UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

JEAN POULARD, )

)

Plaintiff, )

)

v. ) No. 2:16 CV 115

)

THE TRUSTEES OF INDIANA )

UNIVERSITY, et al., )

)

Defendants. )

OPINION and ORDER

Plaintiff Jean Poulard (“Poulard” or “plaintiff”), brings this suit following his 

suspension from his teaching position at Indiana University Northwest Campus 

(“IUN”). (DE # 1.) Poulard sues the Trustees of Indiana University, William J. Lowe, 

Mark McPhail, Ida Gillis, and Gianluca Di Muzio, all in both their individual and 

official capacities (collectively, “defendants”). (Id.)

The matter is now before the court on cross motions for summary judgment. (DE 

## 29, 32.) Additionally, plaintiff has filed three motions to strike portions of 

defendants’ evidence and arguments. (DE ## 38, 42, 54.) These pending motions are all 

fully briefed and ripe for ruling.

I. BACKGROUND1

 

1 In the summary that follows, any unattributed facts are undisputed. This summary 

provides an overview. Additional relevant facts will be referred to in the analysis that 

follows.
2

Plaintiff is a professor of political science at IUN, having earned tenure in 1990. 

(DE ## 31-1 at 1; 34-1 at 4.) Defendant William Lowe (“Lowe”) has been employed as 

the Chancellor of IUN since 2010. (DE # 31-6 at 3.) Defendant Mark McPhail 

(“McPhail”) is the former Vice Chancellor of Academic Affairs for IUN. (Id.) Defendant 

Ida Gillis (“Gillis”) is the former Director of Affirmative Action for IUN. (Id.) Defendant 

Gianluca Di Muzio (“Di Muzio”) is a current faculty member and a former Department 

Chair at IUN. (Id.; DE # 31-5 at 8.)

On June 1, 2015, Di Muzio sent a letter or complaint to Gillis to express concerns 

regarding plaintiff’s behavior based on a student evaluation from plaintiff’s 

International Political Science, Latin America, (POLS-Y 362) class. (DE ## 31-2 at 121; 

34-8 at 1.) The student evaluation stated that plaintiff would “frequently voice[] his 

racist and sexist views” and that he was “obscenely flirtatious with his female students, 

often saying perverted things.” (DE # 34-8 at 1.) Di Muzio also commented that he had 

personally observed plaintiff kissing students on the hand and cheek. (Id.) Later, on 

June 30, 2015, Lowe informed Gillis that plaintiff had also attempted to kiss his wife’s 

hand. (DE # 34-9.)

Gillis investigated these allegations and interviewed students from plaintiff’s 

POLS-Y 362 class. (DE # 34-12 at 2.) She issued a report which summarized the student 

interviews and said that plaintiff engaged in the following conduct: (1) he made 

comments that women (including students in the class) were beautiful (id. at 3); (2) he 
3

made comments about liking blondes (id.); (3) he told one student that “last week [she] 

looked really sexy in the green outfit” and rubbed her back (id. at 4); (4) he hugged 

female students and greeted female students with kisses on the cheek or hands (id. at 3–

4); (5) he stated that black people were destroying Chicago and his solution to crime 

would be a weekly hanging (id. at 5); (6) he made comments that women should not be 

allowed to vote (id. at 7); and (7) he made disparaging comments about Muslim attire 

(id. at 4). Furthermore, in an evaluation from 2010, Di Muzio stated that a student wrote 

“I took great offense when [Poulard] stated how wrong and disgusting it is to be gay 

and how terrible and messed up a child with same sex parents is going to be in the 

head.” (DE # 34-3 at 1.)

Plaintiff denies most of these actions. (DE # 36-1 at 65, 125, 128, 131–32.) But he 

does not deny hugging and kissing students or his comments about gays and gay 

parents. (See id. at 45–46.) He also states that he may have suggested the increased use 

of capital punishment for crime in Chicago’s black neighborhoods. (Id. at 128.)

After reviewing Di Muzio’s complaint and Gillis’s report, McPhail determined 

plaintiff had violated the University Sexual Misconduct Policy and the University Code 

of Academic Ethics. (DE # 34-19 at 4.) He then instituted discipline for these actions. 

(Id.) Plaintiff was obligated to complete Indiana University’s sexual misconduct 

training, he was put on leave without pay for a period of one semester beginning 

January 1, 2016, and a letter of reprimand was placed in his personnel file. (Id.)
4

Based on these events, plaintiff filed a complaint in the Lake County Superior 

Court on March 9, 2016. (DE # 4.) The case was removed to this court on April 6, 2016. 

(DE # 1.) Plaintiff brings the following six claims in his complaint; each claim is brought 

against all defendants: (1) compelling production of public records under Ind. Code § 5-

14-3-9; (2) declaratory judgment; (3) breach of contract; (4) deprivation of due process 

under 42 U.S.C. § 1983; (5) violation of the First Amendment under 42 U.S.C. § 1983; 

and (6) violation of free speech and writing under Ind. Const. Art. 1, § 9. (DE # 4 at 7–

14.)

Discovery has been completed in this case, and defendants have moved for 

summary judgment on all claims. (DE # 32.) Plaintiff also moves for partial summary 

judgment on his breach of contract and First Amendment claims. (DE # 29.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after 

adequate time for discovery, against a party “who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that 

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no 

disputed issues of material fact and the movant must prevail as a matter of law. In other 

words, the record must reveal that no reasonable jury could find for the non-moving 

party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) 

(internal citations and quotation marks omitted).
5

The moving party bears the initial burden of demonstrating that these 

requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th 

Cir. 2010). “[T]he burden on the moving party may be discharged by ‘showing’—that is, 

pointing out to the district court—that there is an absence of evidence to support the 

nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the moving party has met his 

burden, the non-moving party must identify specific facts establishing that there is a 

genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); 

Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). 

In doing so, the non-moving party cannot rest on the pleadings alone, but must present 

fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of 

Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion 

for summary judgment, the court must construe all facts in a light most favorable to the 

non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC 

Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).

III. DISCUSSION

The court will now address the pending motions. Although the motions to strike 

were filed more recently than the motions for summary judgment, the court will 

address them first, due to the questions they raise regarding the sufficiency of 

defendants’ briefs and of the record before the court. The court will then address the 

cross motions for summary judgment together, going through each claim in the 

plaintiff’s complaint..
6

A. Motion to Strike Inadmissible Evidence from Defendants’ Motion for Summary 

Judgment (DE # 38)

Plaintiff argues that in defendants’ brief in support of their motion for summary 

judgment (DE # 33) they cite to pieces of evidence in the record which are inadmissible 

hearsay and should be stricken from the record. Generally, in their response, 

defendants argue that the various pieces of evidence in question are not hearsay 

because they are not offered for the truth of the matters asserted in those statements, 

but instead, for some other purposes. See Fed. R. Evid. 801(c)(2).

The court agrees with defendants’ argument, as it is consistent with the Federal 

Rules of Evidence. If they do not offer the evidence in question to prove the truth of the 

matter asserted, then the court need not strike the evidence as hearsay. Therefore, to the 

extent the court does not strike any pieces of evidence at issue, the court will simply not 

consider that evidence as proof of the truth of the matters asserted in the evidence.

Given this general principle, the court will now more specifically discuss the 

evidence in question. First, plaintiff moves to strike Gillis’s reports dated September 30, 

2015, and January 8, 2016, which contain summaries of the investigations as to 

plaintiff’s conduct and also contain statements from students and others regarding 

plaintiff’s conduct (potential hearsay within hearsay). (DE # 39 at 3.) However, this 

evidence is admissible because it is not offered to prove that plaintiff actually 

performed any conduct, instead it is offered to show what Gillis believed was plaintiff’s 

conduct. Furthermore, the reports themselves are admissible as business records under 

Federal Rule of Evidence 803(6) because they are records of an act or opinion made 
7

during the investigation by Gillis (who had personal knowledge of the investigation), 

and these documents were kept in the regular course of business activity, and not 

simply to prepare for litigation.

Second, plaintiff asks the court to strike Di Muzio’s evaluation and complaint 

which also contain student’s statements regarding plaintiff’s conduct. (DE # 39 at 4.) For 

the same reasons provided as to Gillis’s reports, this evidence is admissible because the 

statements in the documents are not offered to prove the truth of the matters asserted 

and they are business records.

Third, plaintiff asks the court to strike four memoranda prepared by Gillis, some 

of which contain statements from Lowe and his wife. (DE # 39 at 5.) For the same 

reasons provided as to Gillis’s reports, this evidence is admissible because the 

statements in the documents are not offered to prove the truth of the matters asserted 

and they are business records.

Fourth, plaintiff objects to emails sent from Gillis and McPhail to Poulard and 

from Kipley Drew to Poulard’s counsel. (DE # 39 at 5–6.) But the emails are admissible 

because they are offered for various purposes other than to show the truth of the 

matters asserted in the emails. (See DE # 45 at 4–5.)

Fifth, plaintiff objects to a Faculty Board of Review Decision on the grounds that 

it is inadmissible hearsay and that it is an improper legal opinion under Rules 701 and 

702 of the Federal Rules of Evidence. (DE # 39 at 6–7.) However, this is a business 

record and is not offered to prove the truth of the conclusions reached in the decision. 

Therefore it is admissible and it is not an improper legal opinion.
8

Sixth, plaintiff objects to a letter from Alexandria Zeiter. (DE # 39 at 7.) The court 

will not consider this evidence as proof of the truth of the matter asserted in the letter, 

and therefore there is no need to strike the letter.

Seventh, plaintiff makes a rambling argument that authentication of documents, 

alone, does not automatically make hearsay admissible. (DE # 39 at 8–9.) The court 

agrees, but this is irrelevant because the court nevertheless finds the evidence at issue 

admissible for the reasons stated in this order. 

Eighth, plaintiff objects to the Academic Handbook Disclaimer (DE # 34-30) by 

saying it was not authenticated and it is hearsay. (DE # 39 at 9.) However, the specific 

disclaiming statement was authenticated through an affidavit provided by defendants 

(DE # 46-1) attached to their reply brief. Additionally, the disclaimer is not hearsay 

because it is contractual language. Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir. 2007).

Therefore, this argument fails.

Ninth, plaintiff objects to various portions of deposition testimony. (DE # 39 at 

10–11.) However, all of these statements are not hearsay as they are either statements of 

an opposing party under Federal Rule of Evidence 801(d)(2) or they will not be 

considered as proof of the truth of the matters asserted. Therefore, there is no need to 

strike the statements.

Lastly, plaintiff highlights several sentences in defendants’ brief that are not 

supported by citations to evidence in the record. (DE # 39 at 11.) It is true that many of 

these sentences are not immediately followed by a citation to the record. (See DE # 33.) 
9

But a good faith reading of the brief makes it clear that all of these arguments are 

eventually supported by citations to the record later in the same paragraph; in most 

cases that citation follows the sentence which comes immediately after the sentence to 

which plaintiff objects. Therefore, there is no need to strike these statements.

For these reasons, the first motion to strike is denied.

B. Motion to Strike Inadmissible Evidence from Defendants’ Response in Opposition 

to Plaintiff’s Motion for Summary Judgment (DE # 42)

Plaintiff filed another motion to strike defendant’s evidence and a new 26-page 

brief in support of that motion. (DE # 52.) This second motion is largely redundant and 

it has already exhausted a large amount of the court’s resources.2 Defendants relied on 

much of the same evidence in support of their own motion for summary judgment as 

they did in response to plaintiff’s motion for summary judgment. Plaintiff already filed 

a motion to strike evidence in support of defendants’ own motion for summary 

judgment. Thus, this second motion to strike evidence in defendants’ response brief

makes mostly the same arguments about mostly the same evidence as the first motion 

to strike.

Where the evidence in question in the second motion to strike overlaps with the 

first motion to strike, the court denies the second motion to strike for the same reasons 

as the first one. Furthermore, in ruling on plaintiff’s partial motion for summary 

judgment, the court will not rely on any evidence that plaintiff objects to in this motion, 

 

2 The court has already issued an order denying a motion for leave to file a brief with 

excess pages in support of this second motion to strike. (DE # 50.)
10

other than the evidence already found admissible in its analysis of the first motion to 

strike. Therefore, the court denies the remainder of the motion as moot.

C. Motion to Strike Defendants’ Reply in Support of their Motion for Summary 

Judgment (DE # 54)

Plaintiff files a 23-page argument (DE # 55) asking the court to strike portions of 

defendants’ 16-page reply brief in support of their motion for summary judgment (DE 

# 46). In ruling on defendants’ motion for summary judgment, the court will only rely 

on plaintiff’s reply brief (DE # 46) for two notions: (1) defendants’ argument regarding 

the scope of the University’s Sexual Misconduct Policy; and (2) defendants’ argument 

and evidence that the disclaimer clause appeared in a version of the Academic 

Handbook in 1990. Plaintiff objects to the admissibility of both of these portions of the 

reply brief. The court will discuss those objections below. But first, to the extent plaintiff 

objects to any other arguments or evidence in the reply, that the court does not rely on, 

the third motion to strike is denied as moot.

Plaintiff objects to defendants’ argument regarding the scope of the Sexual 

Misconduct Policy and defendants’ inclusion of a new version of the policy as an 

attachment. However, this argument is admissible as it is clearly not a “new” argument, 

and instead is a direct response to arguments raised by plaintiff in the response brief.

(See DE # 46 at 8 (Referencing plaintiff’s argument in his response brief, stating “[i]n 

making this argument, Dr. Poulard relies upon DeJohn v. Temple Univ., 537 F.3d 301 (3d 

Cir. 2008) . . . .”).) Furthermore, plaintiff has already included a version of the Sexual 

Misconduct Policy (from 2015) in the record, and the court will rely on that 2015 version 
11

in making its determinations. (See DE # 36-2.) Therefore, there is no need to strike this 

argument and evidence.

Next, plaintiff once again objects to defendants’ arguments and evidence related 

to the disclaimer clause. The argument itself is acceptable because it is not a “new” 

argument. Again, defendants are merely responding to Dr. Poulard’s arguments, 

including a statement that “at the time that he accepted tenure, there was not a 

disclaimer clause in the Academic Handbook to prevent IU’s policies from becoming 

part of the contract[.]” (DE # 37 at 24.)

Additionally, the evidence supporting this argument—Jennifer Kincaid’s 

affidavit—is admissible because it was introduced to authenticate evidence and to rebut 

arguments made for the first time in the response brief. See Mengers v. Gulf Stream Coach 

Inc., 136 F. Supp. 3d 1006, 1011 (N.D. Ind. 2015) (stating that an affidavit included with 

defendants’ reply brief was sufficient to authenticate documents).

Finally, neither the disclaimer clause, nor the Sexual Misconduct Policy, are 

hearsay. See Jones v. Lake County Sheriff’s Dep’t., No. 2:11-CV-356-TLS, 2014 WL 3928405, 

*2 (N.D. Ind. Aug. 11, 2014) (holding that policies were not hearsay because “[t]he 

documents, which describe prohibited workplace activity and the procedures for 

reporting such activity, are intended to show the existence of the policy itself,

and the truth or falsity of the statements within the policy are not relevant”).

For these reasons, the third motion to strike is denied.

D. Count I: Compelling Production of Public Records
12

In his complaint, plaintiff asks the court to compel defendants to produce certain 

records. (DE # 4 at 7.) Defendants move for summary judgment on this claim, on the 

grounds that they have already produced these records. (DE # 33 at 14.) Plaintiff does 

not contest this basis for summary judgment (see DE # 37) and he admits that he has 

been provided with the records (DE # 34-1 at 28). Accordingly, summary judgment is 

appropriate on this claim and the claim is dismissed.

E. Count II: Declaratory Judgment

In this claim, plaintiff asserts two constitutional challenges to IUN’s Sexual 

Misconduct Policy. (DE # 4 at 8.) He alleges the policy is unconstitutionally vague in 

violation of due process and unconstitutionally overbroad so that it chills protected 

speech. (Id.) Defendants move for summary judgment on the claim.

i. Unconstitutionally Vague

A policy is impermissibly vague if it “fails to provide a person of ordinary 

intelligence fair notice of what is prohibited.” Brown v. Chi. Bd. of Educ., 824 F.3d 713, 

716–17 (7th Cir. 2016) (quoting FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 

(2012)). Significantly, a policy need not define every term to survive a vagueness 

challenge. Id. at 717. Rather, “[i]n the public employment context, . . . standards are not 

void for vagueness as long as ordinary persons using ordinary common sense would be 

notified that certain conduct will put them at risk of discharge.” Keating v. Univ. of S. 

Dakota, 569 Fed. App’x 469, 471 (8th Cir. 2014) (quoting San Filippo v. Bongiovanni, 961 

F.2d 1125, 1136 (3d Cir. 1992)).
13

Plaintiff argues that this statute fails to provide a clear definition of what 

constitutes harassment. (DE # 4 at 8.) However, the policy clearly lists its definition of 

sexual harassment. (DE # 31-10 at 5.) This definition would put ordinary persons on 

notice that kissing students without their permission would put them at risk of 

discharge. (See id.)

In its response to the motion for summary judgment, plaintiff argues that the 

policy is still vague because it provides discretion to Gillis and McPhail to interpret the 

policy (for instance, to determine what constitutes conduct “of a sexual nature”). (DE 

# 37 at 17.) However, a lack of discretion by decision-makers is not required for a 

statute to avoid unconstitutional vagueness. Although Gillis and McPhail will be 

interpreting the relatively broad policy language, plaintiff can still use his common 

sense and ordinary intelligence to determine what will be a violation, based on the 

definitions in the policy. See Keating, 569 F. App’x at 471 (“Although the policy employs 

broad language, that alone does not necessarily prevent an ordinary person from 

recognizing that certain conduct will result in discharge or discipline.”); see also Marshall 

v. Ohio Univ., No. 2:15-cv-775, 2015 WL 1179955, *6 (S.D. Ohio Mar. 13, 2015) (holding 

that Ohio University’s sexual harassment policy was not unconstitutionally vague 

where it included an objective and subjective standard and put individuals on notice as 

to what specific circumstances would be considered in reviewing the accused’s 

conduct).

For these reasons, there is no constitutional violation and the Sexual Misconduct 

Policy is not void for vagueness.
14

ii. Overbroad

Plaintiff alleges that “IU Northwest’s Sexual Misconduct Policy is

unconstitutionally overbroad as applied to Poulard, as it was used to punish Poulard 

for constitutionally protected speech.” (DE # 4 ¶ 63.) Plaintiff cites to Virginia v. Hicks, 

539 U.S. 113, 123–124, (2003) in support of his claim. (DE # 37 at 19.) There, the Supreme 

Court held “[t]he showing that a law punishes a ‘substantial’ amount of protected free 

speech, judged in relation to the statute’s plainly legitimate sweep, suffices to invalidate 

all enforcement of that law, until and unless a limiting construction or partial 

invalidation so narrows it as to remove the seeming threat or deterrence to 

constitutionally protected expression.” Hicks, 539 U.S. at 118–19 (internal citations and 

quotation marks omitted).

Plaintiff argues that the Sexual Misconduct Policy punishes his free speech by 

defining such speech as sexual harassment. See DeJohn v. Temple Univ., 537 F.3d 301, 316 

(3d Cir. 2008) (“[T]here is no ‘harassment exception’ to the First Amendment[] . . . .”).

However, the Sexual Misconduct Policy in the case at hand is clearly not overbroad. In 

fact, it specifically states that “any form of speech or conduct that is protected by state 

or federal law, including the First Amendment, is not subject to this policy.” (DE # 31-10 

at 7.) Consequently, the Policy has a limiting construction that so narrows it as to 

remove the threat to constitutionally protected expression. Therefore, there is no 

constitutional violation and the Sexual Misconduct Policy is not overbroad.

For these reasons, there are no material issues of fact, summary judgment is 

appropriate on this claim, and Count II is dismissed.
15

F. Count III: Breach of Contract

Plaintiff alleges that IUN failed to adhere to the terms of its own policies set forth 

in the Academic Handbook, the Sexual Misconduct Policy, and the Code of Academic 

Ethics, all which—he claims—were incorporated into Poulard’s employment contract.

(DE # 4 ¶ 70.) Both parties move for summary judgment on this claim. (DE ## 30 at 22; 

33 at 24.)

According to plaintiff’s affidavit, plaintiff executed an employment contract with 

IUN at the time he received tenure in 1990. (DE # 36-1 at 5.) The policies listed above 

(the Academic Handbook, the Sexual Misconduct Policy, and the Code of Academic 

Ethics) would be terms of the contract and would impose obligations on both IUN and 

plaintiff. (Id.) Furthermore, plaintiff states in his affidavit that there was no clause in the 

policies stating that they were not to be included in plaintiff’s employment contract. (Id. 

at 6.)

On the other hand, defendants have provided a copy of a disclaimer statement 

from the Academic Handbook which states that “[s]tatements and policies in this 

Handbook do not create a contract and do not create any legal rights.” (DE # 34-30.)

This document seems to be from an edition of the handbook updated in 2014. (See id.) 

However, defendants also provide the affidavit of Jennifer Kincaid, the Chief Policy 

Officer at Indiana University since 2009. (DE # 46-1 at 1.) She attests that this disclaimer

clause was in the version of the Academic Handbook that was in effect in 1990. (Id.)

Accordingly, there is a dispute of fact as to the whether this disclaimer existed at 

the time plaintiff purportedly entered into an employment contract. Moreover, neither 
16

party has submitted an actual signed employment contract from 1990. The court must 

“not speculate as to what is contained in a document not in the record, and will 

consider only the actual record before it.” United States v. Conservation Chem. Co. of Ill., 

785 F. Supp. 1215, 1230 (N.D. Ind. 1989).

At this stage of the litigation, the court must construe all facts in a light most 

favorable to the non-moving party. Thus, when analyzing plaintiff’s motion for 

summary judgment, the court must construe the facts as though the disclaimer was in 

place in 1990, which would, in turn, bar plaintiff’s breach of contract claim. See Packer v. 

Trs. of Ind. Univ. Sch. of Med., 73 F. Supp. 3d 1030, 1041 (S.D. Ind. 2014) (“Because the 

Academic Handbook explicitly disclaims any creation of a contract, Dr. Packer cannot 

rely upon these policies as a basis for her breach of contract claim.”)

On the other hand, when analyzing defendants’ motion for summary judgment, 

the court must construe the facts as though the disclaimer did not limit the employment 

contract in 1990. The disclaimer clause is the entire basis for defendants’ motion for

summary judgment as to this claim, and without it, their argument fails.

In that light, the material terms of the contract remain unclear and in genuine 

dispute by the parties. This genuine issue of fact precludes summary judgment. 

Accordingly, summary judgment is denied as to both motions on this claim.

G. Count IV: Deprivation of Due Process

Plaintiff brings a claim for deprivation of due process under 42 U.S.C. § 1983. 

(DE # 4 at 10.) He argues that defendants’ policies and enforcement of their policies, 

when he was disciplined, violated his due process rights.
17

Defendants concede that plaintiff had a property interest in his continued 

employment. (DE # 33 at 21 n. 12.) Defendants cannot deprive plaintiff of this property 

interest without due process. See Cleveland Bs. of Educ. v. Loudermill, 470 U.S. 532, 538 

(1985). “An essential principle of due process is that a deprivation of . . . property be 

preceded by notice and opportunity for hearing.” Id. at 542 (internal quotation marks 

omitted). “The opportunity to present reasons, either in person or in writing, why 

proposed action should not be taken is a fundamental due process requirement.” Id. at 

546. “The tenured public employee is entitled to oral or written notice of the charges 

against him, an explanation of the employer’s evidence, and an opportunity to present 

his side of the story.” Id. “To require more than this prior to termination would intrude 

to an unwarranted extent on the government's interest in quickly removing an 

unsatisfactory employee.” Id.

McPhail issued his disciplinary decision on November 2, 2015. (DE # 34-19 at 2.)

Prior to that deprivation date, Gillis called plaintiff on July 14, 2015. (DE # 36-1 at 3.)

Plaintiff admits that, during the call, Gillis “advised him [of] allegations of sexist and 

racist behavior” and that she “wanted to meet with him to discuss.” (DE # 34-1 at 18.) 

He also admitted that Gillis advised him that the allegations were “about inappropriate 

remarks and behavior of a sexual and racist nature.” (Id.) Plaintiff was also aware that 

the allegations were related to a “student evaluation.” (Id. at 17.) Following that call, 

plaintiff understood there to be allegations against him that he was racist and sexist. 

(DE # 36-15 at 22.)
18

On July 21, 2015, Gillis sent a letter to plaintiff once again informing plaintiff that 

there were allegations against him that she was investigating. (DE # 34-17.) Gillis also 

invited plaintiff to speak with her and to be interviewed. (See id. at 1.) However, 

plaintiff refused to meet with Gillis. (DE # 34-1 at 16–17.) Instead, he sent an email to 

Gillis in which he again acknowledged that he was aware of the nature of the 

complaints against him and that they were related to racist and sexist remarks 

(although he did not know the exact names of the people who had complained). (DE 

# 34-14.)

All of this serves as evidence of plaintiff’s notice and opportunity to be heard.

See, e.g., Cholewin v. City of Evanston, 899 F.2d 687, 689-90 (7th Cir. 1990) (written notice 

of investigation and personal interview satisfied due process). It does not matter that 

plaintiff did not actually attend the interview offered by Gillis. Flynn v. Sandahl, 58 F.3d 

283, 288 (7th Cir. 1995) (“Employee cannot claim lack of due process when his employer 

offered him such a pretermination hearing and he refused to attend.”) Furthermore, his 

email to Gillis shows that he was aware of the charges and such a response can help to 

demonstrate that notice was sufficient. See Fong, 692 F. Supp. at 950 (“Here, the record is 

clear that the person in question understood the charges against him because he filed an 

answer to them . . .” among other things.).

Plaintiff argues that his due process rights were also violated because Gillis told 

him he could not have an attorney present at his interview, which was a violation of 

University policy. (See DE # 9 at 1.) However, this argument fails because plaintiff does 

not have a federal due process right to state-mandated process. Charleston v. Bd. of Trs. of 
19

Univ. of Ill. at Chi., 741 F.3d 769, 774 (7th Cir. 2013) (“It may have been unfair for the 

university not to follow its own procedures in [plaintiff’s] case, but it was not 

unconstitutional.”)

Lastly, plaintiff argues that his punishment was arbitrary and capricious because 

plaintiff could only be sanctioned if the requirements of Title VII or IX were satisfied.

(DE # 37 at 14.) This argument is irrelevant and without merit. University policy does 

not need to match Titles VII and IX. See Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 

(Ind. 2012) (noting that Title VII did “not constitute an appropriate legal foundation” to 

determine whether a professor committed sexual harassment as defined by university 

policy).

What matters is that plaintiff was given notice of the charges against him and an 

opportunity to be heard, before McPhail disciplined him. Therefore, there is no material 

issue of fact, plaintiff’s due process claim fails, summary judgment is appropriate, and 

the claim is dismissed.

H. Count V: Violation of the First Amendment

Plaintiff alleges that defendants infringed his First Amendment right to free 

speech when he was suspended without pay in retaliation for the content of his 

protected speech. (DE ## 4 at 12; 30 at 6.) Plaintiff moves for summary judgment on this 

claim (DE # 30 at 6), and so do defendants (DE # 33 at 16).

“In order to establish a prima facie case of unlawful First Amendment retaliation, 

a public employee must establish that: (1) she engaged in constitutionally protected 

speech; (2) she suffered a deprivation likely to deter her from exercising her First 
20

Amendment rights; and (3) her speech was a motivating factor in her employer's 

adverse action.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 670 (7th Cir. 2009).

“If a plaintiff establishes a prima facie case, the burden shifts to the employer to 

demonstrate that it would have taken the same action in the absence of the protected 

speech.” Id. “If the employer carries this burden, the plaintiff may still reach trial by 

producing sufficient evidence to allow a reasonable fact finder to determine that the 

employer’s reasons were merely a pretext for firing the employee, at least in part, for 

exercising her First Amendment rights.” Id.

In his motion for summary judgment, Poulard states that he “disputes the 

veracity” of Gillis’s findings regarding the content of his speech. (DE # 30 at 8.) Also, as 

the court stated in the background section of this order, plaintiff has denied most of the 

statements attributed to him by Gillis. Nevertheless, for the following reasons, this 

dispute of fact does not create a genuine issue of fact precluding summary judgment.

In order for plaintiff to prevail on his First Amendment retaliation claim, he must 

show both that his speech was protected and that his speech was a “motivating factor” 

in the employer’s adverse action. However, the only evidence as to motivating factor, 

before the court, is McPhail’s administrative action which specifically outlines the 

motivating factors behind plaintiff’s suspension. (See DE # 34-19.) McPhail’s letter states 

that his action was motivated by the alleged conduct and statements of Poulard as 

described in Di Muzio’s complaint, Di Muzio’s evaluation, and Gillis’s report. (Id. at 2-

3.) Therefore, McPhail based his decision on defendants’ (and specifically Gillis’s) views 

of plaintiff’s conduct and statements.
21

On the other hand, plaintiff’s view of the facts is that he did not make most of 

these statements, or that when he did, he sometimes referred to things in a more mild or 

humorous manner (e.g. capital punishment rather than hangings). However, there is no 

evidence presented by plaintiff that any of these milder or non-existant statements 

were a motivating factor behind McPhail’s administrative action. Nor does plaintiff 

develop any argument that McPhail’s stated reasons were merely a pretext for his 

punishment, and that the true reason for his suspension were these more mundane 

statements.

As such, plaintiff’s First Amendment retaliation claim could not survive if the 

court viewed the facts in his favor regarding what statements he made. This means 

there is no genuine issue of material fact regarding the content of plaintiff’s statements. 

Therefore, in order for plaintiff’s claim to survive, he must demonstrate that the 

statements that Gillis and McPhail cite to were protected speech, such that plaintiff 

successfully states a prima facie case for his First Amendment claim.

The determination of whether speech is protected is a question of law. Connick v. 

Myers, 461 U.S. 138, 148 n.7 (1983). The First Amendment protects a public employee’s 

speech if (1) the employee spoke as a citizen on a “matter of public concern” and, once 

this is established, (2) the employee’s interest “in commenting upon matters of public 

concern” outweighs “the interest of the State, as an employer, in promoting the 

efficiency of the public services it performs through its employees.” Id. at 142, 147 

(quoting Pickering v. Bd. Of Ed. Of Tp. High Sch. Dist. 205, Will Cnty. Ill., 391 U.S. 563, 568

(1968)).
22

Plaintiff’s statements regarding his students’ attractiveness were clearly not 

matters of public concern and were, thus, not protected speech. But, some of his other 

statements regarding gays, Muslims, and African Americans and crime, could 

potentially be matters of public concern. Therefore, the court will consider the balance 

between plaintiff’s interests in making those statements, and the state’s interests in 

restricting them.

The Seventh Circuit applied this Pickering balancing to the context of community 

college instructors in Piggee v. Carl Sandburg Coll., 464 F.3d 667, 671-72 (7th Cir. 2006).

Applying a balancing test, the Seventh Circuit found that the instructor’s interests in 

making comments regarding religion and homosexuality were not protected when 

balanced against the school’s interest in the instructor’s adherence to the subject matter 

of the course she was hired to teach (which in that case was cosmetology). Id. at 671-72.

Other courts have considered other interests in performing the balancing test. See 

Nichols v. Univ. of So. Mississippi, 669 F. Supp. 2d 684, 699 (S.D. Miss. 2009) (“In 

considering [a university’s] interest in efficient operations, the court can consider factors 

such as whether the speech disrupts the regular and successful operation of the 

enterprise, affects morale and discipline, fosters disharmony, impedes the performance 

of the employee’s duties, or detrimentally impacts working relationships that depend 

on loyalty and confidence.”)

In the case at hand, McPhail specifically restricted plaintiff’s speech out of a 

concern for “develop[ing] among students respect for others and their opinions.” (DE 

# 34-19 at 3.) The court agrees with McPhail that IUN had strong interests in restricting 
23

plaintiff’s statements in order to preserve respect for the student body, harmony among 

the IUN population, and to prevent the exclusion and isolation of the minorities 

targeted by plaintiff’s speech.

McPhail also concluded that the statements were not germane to the topic of the 

class. (DE # 34-19 at 3.) However, plaintiff argues that his case can be distinguished 

from Piggee on this issue, because, since he teaches a political science course, his 

statements and comments were within the scope of his course. (DE # 37 at 7.) The court 

disagrees.

It is true that the teacher in Piggee taught cosmetology which was even further off

topic from the instructor’s speech. However, here, plaintiff’s course was a course 

involving Latin American politics, an issue that was not addressed in any of the 

statements at issue. Second, the court recognizes that faculty members have some right 

to engage in academic debates, pursuits, and inquiries. Piggee, 464 F.3d at 671. And

being a political science course should give professors some leeway to delve into topical 

or hot-button issues social and political issues. However, statements about gays being 

“disgusting,” criticizing religious (Muslim) clothing, and asserting that African 

Americans should be “hung,” are not topical statements and do not invoke hot-button 

issues. They sound much more like harassing statements that IUN has a strong interest 

in eliminating in order to foster an inclusive learning environment for all students, 

including gays, Muslims, and African Americans.

Accordingly, when performing the Pickering balancing test, the court concludes 

that the interests of IUN outweigh Poulard’s interests. Therefore, the court finds that 
24

Poulard’s speech was not protected under the First Amendment. Accordingly plaintiff’s 

claim fails and summary judgment is appropriate on the claim in favor of defendants.

Therefore the court will grant defendants’ motion for summary judgment as to this 

claim and deny plaintiff’s motion as to this claim. Moreover, because the court has 

found no constitutional violations of either due process or the First Amendment, the 

individual defendants in this case receive qualified immunity on the § 1983 claims. See 

Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995).

I. Count VI: Violation of Free Speech and Writing

Plaintiff brings this claim against defendants pursuant to Article I, Section 9 of 

the Indiana Constitution. (DE # 4 at 13.) Defendants move for summary judgment on 

this claim, but, rather than presenting a new argument, they contend that their 

argument on their First Amendment claim also applies here. (DE # 33 at 17 n.10.)

Defendants assert that the same standard applies to free speech claims under the First 

Amendment and the Indiana Constitution. (See id.) Plaintiff agrees and simply adopts 

his argument on his First Amendment claim in support of his Indiana free speech claim. 

(DE # 37 at 8 n.7 (“Poulard sets forth the same argument as to the violations of free 

speech that he suffered under the Indiana [C]onstitution.”).)

Accordingly, for the same reasons that the court granted summary judgment on 

Count V of the complaint, it also grants summary judgment on Count VI. Plaintiff’s free 

speech and writing claim is dismissed.

IV. CONCLUSION 

For the foregoing reasons, the court
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(1) DENIES plaintiff’s motion for partial summary judgment (DE # 29);

(2) DENIES in part defendants’ motion for summary judgment (DE # 32) as to 

the breach of contract claim;

(3) Otherwise GRANTS in part (DE # 32) defendants’ motion for summary 

judgment on all other claims;

(4) DENIES plaintiff’s motions to strike (DE ## 38, 42, 54);

(5) ORDERS the parties to file a joint status report regarding their willingness to 

engage in a settlement conference before a Magistrate Judge by October 26, 2018. A trial 

date will be set under a separate order.

SO ORDERED.

Date: September 28, 2018

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT