Bauer v. Sampson

261 F.3d 775
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 15, 2001
DocketNos. 99-56964, 00-55408
StatusPublished
Cited by43 cases

This text of 261 F.3d 775 (Bauer v. Sampson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001).

Opinions

MICHAEL DALY HAWKINS, Circuit Judge:

Cedric Sampson, Chancellor of the South Orange County Community College District (“SOCCCD” or “the District”), appeals a grant of summary judgment in favor of Roy Bauer, a tenured professor of ethics and political philosophy, in Bauer’s 42 U.S.C. § 1983 case. Sampson contends that: (1) the District’s policy against workplace violence is facially constitutional; (2) the District’s policy against workplace violence is constitutional as applied to Bauer; (3) the District’s policy against racial discrimination or harassment is constitutional as applied to Bauer; and (4) Bauer is not entitled, to attorney’s fees, neither as awarded nor at all.

FACTS AND PROCEDURAL HISTORY

Bauer is a tenured professor of ethics and political philosophy at Irvine Valley College (“IVC”), one of two campuses comprising the District, which is located in Orange County, California. As the District’s Chancellor, Sampson oversees IVC and its sister school, Saddleback College. Sampson, upset at writings and illustrations prepared and circulated by Bauer, sought to discipline him, order him not to make such writings or illustrations in the future, and force him to undergo counseling.

The writings and illustrations were prepared during a traumatic time for IVC and the District. Evaluating the District, an independent team of investigators from the Accrediting Commission for Community and Junior Colleges (“the Accrediting Commission”), noted that “the college [IVC] and the district have experienced much turmoil in the past several years.” The Accrediting Commission attributed the turmoil partially to Orange County’s financial troubles and primarily to a four-to-three split on the District’s Board of Trustees (“the Board”). The report prepared by the Accrediting Commission characterized the situation thus: “A high-profile, often controversial group of trustees [the majority of four] felt obliged to involve itself actively in the day-to-day operations of the district and of the colleges far beyond the traditional role for trustees.” The Board’s increased involvement allegedly resulted in the retirement of a chancellor, the resignation of two college [780]*780presidents, and other attrition. Eventually, the Board appointed an acting President for IVC, Raghu Mathur, in, according to the Accrediting Commission, “a manner viewed by many as intrusive and by all as controversial.” Despite the controversy surrounding his appointment, Mathur was made the permanent President of IVC.

Bauer did not approve of Mathur’s appointment and many of the Board’s other actions. He voiced his disapproval in a campus newspaper called “Dissent,” which he published and circulated himself under fictitious by-lines. Four writings and two illustrations from “Dissent” are at issue in this case:

Writing 1: (November 2, 1998 issue) “I, for one, have etched the name of Sherry ‘Realpolitik’ Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite which I hope to someday drop in Raghu Mat-hur’s head.”
Writing 2: (November 9, 1998 issue) Commenting on a remark by someone at a public meeting of the Board that those present were “the very best people in the district,” stating, “In a room like that, no decent person could resist the urge to go postal.”
Writing 3: (November 9, 1998 issue) A fantasy description of a funeral for a district trustee, who was the subject of a heated recall campaign, at which the other trustees and President Mathur are asphyxiated by “a lurid gas emanating from the Great Man’s gaping mouth.” Writing 4: (November 16, 1998 issue) Satirizing President Mathur’s policies by writing: “[W]e at Dissent announce the founding of the Milosevieh-Mathur Academic Integrity Matrix. I couldn’t think of a more annoying business ed sounding type word than ‘matrix;’ besides, it permits a satisfying acronym: MAIM.” Illustration 1: (November 16, 1998 issue) “Tales of the Backdoor Gooster.” Illustrates a story of underhanded tactics used by President Mathur in creating an “enemies list” and then beheading his enemies.
Illustration 2: (November 23, 1998 issue) “Quick the Downsizers are Coming Again!” Accompanies an article on micromanagement, discussing the anticipated “downsizing” of IVC. Shows three shrunken people assembling a rifle, with one pointing it outward.

Sampson responded to these writings and illustrations by letter, claiming that they violated the District’s policies on workplace violence and racial discrimination or harassment. Sampson “strongly urge[d]” Bauer to participate in the District’s Employee Assistance Program to “[deal] with [his] feelings of anger,” told Bauer that he was expected to comply with the Board’s workplace violence and racial discrimination or harassment policies, and called Bauer in for a meeting.

At the meeting, Sampson told Bauer that the writings and illustrations violated the Board policies on workplace violence and racial discrimination or harassment and that a negative entry was being placed in his personnel file. This meeting was memorialized in a letter, which directed Bauer to: (1) “avoid any form of discrimination against or harassment of SOCCCD employees as described in Board Policy 4000.5”; (2) “immediately cease all verbal threats and violent behavior overtones as required in Administration Regulation 4000.3”; and (3) “[schedule a minimum of two meetings with the employee assistance counselor provided by the District, or make similar arrangements with another counselor approved by the Vice Chancellor [of] Human Resources, and report, in writing, that you have met the counselor. The confirming letter will become part of the District’s record and your personnel file.” The letter warned that failure to comply [781]*781with its terms “would be grounds for more severe discipline.”

Rather than adhere to these terms, Bauer brought suit in the district court, seeking declaratory and injunctive relief as well as damages based on four causes of action: (1) abridgement of his free speech rights, in violation of First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article I, section 2 of the California Constitution; (2) abridgement of his right to petition, in violation of the First Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 3 of the California Constitution; (3) abridgement of his right to equal protection, in violation of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 7 of the California Constitution; and (4) violations of the whistle-blower protections of California Labor Code § 1102.5.

The district court granted Bauer preliminary injunctive relief, ordering Sampson (1) not to enforce the workplace violence and racial discrimination or harassment policies against Bauer and (2) to withdraw the directive for Bauer to undergo counseling.1

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Democratic Party of Washington State Paul Berendt James Apa Helen Carlstrom Vivian Caver Charlotte Coker Edward Cote Ted Highley Sally Kapphahn Karen Marchioro David McDonald Joseph Nilsson David Peterson Margarita Prentice Karen Price Marilyn Sayan John Thompson Ya-Yue Van, Washington State Grange Terry Hunt Jane Hodde, Intervenors-Appellees, and Republican State Committee of Washington, Jeff Kent Lindsey Echelbarger Libertarian Party of Washington Washington State Grange Terry Hunt Jane Hodde Christopher Vance Dione Ludlow John Mills Freedom Socialist Party Green Party of Washington Chris Caputo Donald Crawford Erne Lewis, Intervenors v. Sam Reed, Secretary of State of the State of Washington, Democratic Party of Washington State Paul Berendt James Apa Helen Carlstrom Vivian Caver Charlotte Coker Edward Cote Ted Highley Sally Kapphahn Karen Marchioro David McDonald Joseph Nilsson David Peterson Margarita Prentice Karen Price Marilyn Sayan John Thompson Ya-Yue Van, Jeff Kent, Libertarian Party of Washington Washington State Grange Terry Hunt Jane Hodde Dione Ludlow John Mills Freedom Socialist Party Green Party of Washington Chris Caputo Donald Crawford Erne Lewis, Intervenors, and Republican State Committee of Washington, Jeff Kent Lindsey Echelbarger Libertarian Party of Washington Washington State Grange Terry Hunt Jane Hodde Christopher Vance Dione Ludlow John Mills Freedom Socialist Party Green Party of Washington Chris Caputo Donald Crawford Erne Lewis Christopher Vance Lindsey Echelbarger Diane Tebelius, Intervenors-Appellants, Washington State Grange Terry Hunt Jane Hodde, Intervenors-Appellees v. Sam Reed, Secretary of State of the State of Washington, Democratic Party of Washington State Paul Berendt James Apa Helen Carlstrom Vivian Caver Charlotte Coker Edward Cote Ted Highley Sally Kapphahn Karen Marchioro David McDonald Joseph Nilsson David Peterson Margarita Prentice Karen Price Marilyn Sayan John Thompson Ya-Yue Van, Christopher Vance Republican State Committee of Washington, Jeff Kent Lindsey Echelbarger Dione Ludlow Freedom Socialist Party Green Party of Washington Diane Tebelius, Intervenors, and Libertarian Party of Washington State John Mills Chris Caputo Donald Crawford Erne Lewis, Intervenors-Appellants, Washington State Grange Terry Hunt Jane Hodde, Intervenors-Appellees v. Sam Reed, Secretary of State of the State of Washington
388 F.3d 1281 (Ninth Circuit, 2004)
Democratic Party of Washington State v. Reed
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Bluebook (online)
261 F.3d 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauer-v-sampson-ca9-2001.