Powell v. Fujimoto

119 F. App'x 803
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 29, 2004
DocketNo. 04-1819
StatusPublished
Cited by3 cases

This text of 119 F. App'x 803 (Powell v. Fujimoto) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. Fujimoto, 119 F. App'x 803 (7th Cir. 2004).

Opinion

ORDER

William Powell, a tenured professor of social work at the University of Wisconsin-Whitewater, brought this lawsuit under 42 U.S.C. § 1983 against various university faculty members and administrators, alleging that they deprived him of property and liberty without due process by censuring him for sexually harassing a female student. The district court dismissed the complaint for failure to state a claim, and Powell appeals. We affirm.

Powell alleges that five employees of UW-Whitewater — Howard Ross, the dean of the Department of Social Work; Janet Wright, the chairperson of the department; Charles Zastrow and Karen Kirst-Ashman, two faculty members in the department; and Eugene Fujimoto, the assistant to the chancellor for affirmative action — conspired to ruin his career by fabricating sexual harassment charges against him. In November 2001, a student complained to Ross, Wright, Zastrow, and Kirst-Ashman that Powell had made “unwelcome sexual advances and comments” to her in his office. These four defendants, allegedly in an effort to “procurfe] a false complaint of sexual harassment against the plaintiff,” attempted to “in-flam[e] [the student’s] fears and foment[ ] her anxiety” by telling her — falsely, Powell asserts — that a number of students, faculty, and staff had also complained that Powell sexually harassed them in the past, and that he had been disciplined for his misbehavior. This led the student to submit a formal complaint to the department dean, who sent it to Fujimoto, in which she stated that she had “recently learned that [she] was the fourth or fifth female student who ha[d] complained to the University about very similar conduct on the part of Professor Powell.” The four members of the department also told Fujimoto directly about Powell’s alleged history of sexual harassment.

Powell asserts that Fujimoto knew these allegations were baseless, but nonetheless in May 2002 issued a “Sexual harassment Complaint Finding” against him and forwarded it to the chancellor of the university. This report concluded that Powell had “engaged in behavior involving inappropriate and offensive comments and evidenced a clear lack of judgment on the part of a member of the faculty.” Fujimoto recommended that the chancellor discipline Powell by placing a “strong letter of reprimand” in his personnel file; requiring Powell and the social work department to undergo sexual harassment training; mandating that Powell keep his office door open when meeting with students; and warning him that further complaints would result in “more serious measures.” The chancellor accepted Fujimoto’s findings, formally charged Powell with violating the University Handbook’s sexual harassment provisions, and adopted Fujimoto’s recommendations for disciplinary action.

In October 2003, Powell filed this suit, alleging that Fujimoto and the other de[805]*805fendants, by accusing him falsely and then punishing him, deprived him of “liberty and property without due process of law” in violation of the Due Process Clause of the Fourteenth Amendment. He also advanced pendent state law claims of conspiracy, intentional infliction of emotional harm, tortious interference with a contractual relationship, and defamation.

Upon the defendants’ motion, the district court dismissed the complaint. The court held that Powell did not state a claim for deprivation of liberty without due process because he did not allege becoming unemployable as a result of the defendants’ actions, nor did he allege losing his tenured faculty position. The court noted that “a loss of pay could be considered a deprivation of property,” but stated that Powell did not allege having any property interest in his job. Because Powell failed to state a due process claim, the court declined to exercise supplemental jurisdiction over his state law claims.

On appeal, Powell reiterates that by censuring him, Fujimoto deprived him of a constitutionally protected property interest in his earnings, his earning capacity, and the attorney’s fees he expended in defending himself, as well as a liberty interest in his reputation. In assessing such procedural due process claims, we follow a two-step approach: first, we must determine whether the plaintiff was deprived of a protected interest; second, we must decide what amount of process was due. Pugel, 378 F.3d at 662. We review de novo the district court’s dismissal under Fed. R.Civ.P. 12(b)(6), accepting the plaintiff’s factual allegations as true and drawing all reasonable inferences in his favor. Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 662 (7th Cir.2004).

A. Property Interest

Powell first claims that the defendants’ actions leading to the chancellor’s formal censure deprived him of a constitutionally protected property interest. Powell locates a property interest in the “substantial expense in attorneys’ fees” he expended in defending himself against the sexual harassment charges, as well as his “lost earnings and earning capacity” because of the stigmatizing nature of the charges.

A protectable property interest must rest on a legitimate claim of entitlement created by some independent source such as state law. Beischel v. Stone Bank Sch. Dist., 362 F.3d 430, 435 (7th Cir.2004). We have held that a tenured professor at a state university has a property interest in his job that cannot be taken away without due process. Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir.1998). We have also noted that a property interest could potentially be infringed by a reassignment that affects future job opportunities, Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 531 (7th Cir.2000), or a demotion that involves a reduction in salary, Sonnleitner v. York, 304 F.3d 704, 716 (7th Cir.2002). But, we have added, internal discipline without further adverse employment consequences does not implicate a protected property interest. See Fleury v. Clayton, 847 F.2d 1229, 1233 (7th Cir.1988) (censure of physician implicates property interest only where state law creates entitlement to “clean” medical license and censure could have legal consequences); Linhart v. Glatfelter, 771 F.2d 1004, 1008-09 (7th Cir.1985). The majority of circuits addressing the question have similarly found that internal disciplinary action alone does not implicate due process. See Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir.1997); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Edu., 42 F.3d 719, 724 (2d Cir.1994); Johnson v. Morris, 903 F.2d 996, 999 (4th Cir.1990); Lowe v. Kan. City Bd. of Police Comm’rs, [806]*806841 F.2d 857, 858 (8th Cir.1988). But see Newman v. Commonwealth of Massachusetts,

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119 F. App'x 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-fujimoto-ca7-2004.