Trudeau v. Univ of N TX

Case: 20-40532 Document: 00515931968 Page: 1 Date Filed: 07/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 9, 2021
No. 20-40532
Lyle W. Cayce
Clerk
Justin Trudeau,
Plaintiff—Appellant,
versus
University of North Texas, By and Through its Board of Regents;
Eve Bell, in her Individual and Official Capacities; Brian
Richardson, in his Individual and Official Capacities; Christina
Brodie, in her Individual and Official Capacities; David Holdeman,
in his Individual and Official Capacities; Steven Cobb, in his Individual
and Official Capacities,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:14-cv-00723
Before King, Dennis, and Ho, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Plaintiff-appellant Justin Trudeau was disciplined by his employer,
defendant-appellee University of North Texas, following a Title IX
investigation that substantiated allegations of sexual harassment. Trudeau
filed suit against the university, alleging, in relevant part, violations of the
First Amendment, the Due Process Clause of the Fourteenth Amendment,
and Title IX—claims which the district court dismissed with prejudice.
Trudeau now appeals. We AFFIRM.
I.
Justin Trudeau is a tenured associate professor at the University of
North Texas (“UNT”), where he teaches graduate and undergraduate
courses in the department of communication studies. In the Fall semester of
2017, Trudeau taught a graduate course, Seminar in Adaption and Staging.
During this course, students were assigned a book titled A Director Prepares,
the third chapter of which “referred to ‘eroticism.’” In January 2018, after
the class had concluded, Trudeau was made aware of an official investigation
into his conduct in the class.
The allegations investigated included the following incidents that
allegedly occurred over the course of the semester:
 Trudeau informed the class that “[n]o one gets through my class
without getting naked.”
 Trudeau asked a student director if anyone in the class was pregnant,
and when she responded no, he stated “[i]t’s still early in the
semester.”
 After a scene in which two female students kissed, Trudeau
commented “that scene was hot.”
 Trudeau informed a student during the staging of a play that she had
“fuck me eyes.”
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 During a performance about a cheating lover being poisoned, Trudeau
stated the performance was “very erotic in every sense of the word.”
 When a student was preparing for a performance wearing a yellow
shirt cut into strips over a black top and jeans, Trudeau stated that “a
real performer would just wear the yellow shirt.”
 During a rehearsal, two students informed the student director that
they were uncomfortable simulating sex on stage. Trudeau told the
director “you would be a genius if you could get your classmates to
simulate sex during the performance” and joked that he would give
her an “A” if the performers were nude.
 During a class, Trudeau called one student a “psychopath” and
another a “pervert.”
UNT sustained several of the allegations against Trudeau, finding
that he had engaged in sexual harassment on multiple occasions in violation
of UNT policy. Trudeau’s punishment included a written reprimand, loss of
merit pay as a result of low teaching scores for that semester, and ineligibility
for summer teaching in 2019.
In October 2019, Trudeau brought suit against UNT, alleging
retaliation under Title IX, denial of due process and equal protection under
the Fourteenth Amendment, violation of the First Amendment, and breach
of contract. Trudeau later amended his complaint, adding defendants Eve
Bell, Christina Brodie, and Brian Richardson, and dropping his breach of
contract claim. Following a motion to dismiss filed by defendants, the district
court dismissed Trudeau’s Title IX, due process, and equal protection claims
without prejudice, and his First Amendment claim with prejudice. After
Trudeau filed a second amended complaint, the district court dismissed his
Title IX, due process, and equal protection claims with prejudice. Trudeau
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now appeals the dismissal of his retaliation claim under Title IX1 and his First
Amendment and due process claims.2
II.
We review de novo a dismissal under Rule 12(b)(6). Ruiz v. Brennan,
851 F.3d 464, 468 (5th Cir. 2017). “To survive a Rule 12(b)(6) motion to
dismiss, the complaint does not need detailed factual allegations, but it must
provide the plaintiff’s grounds for entitlement for relief—including factual
allegations that, when assumed to be true, raise a right to relief above the
speculative level.” Id. (quoting Taylor v. City of Shreveport, 798 F.3d 276, 279
(5th Cir. 2015)).
III.
A. Retaliation Under Title IX
“Title IX prohibits sex discrimination by recipients of federal
education funding.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173
(2005). The Supreme Court has held that the private right of action implied
by Title IX includes claims of retaliation “where the funding recipient
retaliates against an individual because he has complained about sex
1
Trudeau also offered allegations that seemed to set forth an erroneous outcome
claim under Title IX. This claim was considered and dismissed by the district court.
Trudeau makes no mention of that aspect of his Title IX claim on appeal and thus forfeits
that issue. See Coleman v. United States, 912 F.3d 824, 836 n.14 (5th Cir. 2019) (reaffirming
that failure to adequately brief an issue on appeal constitutes forfeiture of that argument).
2
Trudeau does not brief any argument relating to the dismissal of his equal
protection claim. Nor does he address, beyond a single conclusory sentence, the district
court’s dismissal of his constitutional claims against UNT and against Bell, Brodie, and
Richardson in their official capacities on the basis of sovereign immunity. Accordingly,
these issues are forfeited. See Coleman, 912 F.3d at 836 n.14.
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discrimination.” Id. at 171.3 To establish a prima facie case of retaliation under
Title IX, a plaintiff must show that (1) he engaged in a protected activity; (2)
he was subjected to an adverse employment action, and (3) “a causal link
exists between the protected activity and the adverse employment action.”
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Davis v. Dall.
Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004)); see also Collins v.
Jackson Pub. Sch. Dist., 609 F. App’x 792, 795 (5th Cir. 2015) (per curiam)
(citing the Willis v. Cleco Title VII retaliation standard for a Title IX claim
because both statutes have similarly worded provisions and are afforded
similar interpretation); Taylor-Travis v. Jackson State Univ., 984 F.3d 1107,
1119 n.43 (5th Cir. 2021) (same).
This case turns on the third prong—the causal link between
Trudeau’s participation in the investigation and the adverse employment
action. In the comparable context of Title VII retaliation claims, the Supreme
Court has applied a but-for causation standard. Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013). Accordingly, we consider whether
Trudeau’s participation was a but-for cause of his punishment. Trudeau cites
a litany of allegations that he claims support such a causal link. In particular,
Trudeau alleges that he was not able to “properly respond or otherwise
defend himself” in the investigation; he was incorrectly told that as a
“straight white male” he did not have a protected status and thus could not
3
The parties debated below whether Trudeau, as the subject of the Title IX
investigation rather than a complainant, could even bring such a retaliation claim. And
there is reason to suspect that a respondent in a Title IX investigation does not fall under
the umbrella of the implied right of action recognized by the Supreme Court in Jackson. See
Jackson, 544 U.S. at 173 (“Retaliation against a person because that person has complained
of sex discrimination is another form of intentional sex discrimination encompassed by Title
IX’s private cause of action.”) (emphasis added). Trudeau maintains that his protected
activity was his participation in the investigation. However, we need not consider the issue
because Trudeau nonetheless fails to state a retaliation claim.
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pursue claims relating to the investigation; he was given the wrong form for
submitting a complaint; he was required to appeal to the same person who
had been designated as the complainant; the university “desire[d] to
advocate for the female students over men”; the university used information
provided by Trudeau, “twisted it, and reached a conclusion based on the
information . . . provided”; and the university failed to maintain the
confidentiality required by its policies. Overall, Trudeau complains that the
investigation was “predetermined, improper, deficient, and retaliatory.”
These grievances with the investigation process do not add up to a
claim of retaliation. Specifically, Trudeau has not plausibly alleged that the
university punished him at the conclusion of the investigation because
Trudeau participated in the investigation. For comparison, in another
retaliation case similarly brought by the subject of a Title IX investigation
rather than a complainant, the Seventh Circuit considered whether the
plaintiff had alleged facts that indicated the university “came to its
conclusion because it wanted to punish [the plaintiff] for defending himself
at the proceeding.” Doe v. Columbia College Chi., 933 F.3d 849, 857 (7th Cir.
2019). The court found that he had not, concluding that the complaint
demonstrated only that the university had “investigated the complaint,
considered the evidence presented by [the plaintiff], and concluded that he
committed some of the acts that [the student] alleged.” Id. The same
deficiencies sink Trudeau’s retaliation claim here. Though Trudeau has
identified alleged flaws in the investigation, he has not specified a causal link
between his participation in the investigation and the punishment that
resulted from it.
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Trudeau attempts to salvage his pleadings by asking the court to infer
causation based on the employer’s knowledge of his protected activity. 4 We
have indeed held that there must be evidence that “the decisionmakers had
knowledge of his protected activity” and that, absent such awareness, it
cannot be said that “the decisionmakers might have been retaliating against
the plaintiff for having engaged in that activity.” Manning v. Chevron Chem.
Co., 332 F.3d 874, 883 n.6 (5th Cir. 2003). However, even assuming arguendo
that knowledge alone could be enough to infer causation on these facts,
Trudeau fails to plausibly allege that UNT’s “decision to [punish] was based
in part on knowledge of [his] protected activity.” Medina v. Ramsey Steel Co.,
238 F.3d 674, 684 (5th Cir. 2001) (emphasis added). This theory thus suffers
from the same deficiencies discussed above.
Based on the foregoing, we affirm the district court’s dismissal of
Trudeau’s Title IX retaliation claim.
B. First Amendment Retaliation
To state a § 1983 claim for violation of the First Amendment right to
free speech, employees of a public university must allege that “(1) they were
disciplined or fired for speech that is a matter of public concern, and (2) their
interest in the speech outweighed the university’s interest in regulating the
speech.” Buchanan v. Alexander, 919 F.3d 847, 853 (5th Cir. 2019).5 The first
4
Trudeau also argues for the first time on appeal that the close temporal proximity
between his protected activity and the adverse employment action is alone enough to
establish causation. As this argument was not raised before the district court, it is forfeited.
See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th Cir. 2017) (“Failure to raise a claim
to the district court ‘constitutes a forfeiture, not a waiver, of that right for the purposes of
appeal.’”) (quoting United States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997)).
5
These elements are drawn from the long-established Pickering test. See Pickering
v. Bd. of Educ., 391 U.S. 563, 568 (1968). The district court below considered whether the
Supreme Court’s more recent opinion in Garcetti v. Ceballos, 547 U.S. 410, 413 (2006),
which added the threshold question of whether a government employee’s speech was made
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element involves a question of law and “[w]hether an employee’s speech
addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record.” Id.(quoting Connick v. Myers, 461 U.S. 138, 147–48 (1983)). In particular, speech
may involve a matter of public concern when it involves “an issue of social,
political, or other interest to a community.” Id. (quoting Adams, 640 F.3d at
564). By contrast, “[w]hen a public employee speaks in his capacity as an
employee and on personal matters, rather than in his capacity as a citizen on
a matter of public interest, his speech falls outside the protection of the First
Amendment.” Id. For example, in Buchanan v. Alexander, we held that an
education professor’s “use of profanity and discussion of her sex life and the
sex lives of her students” did not involve a matter of public concern as it “was
not related to the subject matter or purpose of training Pre-K–Third grade
teachers.” Id.
Trudeau fails plausibly to allege that his comments involved a matter
of public concern. Trudeau’s complaint states that a book assigned to his
students, A Director Prepares, devoted a chapter to the subject of
“eroticism”—among six other subjects covered—and he broadly alleges that
he was required to “talk about [sensual, erotic, or sexual themes] in his role
as a teacher.” On appeal, he clarifies that the students’ performances drew
their themes from the course materials, which included the book, A Director
pursuant to his official duties, applies in the academic context. Indeed, some courts have
declined to apply Garcetti in the “academic context of a public university.” Adams v. Trs.
of the Univ. of N.C.–Wilmington, 640 F.3d 550, 562 (4th Cir. 2011); see also Demers v. Austin,
746 F.3d 402, 412 (9th Cir. 2014) (“We conclude that Garcetti does not—indeed,
consistent with the First Amendment, cannot—apply to teaching and academic writing
that are performed ‘pursuant to the official duties’ of a teacher and professor.”). However,
under either the Pickering or Garcetti test, a public employee must have spoken on a matter
of public concern, and, as we conclude that Trudeau did not, we need not consider which
test to apply.
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Prepares. However, neither the first nor the second amended complaint
makes any effort to connect that single chapter on eroticism in a single book
to the specific statements for which he was punished. Moreover, it is plain
that the alleged comments relating to students’ sex lives, encouraging nudity
in class, and commenting on students’ mental health, did not involve a matter
of public concern. Put simply, Trudeau does not plausibly allege that any of
these statements—made over the course of four months—was specifically
“germane to the subject matter” or more generally involved “an issue of
social, political, or other interest to a community.” Id. at 853 & n.20 (first
quoting Adams, 640 F.3d at 564; and then quoting Bonnell v. Lorenzo, 241
F.3d 800, 820 (6th Cir. 2001)). As a result, Trudeau’s First Amendment
claim fails.6
C. Due Process Claim
“To state a Fourteenth Amendment due process claim under § 1983,
‘a plaintiff must first identify a protected life, liberty or property interest and
then prove that governmental action resulted in a deprivation of that
interest.’” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting
Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001)). While a tenured
professor, such as Trudeau, has a protected property interest in his continued
employment, “the due process clause does not protect . . . specific job duties
or responsibilities absent a statute, rule, or express agreement reflecting an
6
To the extent Trudeau argues on appeal that UNT’s sexual harassment policy
was unconstitutionally vague, that claim, set forth in his First Amended Complaint, fails.
The First Amended Complaint contains only a single conclusory reference to the vagueness
of the policy without any factual allegations—or even the text of the sexual harassment
policy itself—that would support such a claim. See Taylor v. Books A Million, Inc., 296 F.3d
376, 378 (5th Cir. 2002) (“[C]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.”) (quoting S. Christian
Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001)).
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understanding that he had a unique property interest in those duties or
responsibilities.” Id.; see also Davis v. Mann, 882 F.2d 967, 973 n.16 (5th Cir.
1989) (“[U]nless the state ‘specifically creates a property interest in a
noneconomic benefit—such as a particular work assignment—a property
interest in employment generally does not create due process property
protection for such benefits.’”) (quoting Jett v. Dall. Indep. Sch. Dist., 798
F.2d 748, 754 n.3 (5th Cir. 1986), aff’d in part, vacated in part and remanded
on other grounds, 491 U.S. 701 (1989)). Put another way, Trudeau is “required
to point to some state or local law, contract, or understanding that created a
property interest.” Gentilello, 627 F.3d at 545. We have thus stated clearly
that “a university’s failure to follow its own internal rules does not always
establish to a due process violation.” Wigginton v. Jones, 964 F.3d 329, 338
(5th Cir. 2020); see also Martin v. Mem’l Hosp. at Gulfport, 130 F.3d 1143, 1147
(5th Cir. 1997) (“[A] property interest falling under due process protections
must be established by reference to some outside source—such as state law
or contract.”).
Trudeau complains that UNT violated his procedural due process
rights by failing to adhere to its own policies and procedures during the Title
IX investigation. In particular, Trudeau alleges that UNT prevented him
from adequately responding to new charges, failed to give him adequate
notice of the charges against him, caused him to forgo an appeal, failed to
remove or replace an administrator with a conflict of interest, and took
corrective action prior to the completion of the appeal. Trudeau cites a
February 27, 2006 offer letter and accompanying information sheet as
binding UNT to follow the policies and procedures set forth in its Policy
Manual and Faculty Handbook.7
7
Specifically, Trudeau cites language in the offer letter stating that the letter and
attached information sheet served “as assurance of this institution’s commitment to your
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“Texas law ‘general[ly] reject[s] the claim that employment manuals
issued unilaterally by an employer can per se constitute written employment
contracts and create specific limitations which take the cases out of the at-
will doctrine.’” Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th
Cir. 1991) (quoting Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1198 (5th
Cir. 1987) (applying Texas law)). Moreover, this court has held that, “absent
any express reciprocal agreement . . . [,] personnel policies or employee
handbooks ‘constitute no more than general guidelines and do not create
contractual rights in employees.’” Heggemeier v. Caldwell, 826 F.3d 861, 871
(5th Cir. 2016) (quoting Garcia v. Reeves Cnty., 32 F.3d 200, 203–04 (5th Cir.
1994)); see also Spuler v. Pickar, 958 F.2d 103, 106 (5th Cir. 1992) (“Texas
state courts . . . uniformly embrace the notion that employee handbooks or
manuals, standing alone, ‘constitute no more than general guidelines,’ absent
express reciprocal agreements addressing discharge protocols.”).
In this case, Trudeau fails to identify such an express reciprocal
agreement in the 2006 letter or accompanying information sheet binding
UNT to follow the policies in its employee manual or handbook.
Accordingly, Trudeau has not identified a property interest, created by
contract, in the procedural protections set out in the employee manual or
handbook.8
appointment in accordance with the described terms” and that “[n]o previous written or
oral commitment will be binding on the University except as specified in this letter and
attached information sheet.” In addition, the offer letter states that “the provisions [of the
supplementary information sheet] appropriate for you will govern your appointment.”
8
Trudeau also claims that he suffered a due process deprivation as a result of
graduate students refusing to associate with him. However, he attempts to analogize to a
case in which the university prohibited a professor from serving as a student advisor as part
of its official sanctions. See Smock v. Bd. of Regents of the Univ. of Mich., 353 F. Supp. 3d 651,
655 (E.D. Mich. 2018). No such prohibition was included in the punishments levied by
UNT. Moreover, at bottom, Trudeau has failed to allege a contractual right to that job duty.
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IV.
Based on the foregoing, we AFFIRM the district court’s dismissal
of Trudeau’s Title IX, First Amendment, and due process claims.
See Gentilello, 627 F.3d at 544 (“[T]he due process clause does not protect . . . specific job
duties or responsibilities absent a statute, rule, or express agreement reflecting an
understanding that [the plaintiff] had a unique property interest in those duties or
responsibilities.”).
12