Opinion
14-P-1818
12-02-2015
ROBERT E. LEVIN v. UNIVERSITY OF MASSACHUSETTS, AMHERST.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert Levin, who was a professor of food microbiology at the University of Massachusetts, Amherst (University), appeals from the allowance of the defendant University's motion to dismiss his complaint. On June 24, 2014, Levin was speaking with Claudia Donald, the University's associate graduate registrar. Levin criticized the work of one particular master's degree candidate, describing the student's laboratory performance as "idiotic" and challenging the authenticity of the student's grade transcript and credentials. The student was from the People's Republic of China (PRC). Levin asked Donald "to look into the matter," and according to the verified complaint, Levin continued in this vein,
"voic[ing] his opinion about the culture of corruption that many commentators have described as bedeviling business, political, and academic life in the PRC. He expressed the belief that corruption is a form of sociopathic behavior
that is widespread in the PRC, not that every person from the PRC is a corrupt sociopath."Levin also referred "to the danger posed by unqualified scientists and surgeons," and stated, "Let them carve each other up."
Indeed, in Levin's affidavit submitted in support of his application for a preliminary injunction, Levin conceded that, in his meeting with the associate graduate registrar, he made these statements to her, which were based on scholarly articles he had read. Levin acknowledged that he described the student's behavior in the laboratory as "idiotic" and further conceded in his affidavit that he "voiced [his] opinion about the culture of corruption that many commentators have described as bedeviling business, political and academic life in the PRC. I expressed my belief that corruption is a form of sociopathic behavior that is widespread in Chinese society." Levin admitted that he told associate graduate registrar Donald, "Let them carve each other up -- or words to that effect." Levin added only very circumscribed exceptions to his diatribe -- "not that each and every Chinese person is corrupt and sociopathic."
Associate graduate registrar Donald conveyed Levin's comments, together with her written notes of those comments, to John McCarthy, the University's vice provost for graduate education and dean of the graduate school. In a letter dated July 7, 2014, Dean McCarthy wrote to Levin ending the plaintiff's involvement in the graduate programs. Pertinent parts of the letter include the following:
"In th[e] meeting [with associate registrar Donald], you complained to her about one of your master's students, . . . , who is a citizen of China. You repeatedly referred to him as an "idiot" who is completely ineffective in the lab. You then went on to offer these views about Chinese people in general: they are 'sociopaths'; they are 'destroying our moral fabric'; they have money; and they are arrogant. You concluded by saying, 'Let them carve each other up.'
"Your statements about the Chinese people are inconsistent with the fundamental values of this University expressed in its non-discrimination policy. Repeatedly describing your student as an idiot is inconsistent with sound graduate education. In a department where nearly half of the graduate students come from China or Taiwan, it is simply impossible for someone who has your views to be an effective graduate teacher and advisor. For this reason, I am terminating your Graduate Faculty status effective August 31, 2014. After that date, you will no longer be permitted to teach graduate courses or be a member or chair of any master's thesis or doctoral dissertation committees."
Although Levin was excluded from teaching at the graduate master's and doctoral level, Levin's employment at the University was not terminated. It is unclear from the record whether Levin teaches, or has requested to teach, nongraduate level courses since he was removed from his position as a graduate professor. Levin continues to receive his full salary.
Discussion. We note Levin could have, but did not, file a grievance under the applicable collective bargaining agreement. Instead, on August 7, 2014, Levin commenced the present action by alleging that the University violated his right of free speech under art. 16 of the Massachusetts Declaration of Rights, and the Massachusetts Civil Rights Statute, G. L. c. 12, §§ 11H and 11I. The University moved to dismiss the complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).
A Superior Court judge allowed the dismissal motion. The judge observed that Levin's comments about the PRC were not made "in a setting in which political or social statements of this type would tend to concern the community" and "[t]herefore, none of Levin's comments touched on a matter of public concern." The judge also concluded that, even if Levin's speech was on a matter of public concern, his statements about the PRC (as opposed to his statements of concern about the legitimacy of his student's credentials) were not made in his capacity as a "citizen" and were not protected under the First Amendment to the United States Constitution or art. 16. We affirm the dismissal of Levin's complaint.
Although the judge dismissed both the statutory civil rights claims and the constitutional claim, Levin has expressly waived any claim under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 11I. Levin presses only (1) the constitutional argument that art. 16 provides greater protection than the First Amendment (and that the judge erred in determining otherwise); (2) the argument that Levin's statements about the PRC arose out of his position as a professor and in that context; i.e., they were within the scope of his "official duties" under Garcetti v. Ceballos, 547 U.S. 410, 426-427 (2006); and (3) the argument that the judge erred in concluding that Levin's statements about the PRC did not constitute speech on a matter of public concern.
The University submits that, in light of Levin's waiver of any civil rights claim under G. L. c. 12, §§ 11H and 11I, the appeal under art. 16 should be dismissed for lack of subject matter jurisdiction on grounds of sovereign immunity. See Martino v. Hogan, 37 Mass. App. Ct. 710, 720 (1994) (Declaration of Rights does not create an independent cause of action and Massachusetts Civil Rights Act occupies the field). We agree. Given the lack of subject matter jurisdiction, dismissal of the complaint correctly encompasses the declaratory judgment claim under G. L. c. 231A, as c. 231A does not provide an independent statutory basis for subject matter jurisdiction. See Indeck Maine Energy, LLC v. Commissioner of Energy Resources, 454 Mass. 511, 516-517 (2009) (General Laws c. 231A does not provide "an independent statutory basis for standing").
Judgment affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 2, 2015.