 167, 174 (2005). Summary judgment was proper.
3.
We make shorter work of Porter’s claims against Berea for breach of contract, to which the
court devoted fourteen pages of patient analysis before granting summary judgment in favor of the
defendants. We affirm that grant for substantially the reasons stated by the district court: the
relevant agreement (namely the Faculty Manual and Employee Handbook) did not incorporate any
federal constitutional guarantees; Porter did not explain in his summary-judgment briefing (and
has not explained here) exactly what provisions in the Manual and Handbook he thought Berea
had violated, and why; and McAdams v. Marquette University, 914 N.W.2d 708 (Wis. 2018), has
little if any relevance here.
B.
That leaves Porter’s claims against Sergent for defamation, portrayal in a false light, and
retaliation under Kentucky law. We affirm the district court’s grant of summary judgment as to
the false-light and retaliation claims for substantially the reasons stated by the district court. But
we disagree with the court’s grant of summary judgment as to the defamation claim.
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Porter claims that Sergent defamed him in emails to four student members of the SGA and
to Sergent’s co-advisor. To survive summary judgment on a defamation claim, a plaintiff must
show that the defendant made a false statement about him; that the defendant negligently or
intentionally communicated the statement to a third party; and that doing so caused injury to the
plaintiff’s reputation. See Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 273 (Ky. Ct. App.
1981). Courts will presume that certain kinds of statements caused injury to a plaintiff’s reputation
based on their content alone, which makes them defamatory per se. See Toler v. Sud-Chemie, Inc.,
458 S.W.3d 276, 282 (Ky. 2014). Among those kinds of statements, in Kentucky, is a false
statement that a person is “unfit[] to perform a job.” Id.In some contexts, however, Kentucky courts apply a “qualified privilege” of “common
interest.” Id. at 286. That privilege applies when the message’s recipients share a “corresponding
interest” with the speaker. Id. at 282. The privilege’s purpose is to protect even defamatory per
se statements when “the societal interest in the unrestricted flow of communication is greater than
the private interest” against being defamed. Id. When a qualified privilege attaches, “even ‘false
and defamatory statements will not give rise to a cause of action unless maliciously uttered.’”
Harstad v. Whiteman, 338 S.W.3d 804, 813 (Ky. Ct. App. 2011) (citation omitted). The privilege
negates the presumption of injury for statements that are defamatory per se, and the burden shifts
back to the plaintiff to prove that the statements were made with “malice,” which means
“malevolence or ill will.” Toler, 458 S.W.3d at 283. The privilege is “[n]ot an absolute defense,”
but its “protection can be lost through unreasonable actions amounting to abuse.” Id.
On April 8, 2018, Sergent sent an email to three student members of the SGA’s Executive
Committee and his fellow faculty advisor, Rachel Vagts, in which Sergent expressed his
“vehement objection” to the SGA’s decision to give Porter the service award, and asked the group
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to “share this with everyone else on the executive committee for tonight’s meeting.” In the email,
Sergent objected to Porter’s defense of Messer in the Title IX proceedings, accused Porter of
making “sexist, disparaging remarks” about the female faculty members who had brought the Title
IX complaint against Messer, and asserted that Porter had “disclos[ed] personal medical records
of one”—referring to Sergent’s wife, Williams. Sergent then listed what he called the “reasons
for which Porter has been suspended and is in the process of being fired,” including “academic
dishonesty,” “gross ethical violations,” “incompetence,” and “manipulation of students.” Sergent
added that the students who nominated Porter for the award were “victims of manipulation by an
unethical, unrepentant, academically dishonest person who is in process of rightly being fired from
Berea College.” He concluded that the “SGA can and ought to do better.”
Student Yabsira Ayele replied with a defense of the SGA’s decision. Sergent responded,
in relevant part:
I am not inviting a debate with you or anyone else who would defend the unethical
action of David Porter—they are indefensible just like racism and any other of form
discrimination—or any other faculty member who has caused harm to other
members of our community. Rewarding those actions and the harm coming from
them is not the Berean way. The administration has good reasons for suspension
and the case will be adjudicated.
I gave my advice and detailed my reasons for that advice. I have no doubt that you
believe you are doing what is right. But there are people giving you advice who
know a great deal more about this situation than you do.
Sergent also warned, “you do not want to be among a group of student leaders on the wrong side
of Berea’s history. Therefore, I urge the SGA to heed our advice.”
Ayele responded, “You are entitled to your opinions and I am entitled to mine.” He wrote
that he was “disappointed” with Sergent’s position and added, “[t]o threaten me is unethical. I do
not know the entire situation and you don’t either.” Sergent then replied, in relevant part:
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Until you actually know something about the situation, there is no basis for debate
or dialogue. I voiced my advice as part of my role as elected faculty
advisor . . . . Clearly you have no interest in my advice or the advice of your other
faculty advisor, both of whom know much more than you about a great many things
directly related to this situation . . . .
One last bit of advice: I would caution you against burning bridges this early in
your education, particularly for the wrong side of a cause.
Do not email me again regarding this issue.
Dr. Sergent
The parties agreed at summary judgment that these emails are defamatory per se, which
the district court noted “makes good sense” because they tended to “prejudice” Porter in his role
as a professor. See Shields v. Booles, 38 S.W.2d 677, 680 (Ky. 1931). We agree: Sergent’s
statements that Porter was “unethical,” “academically dishonest,” “incompetent,” and guilty of
“manipulation of students” bear directly on Porter’s “unfitness” to perform his job. Toler, 458
S.W.3d at 282.
Sergent argues these statements were either true or non-actionable opinion—asserting that
his email simply restated Berea’s grounds for dismissal, as attached to President Roelof’s February
22, 2018 letter to Porter. But that letter nowhere called Porter “incompetent” or guilty of
“manipulation of students.” Nor has Sergent identified any Kentucky case that holds a similar
statement to be non-actionable opinion. Porter has thus made enough of a showing for each of the
elements of defamation to survive summary judgment.
The district court nonetheless held that the emails were protected by the common-interest
privilege—because, the court said, Sergent shared with the email’s recipients an interest in giving
the SGA award to a deserving person. But the court seemed to overlook that the privilege is “[n]ot
an absolute defense.” Toler, 458 S.W.3d at 283. For the privilege is negated if the speaker
“abuse[d]” the privilege or acted with “malevolence or ill will.” Id. And whether a speaker has
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done so is a question of fact for the jury. Fortney v. Guzman, 482 S.W.3d 784, 790 (Ky. Ct. App.
2015).
A jury could easily make those findings here. For example, given that Sergent’s wife,
Williams, was a party to the very proceedings in which Sergent said that Porter had made “sexist”
(etc.) comments, a jury could reasonably find that Sergent’s “vehement objection” to the SGA’s
decision was fueled by more than a concern that the best possible recipient be chosen for the
Student Service Award. A jury could likewise find that Sergent’s remarks toward Ayele—an
undergraduate student—were abusive. Indeed, Sergent himself admitted that another colleague,
Dr. Smith, had criticized Sergent’s “improper behavior” and his “attempts to intimidate” Ayele.
Smith also questioned Sergent’s “judgment and fitness to continue as the SGA faculty advisor,”
and said that Sergent was “clearly too close to the situation to be objective.” Sergent also admitted
that—when he saw Porter on the street about 18 months after the email exchange—Sergent had
shouted, “F— you, Dave” without provocation. Viewing all this evidence in the light most
favorable to Porter, especially, a jury could find all the facts necessary for Porter to prevail on his
defamation claim. The district court erred in concluding otherwise.
We also observe, for purposes of remand, that surely not every shared interest is weighty
enough to allow one person, as a matter of law, to say anything he likes in defamation of another.
And the interest the court cited here—choosing the recipient of a student award—strikes us as
questionable, at least as measured against the statements at issue here. We invite the court to
revisit that determination (with the benefit of more focused briefing than we have here) on remand.
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* * *
The district court’s judgment is affirmed, except that its grant of summary judgment in
favor of Sergent on the defamation claim is reversed. The case is remanded for further proceedings
consistent with this opinion.
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