3/11/2019 3:48 PM

Velva L. Price
District Clerk
Travis County
D-1-GN-19-001297
D-1-GN-19-001297
Cause No. ________________ Jessica A. Limon

SHANNAN BUTLER § IN THE DISTRICT COURT

§
§
Plaintiff, § TRAVIS COUNTY, TEXAS
v. §
§
ST. EDWARD’S UNIVERSITY, § 459TH
______ JUDICIAL DISTRICT
§
Defendant. §

PLAINTIFFS’ ORIGINAL PETITION, REQUEST FOR DISCLOSURE AND JURY

DEMAND

Plaintiff Professor Shannan Butler (“Professor Butler”), by and through his attorneys, brings

this action for damages and other legal and equitable relief from Defendant St. Edward’s University

(“Defendant”). Specifically, Professor Butler brings this action for breach of contract and

defamation against Defendant, and for any other cause(s) of action that can be inferred from the

facts set forth herein. In support thereof Professor Butler respectfully shows the following:

I. INTRODUCTION

1. Professor Butler was a Tenured Associate Professor at St. Edward’s until being fired

without adequate cause or due process in violation of his tenure employment contract.

2. In firing Professor Butler, St. Edward’s failed to abide by the foundational

protections afforded to tenured professors, despite that these protections were incorporated in the

St. Edward’s Faculty Manual and Professor Butler’s employment contract. The University’s

unjustified firing of Professor Butler also violated several independent provisions of its own Faculty

Manual.

3. This failure by St. Edward’s to abide by the ordinary and accepted meaning of

“tenured” status, its own Faculty Manual, and its own adoption of the American Association of

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University Professors’ 1940 “Statement of Principles of Academic Freedom” (“1940 Statement”)

constitute a breach of St. Edward’s contract with Professor Butler.

4. Professor Butler’s firing is a symptom of a crisis of Academic Freedom at St.

Edward’s.

5. Tenure is a cornerstone of Academic Freedom. Tenure allows professors to pursue

Truth, speak freely, and participate in faculty governance without fear of retribution.

6. However, according to a recent comprehensive, on-site investigation and report (the

“Report”) conducted by the American Association of University Professors (“AAUP”), an

organization that since 1915 has played a leading role in shaping the standards and procedures that

maintain quality in education and academic freedom in this country’s colleges and universities, “the

climate for academic freedom at St. Edward’s has been deteriorating for a number of years and now

appears to be at its lowest point.” This deterioration has led to a climate described in the Report as

“toxic,” “hostile,” and “characterized, above all else, by fear.” The Report describes a “‘palpable’

feeling of ‘menace’ on campus.”

7. The Report describes a “heavy-handed” and “top-down” model of faculty

governance dominated by the Administration and based on keeping faculty in fear.

8. The Report concluded that St. Edward’s has “an abysmal climate for the exercise of

academic freedom, particularly in the course of participation in institutional governance.”

9. While St. Edward’s has never adequately articulated its reasons for firing Professor

Butler, the University’s vendetta against him appears to have begun when he attempted to exercise

his rights as a tenured professor to “participat[e] in institutional governance.”

10. As a tenured professor, Professor Butler was required to participate in institutional

governance. The Faculty Manual, which governed Professor Butler’s employment contract

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specifically states that “The granting of tenure not only represents a commitment by the university

to the faculty member, but also imparts to the faculty member the responsibility for providing

leadership and continuity; for maintaining quality teaching and student advising; for the

development of academic programs; and for participation in university governance” […] (section

2.7.2).When Professor Butler expressed his opinions about the direction of the Communication

Department, a well-established privilege of tenure, and according to the Faculty Manual, a mandated

responsibility for all tenured faculty, his Dean and the Administration of the University retaliated

against him by firing him in violation of his tenure and academic freedom rights.

11. Rather than following the procedures in the Faculty Manual for dismissing a tenured

professor, the University purported to invoke the Faculty Manual’s provisions for dismissal for

cause. However, no specific acts that would substantiate a termination for cause were ever specified

by the University. Rather, the University vaguely accused Professor Butler of “continued disrespect

and disregard of the university mission and its goals” – one of the grounds of dismissal for cause set

forth in the Faculty Manual – without any specific indication of how he had done so.

12. In fact, Professor Butler’s record of evaluations at the University showed a consistent

pattern of collegiality and support for the University’s mission.

13. The University’s termination decision also appears to be motivated by severe

financial woes.

14. The Faculty Manual which governed Professor Butler’s employment contract,

outlines the steps that are supposed to precede terminations and nonrenewals because of financial

exigency. In terminating Professor Butler without declaring financial exigency, and following the

procedure outlined in section 2.8.7.2 of the Faculty Manual, the University violated its own policy.

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 15. The University’s termination of Professor Butler was substantively and procedurally

vague, arbitrary, capricious, and in violation of Professor Butler’s tenure rights, the St. Edward’s

Faculty Manual, and the 1940 Statement.

16. Specifically, St. Edward’s:

• Did not articulate “adequate cause” or “just cause” to terminate tenured faculty;

• Failed to state the charges against Professor Butler in reasonable particularity despite his
repeated requests;

• Denied Professor Butler the opportunity to be heard and to cross examine witnesses at a
hearing before a faculty body;

• Did not make an adequate record of the proceedings against Professor Butler;

• Violated Faculty Manual procedures by never putting Professor Butler on a pre-dismissal

performance improvement plan as required by section 2.5.6.2 of the Faculty Manual;

• Failed to specify the conduct that allegedly demonstrated “continued disrespect and disregard
to the university mission and its goals”;

• Violated Faculty Manual procedures for amending performance evaluations;

• Conflated Professor Butler's case with that of his wife, in violation of both of their due process
rights; and

• Used dismissal as a tool to restrain Professor Butler’s exercise of Academic Freedom;

• Used dismissal as a tool to address the University’s financial woes;

• Failed to follow financial exigency procedures stipulated in the Faculty Manual; and

• Denied Professor Butler his rights to a discovery process and a faculty hearing with cross
examination.

17. Each of these failures by St. Edward’s constituted a breach of the University’s

contractual obligations to Professor Butler as a tenured professor.

18. In addition to these breaches of its contract with Professor Butler, St. Edward’s added

insult to injury through multiple false and defamatory statements about Professor Butler made by

members of the University Administration.

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 19. Accordingly, Professor Butler brings this suit for breach of contract and defamation.

II. DISCOVERY AND JURISDICTION

20. For purposes of TEX. R. CIV. P. 190.1, Plaintiff alleges that discovery should be

conducted under Discovery Level 2.

21. Pursuant to TEX. R. CIV. P 47(c), Plaintiff seeks monetary relief over $1,000,000 and

all other relief to which he may be entitled, including specific performance.

III. PARTIES

22. Plaintiff Shannan Butler is a natural person and a resident of Austin, Texas.

23. Defendant St. Edward’s University is a private non-profit university corporation

organized under the laws of the State of Texas and has a principal place of business located at 3001

S. Congress Avenue, Austin, TX 78704.

IV. JURISDICTION AND VENUE

24. This Court has jurisdiction over the subject matter of this case in that the allegations

contained herein stem from Texas common and/or statutory law over which this Court has subject

matter jurisdiction. In addition, the amount in controversy exceeds the Court’s minimum

jurisdictional limit.

25. This Court has personal jurisdiction over Defendant because it is a Texas-based non-

profit corporation formed under the laws of the State of Texas with its principal office in Texas and

it regularly conducts business in the State of Texas.

26. Venue is proper in this Court pursuant to TEX. CIV. PRAC. & REM. CODE § 15.002, in

as much as a substantial part of the events or omissions giving rise to the claim occurred in this

District and Defendant’s principal office is in this District.

V. STATEMENT OF FACTS

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 a. Background of Professor Butler’s Employment and Earning Tenure

27. Professor Butler has worked for St. Edward’s since September 2006. His wife,

Professor Corinne Weisgerber, also started working at St. Edward’s in September 2006.

28. He was promoted from assistant to associate professor of Communication in 2012

and granted tenure in 2013.

29. Throughout his time at St. Edward’s, Professor Butler underwent a regular annual

performance review which evaluated his performance in three areas: teaching effectiveness, service,

and professional development (section 2.5.1 of the Faculty Manual).

30. Professor Butler received consistent positive chair and dean performance

evaluations. He received multiple Presidential Excellence Grants throughout his career at St.

Edward’s—grants specifically awarded by the University to faculty who “add to the reputation of

St. Edward’s University in fulfillment of its long-term mission.”

31. Throughout the previous decade, Professor Butler received only “strong” or

“excellent” performance evaluations in the categories of teaching effectiveness, service and

professional development.

32. On January 9, 2018, Professor Butler and his wife Professor Weisgerber were handed

almost identical termination letters alleging that they had “stopped participating as collegial

members of the Department.” Their letters stated that they were being terminated because they had

not fulfilled the expectation to conduct themselves “in a civil, collegial manner towards colleagues.”

33. The Faculty Manual requires that all faculty be evaluated in the area of service

including collegial relations on an annual basis. Section 2.5.1.2 states that an evaluation of collegial

relations “must be included as part of the evaluation.”

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 34. Professor Butler was evaluated on collegial relations by his chair and/or dean since

the beginning of his employment in 2006.

35. Professor Butler’s 2015-2016 annual performance review signed by his dean and his

chair in August/September, specifically highlights Professor Butler’s achievements in the area of

service which expressly “includes collegial relations,” Department Chair Dr. Teri Varner

commented that “You were very active in many ways during the period under review. I am looking

forward to next year. . .. I look forward to having you help the department get on track over the next

year. Thank you so much for your excellent service, Shannan.”

36. Professor Butler’s 2016-2017 annual performance review (his last review before his

abrupt termination), written by Associate Dean and Interim Communication Department Chair Dr.

Richard Bautch, likewise did not find any problems in the area of collegial relations. Dr. Bautch

confirmed that “You attend meetings/sessions of and make contributions to multiple entities on

campus, including your own department, Communication.”

37. Section 2.5 of the Faculty Manual states that “the evaluation of all faculty at St.

Edward’s University is solidly grounded in the principles articulated in the mission statement.” Yet

despite never having received a negative annual performance review of his collegiality, the

University’s termination letter accuses him of “continued disrespect and disregard of the university

mission and its goals.”

38. Professor Butler was well-recognized and esteemed within the Communication

Department and was among the first three Communication professors who were granted tenure in

the department’s history.

39. Throughout his employment at St. Edward’s, Professor Butler was highly involved

in department and faculty governance. At the time of his dismissal he served on the Faculty

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Evaluation Committee (a prestigious committee in charge of promotion and tenure decisions) and

also served as an alternate on the Faculty Senate.

40. Beginning on or about Spring 2012, Professor Butler took a leading role in

attempting to organize a chapter of the American Association of University Professors on St.

Edward’s campus. On information and belief, this activity was disfavored by certain members of

St. Edward’s Administration.

41. On April 21, 2016, Professor Butler contacted Department Chair Dr. Teri Lynn

Varner to ask if she was going to run for chair again. She said she did not want to run and encouraged

him to run instead.

42. The next day, after Professor Butler had already announced his candidacy, Dr. Varner

announced she had experienced an “epiphany” and decided to run.

43. At that point, Dean Sharon Nell chose to change the standard chair nomination

procedures. When Professor Butler later questioned the change of policy he was admonished not to

ask questions.

44. Shortly after Professor Butler’s April 2016 run for Interim Department Chair, he and

his wife, Professor Weisgerber, were first targeted for unjust action by the St. Edward’s

Administration.

b. The Initial Vague Accusations of Wrongdoing

45. Professor Butler first learned of allegations against him in a meeting with Dean Nell

on September 23, 2016.

46. In that meeting, Dean Nell lodged vague and non-specific allegations of

unprofessional behavior that she had supposedly observed in May 2016, the month after Professor

Butler’s run for Department Chair against Dr. Varner.

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 47. Professor Butler had little, if any, face-to-face contact with Dr. Varner in May 2016.

Nothing unprofessional transpired in these limited interactions. He does not recall communicating

with her at all except via email.

48. After the September 23, 2016 meeting, Professor Butler reached out to Human

Resources and Sr. Donna Jurick, Executive Vice President and Vice President for Academic Affairs,

to determine the precise nature of the allegations against him. He was never given an explanation or

specific examples of these allegations.

49. Professor Butler was not put on a performance improvement plan in the September

2016 meetings or at any point thereafter.

50. However, Dean Sharon Nell, herself, had been placed on an improvement plan in

2014 and given an executive coach to work with her on the following areas: improve communication

effectiveness, develop a more collaborative approach, become more accessible, and build solid

relationships to help bridge common goals. All of these documented deficiencies played integral

roles in the dismissal of Professor Butler and Professor Weisgerber.

51. After the September 23, 2016 meeting, Professor Butler reached out to Human

Resources and Sr. Donna Jurick, Executive Vice President and Interim Vice President for Academic

Affairs, to determine the precise nature of the allegations against him. He was never given an

explanation or specific examples of these allegations.

52. Professor Butler and his wife Professor Weisgerber spent the next 15 months leading

up to their abrupt terminations seeking clarification on Dean Nell’s allegations.

53. Professor Butler received a positive annual performance review from Associate Dean

and Interim Communications Department Chair Dr. Richard Bautch on August 1, 2017. Dr. Bautch

commented that “In the leadership category your service to the FEC stands out as this is indeed a

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committee that requires a large commitment of time and effort. You document and describe the

work that you did on the FEC so that it is abundantly clear you are providing leadership.”

54. Four weeks later, Dean Nell secretly added a page to Dr. Bautch’s positive annual

performance review. Dean Nell wrote that she did so in order to document the meeting that had

taken place the previous year on September 23, 2016.

55. After discovering that Dean Nell had altered Dr. Bautch’s performance evaluation of

him, Professor Butler turned to Dr. Bautch and Sr. Donna for help. Professors Butler and Weisgerber

also repeatedly met with the AVP of HR, Kim Van Savage and asked her to launch an investigation

into Dean Nell’s behavior.

56. In separate meetings with Professor Butler, Dr. Bautch and Sr. Donna both confirmed

that they had not observed any new misconduct that would have occurred since the September 23,

2016 meeting.

57. Professor Butler repeatedly informed Dr. Bautch and Ms. Van Savage about the acts

of retaliation that occurred after the September 23, 2016 meeting and about the toll Dean Nell’s

actions had taken on his mental and physical health. After Professor Weisgerber forwarded an

article on “Abusers and Enablers in Faculty Culture” to HR, Ms. Van Savage seemed concerned

enough to enquire whether Professor Weisgerber was considering committing suicide.

58. Shortly after Ms. Van Savage agreed to look into the issue, but before she had the

opportunity to finish her informal investigation, Professor Butler was abruptly terminated.

59. The fact that Professor Butler was terminated immediately after he asked HR to open

an investigation supports the conclusion expressed in the AAUP Report by another faculty member

that “If you go to HR it’s like a death sentence.”

c. Termination

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 60. Without prior warning, on January 9, 2018, at a meeting with Sr. Donna Jurick,

Executive Vice President and Interim Vice President for Academic Affairs, and Kim Van Savage,

Associate Vice President for Human Resources, Professors Butler and Weisgerber were handed

almost identical letters announcing the University’s intention to terminate their employment.

61. To the extent that Professor Butler was handed a nearly-identical copy of Professor

Weisgerber’s termination letter and accused of doing the same things to the same people at the same

time as his wife, the letter appears to be based on some theory of vicarious liability for one another’s

alleged conduct because Professor Butler is Professor Weisgerber’s spouse.

62. The conflation of Professor Butler with his wife and the termination letters’ tendency

to lodge allegations at them in a seemingly interchangeable manner clearly demonstrates the

arbitrary and capricious nature of the termination decision.

63. The termination letter did not state the charges in reasonable particularity and

Professor Butler received no explanation or specific examples of the allegations. Nor was he allowed

to ask any questions concerning the charges or allegations during the January 9, 2018 termination

meeting or any time thereafter.

64. By failing to provide Professor Butler with a summary description of the evidence

relied upon by the university specifying the cause of his termination, the University violated Section

2.8.4 of the Faculty Manual.

65. In addition to repeating the vague allegations regarding supposed misconduct in May

2016, the January 9, 2018 termination letter made further vague allegations regarding supposed

misconduct occurring in March, April, November and during a December 8, 2017 meeting.

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 66. On information and belief, the unspecified allegations related to the December 8,

2017 meeting stem from false and malicious comments made about Professor Butler by the

Associate Dean and Interim Communications Department Chair Dr. Richard Bautch.

67. Professor Butler still does not know what he is alleged to have said or done that lead

to his termination. Professor Butler was not even in attendance at the April 2017 meeting that made

up part of the allegations against him.

68. To the extent that the allegations in the January 9, 2018 letter accused Professor

Butler of misconduct at a time that he was primarily not on campus and accused Professor Butler of

misconduct at a meeting he did not attend, the letter appears to be based upon arbitrary and

capricious claims and on false and misleading information.

69. The letter states that “you have been counseled to correct this behavior.” Professor

Butler was summoned to a single meeting in 2016 where he was charged with improper conduct.

Dean Nell and Dr. Bautch refused to give examples or evidence of the conduct during that meeting.

Professor Butler did not have any other meeting about his behavior, and received no written warning

about his behavior.

70. The Department Chair is required to have minutes taken at each faculty meeting, to

get the minutes approved, and to upload them to a shared management system. These minutes

constitute the official record of what transpired at any given faculty meeting. On information and

belief, no faculty meeting minutes reflect the alleged improper conduct.

71. Professor Butler was not given an opportunity to examine any evidence against him

or challenge any evidence against him, through cross examination or otherwise. Indeed, the

identities of his accuser or accusers were never disclosed by the University.

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 72. The January 9, 2018 termination letter did not state the charges in reasonable

particularity and at no time has Professor Butler received an explanation or specific examples of the

alleged misconduct, some of which occurred in his absence.

73. Far from denying that the charges levied at Professor Butler during the September

23, 2016 meeting with Dean Nell were vague and devoid of specific examples of the alleged

misconduct, the University’s Human Resources department in response to Professor Butler’s request

to have the accusations specified or removed, later noted in an email to Professor Butler that “the

fact that you have received no examples of the behaviors exhibited that you have been asked to

change, is sufficient reason for your appeal.”

74. At the January 9, 2018 termination meeting, Sr. Donna and Human Resources

representative Kim Van Savage stated that no one questioned the quality of Professor Butler’s

teaching and research nor did they question the friendships he has with his colleagues in the

Communication Department.

d. The University’s Inadequate Hearing and Appeal Process

75. Professor Butler was ostensibly afforded a chance to appeal the termination decision

to a faculty committee. But Professor Butler was required to write his appeal without knowing what

evidence, particular incidents, or instruction would be provided to the committee.

76. When asked about what information would be provided to the committee, President

George Martin replied, “The information provided to the Faculty Review Committee and/or me for

purpose of an appeal are (i) the termination letter and (ii) your written appeal, so you are in

possession of the information which will be considered.”

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 77. Despite numerous requests, Professor Butler was not allowed to know the identity of

the faculty members appointed to this faculty review committee. Professor Butler was also not

informed about the procedure or criteria used by the committee to reach a decision.

78. Although Professor Butler was afforded the opportunity to submit a written

submission to the faculty review committee, he was not permitted to appear before that committee

in person.

79. Indeed, beyond the opportunity to submit a written defense to the faculty review

committee, Professor Butler is not aware of any “hearing” that was conducted with regard to his

termination.

80. Instead, Professor Butler was told by a University representative that “[t]he faculty

appeal process does not include discovery or a discovery-like process, and does not allow for the

faculty members to demand further justification of the decisions beyond the information which has

been provided.” This policy is not included in the Faculty Manual.

81. On information and belief, no “hearing” was ever held before the faculty review

committee.

82. No record or transcript of any hearing by the faculty review committee was ever

provided to Professor Butler.

83. Professor Butler was never told the identity of the alleged witnesses against him, nor

was he afforded the opportunity to cross examine or otherwise confront any of these alleged

witnesses.

84. On March 22, 2018, Professor Butler was advised that the faculty review committee

had voted to recommend his termination to the St. Edward’s President George E. Martin.

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 85. On information and belief, the faculty review committee did not provide any reasons

or summary of the alleged evidence in its alleged recommendation to President Martin.

86. On March 29, 2018, President Martin terminated Professor Butler. President Martin

did not provide any reason for this decision beyond reference to the earlier termination

recommendations.

87. Professor Butler was then afforded an opportunity to appeal President Martin’s

termination decision to the Institutional Oversight and Academic Affairs Committee of the Board

of Trustees of St. Edward’s (the “Oversight Committee”). This appeal required him to challenge a

process and its outcome without having been given virtually any information about the process or

the specifics of the allegations against him.

88. On April 30, 2018, Professor Butler submitted his appeal to the Oversight

Committee.

89. On May 15, 2018, the Oversight Committee denied Professor Butler’s appeal in a

summary fashion, concluding without any further engagement with the underlying facts or the

procedural deficiencies raised by his appeal, that the decision to terminate him was “not arbitrary

and capricious.”

90. Professor Butler’s termination from St. Edward’s became final and official after the

Oversight Committee’s denial of his appeal on May 15, 2018.

91. Because of the nature of the academic job market, finding an equivalent tenured or

tenure-track position in Professor Butler’s field is enormously difficult.

e. The Termination Breached Professor Butler’s Tenure Employment Contract.

92. The process and substantive standards by which St. Edward’s terminated Professor

Butler, a tenured professor, fell far short of the fundamental meaning of tenure and numerous

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provisions of the St. Edward’s Faculty Manual as well as the 1940 Statement. As such, St. Edward’s

breached its tenure employment contract with Professor Butler by terminating him.

f. Section 2.9.2 of the Faculty Manual and the 1940 Statement

93. Section 2.9.2 of the St. Edward’s Faculty Manual expressly incorporates the AAUP’s

1940 “Statement of Principles of Academic Freedom.”

94. According to the 1940 Statement, academic due process encompasses the following

components: (1) a statement of charges in reasonable particularity; (2) opportunity for a hearing

before a faculty hearing body; (3) the right of counsel if desired; (4) the right to present evidence

and to cross-examine; (5) a record of the hearing; and (6) opportunity to appeal to the governing

board.

95. Subsequent interpretations of the 1940 Statement generally accepted within the

academic field and understood to be incorporated into the concept of tenure provide that in cases of

dismissal for alleged cause the 1940 Statement requires:

• Adequate cause for dismissal will be related, directly and substantially, to the fitness
of faculty members in their professional capacitates as teachers or researchers.
Dismissal will not be used to restrain faculty members in their exercise of academic
freedom or other rights of American citizens;

• A dismissal…will be preceded by a statement of charges, and the individual

concerned will have the right to be heard initially by the elected faculty hearing
committee;

• The faculty member will be permitted to have an academic adviser and counsel of
the faculty member's choice;

• A verbatim record of the hearing or hearings will be taken, and a copy will be made
available to the faculty member without cost, at the faculty member's request;

• The burden of proof that adequate cause exists rests with the institution and will be
satisfied only by clear and convincing evidence in the record considered as a whole;

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 • The faculty member and the administration will have the right to confront and cross-
examine all witnesses.

96. Despite incorporating the 1940 Statement in its Faculty Manual and, accordingly,

Professor Butler’s employment contract, the University’s conduct in terminating Professor Butler

fell far short of these standards both substantively and procedurally.

97. St. Edward’s failed to provide a statement of the charges against Professor Butler in

reasonable particularity.

98. St. Edward’s failed to provide Professor Butler an opportunity to appear at and

present evidence to a hearing before a faculty body.

99. St. Edward’s failed to provide Professor Butler the right to cross examine the

witnesses against him.

100. St. Edward’s failed to provide Professor Butler with an adequate record of the faculty

review hearing, much less a verbatim transcript.

101. St. Edward’s used dismissal to restrain Professor Butler’s academic freedom and

other of his rights as an American citizen.

102. St. Edward’s shifted the burden of proof to Professor Butler, lodging the vaguest of

accusations and putting the burden on Professor Butler to disprove them.

103. As such, St. Edward’s breached Section 2.9.2 of the Faculty Manual, which was a

part of the terms of Professor Butler’s employment contract with Defendant, as well as the 1940

Statement, which is expressly incorporated into the Faculty Manual.

104. Section 2.9.2 begins with the statement “The fundamental purposes of the university

identified in the mission statement require full commitment to academic freedom.” Thus the mission

itself, which Professor Butler is charged with violating, is fundamentally supportive of academic

freedom.

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 105. The second paragraph directly quotes the AAUP’s 1940 statement on academic

freedom, stating that “Institutions of higher education are conducted for the common good and not

to further the interests of the individual teacher or the institution as a whole. The common good

depends upon the free search for truth and its free exposition.” It is clear from this statement that

even if Professor Butler had wished to “launch a campaign against university decisions,” that it was

his right (and responsibility) to do so. According to this paragraph, utilizing his academic freedom

in support of his students, colleagues, and department, trumps even the University itself.

106. According to paragraph 3, academic freedom “carries with it duties correlative with

rights (1940 "Statement of Principles of Academic Freedom" by American Association of

University Professors and American Association of Colleges).” If these “duties” and “rights” were

not intended to fall in line with the 1940’s AAUP statement, then the statement should not have

been included in the first place.

g. Sections 2.8.6 and 2.5.6.2 of the Faculty Manual

107. Section 2.8.6 of the Faculty Manual provides that if a negative periodic review is

given, tenured faculty “may be terminated in accord with the procedures set forth in Section 2.5.6.2.”

108. The procedures in Section 2.5.6.2 require that a tenured faculty member be given a

performance improvement plan and two years to correct any deficiencies before termination is

considered.

109. If the school committee gives a negative review, it is required to hold a conference

with the faculty member and discuss the committee’s findings and assist the faculty member in

formulating an improvement plan to correct the deficiencies noted.

110. Professor Butler was never given a negative periodic review.

111. Professor Butler was never given a performance improvement plan.

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 112. Professor Butler was terminated less than two years after the first ever complaint

about his alleged conduct arose. His termination could therefore not have been based on a

“continuing string of unprofessional and disruptive behavior dating back a number of years” as his

termination letter alleges.

113. Professor Butler was never afforded a conference or other opportunity to discuss any

committee’s findings and formulate an improvement plan to correct any alleged deficiencies.

114. Defendant thus breached Sections 2.8.6 and 2.5.6.2 of the Faculty Manual.

h. Section 2.8.4 of the Faculty Manual

115. In the January 9, 2018 termination letters, St. Edward’s represented that Professor

Butler was “terminated for just cause pursuant to Section 2.8.4 of the Faculty Manual.”

116. Section 2.8.4 of the Faculty Manual sets forth the species of “cause” sufficient to

justify termination for “just cause.”

117. The list of offenses listed in Section 2.8.4 are quite severe, including: “professional

dishonesty; professional incompetence or continued neglect of academic duties, regulations, or

responsibilities; failure to fulfill contractual obligations as set forth in this Faculty Manual;

misappropriation or misapplication of funds; conviction of a felony; causing notorious and public

scandal; or continued disrespect or disregard for the mission and goals of the university.”

118. Of these offenses, the termination letters list only one as the cause for Professor

Butler’s termination: “continued disrespect and disregard for the mission and goals of the

university.”

119. This allegation of “continued disrespect and disregard” is unsupported by any

documented incidents of such alleged disrespect and disregard.

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 120. The allegation of “continued disrespect and disregard” is unequivocally contradicted

by Professor Butler’s uniformly positive performance reviews and by his multiple Presidential

Excellence Grant awards—grants specifically awarded by the University to faculty who “add to the

reputation of St. Edward’s University in fulfillment of its long-term mission.”

121. Furthermore, Professor Butler's 2015-16 performance review—written by his chair

3 months after the alleged misconduct against that same chair took place—specifically highlights

his “excellent service,” and that the chair was “look[ing] forward to working with [him] next year!”

122. By failing to abide by the standards set forth in Section 2.8.4 and by ignoring the

provisions of Sections 2.8.6 and 2.5.6.2, St. Edward’s breached its commitments under the Faculty

Manual.

i. Section 2.5.4.5 of the Faculty Manual

123. Section 2.5.4.5 of the Faculty Manual requires the Dean’s evaluations of a faculty

member to “be forwarded to the faculty member.”

124. On August 29, 2017, Dean Sharon Nell added a page to Professor Butler’s 2016-17

positive annual chair performance review and uploaded it to the University’s computer system

without informing Professor Butler of the changes. The page Dean Nell added consisted of an

abridged and slightly altered account documenting the September 23, 2016 meeting.

125. Professor Butler was not notified that Dean Nell had changed his evaluation in this

fashion, nor was the altered evaluation forwarded to Professor Butler.

126. St. Edward’s thus breached Section 2.5.4.5 of its Faculty Manual.

j. Contradictions Regarding the Alleged Cause of Termination

127. Sr. Donna Jurick confirmed on two occasions that no one questioned Professor

Weisgerber and Butler’s teaching and research abilities and record; that their colleagues liked them

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as friends; that they are highly talented and highly skilled in their field; that they are considered

experts in their field and that they are employable.

128. Similarly, President George Martin in prepared remarks to the Faculty Collegium on

May 4, 2018 and in further email with the faculty on August 1, argued that Professor Weisgerber

and Butler’s terminations were not based on “the content of their speech on matters having to do

with the university or its policies” and that “these two cases do not involve issues of academic

freedom at the university.”

129. Contrary to those claims, the termination letter specifically alleges that Professor

Butler engaged in “a campaign of disruption and disrespect for university decisions.” The

termination letter also lists several concerns about university policies expressed verbally by

Professors Butler, particularly policies Dean Sharon Nell was imposing exclusively on the

Communication Department. These concerns clearly invoke matters of academic freedom.

k. The University’s Defamatory Statements About Professor Butler

130. At a May 4, 2018 Faculty Collegium, President Martin made a number of false and

defamatory statements to the St. Edward’s faculty about Professor Butler.

131. President Martin stated that Professor Butler was terminated for “a documented

pattern of bullying behavior and intimidation.”

132. Not only was there no pattern of bullying behavior and intimidation, but no such

pattern of alleged behavior had been “documented.”

133. President Martin further stated that Professor Butler had been “dismissed after

having been counseled on [his] behavior (as [he] acknowledges).”

134. Professor Butler was not counseled on his behavior.

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 135. To the contrary, as described above, Defendant never gave Professor Butler

examples of his allegedly improper behavior, and failed to abide by the counseling procedures set

forth in the Faculty Manual.

136. Professor Butler never acknowledged having been counseled on his behavior.

137. These false statements were made by Dr. Martin in front of all of Professor Butler’s

erstwhile St. Edward’s colleagues. On May 22, 2018, the minutes containing the President’s

defamatory statements were emailed to all contracted faculty members at St. Edward’s University.

138. In an August 1, 2018 email to all faculty and a subsequent August 2nd Facebook

Workplace post visible to the entire St. Edward’s community, Dr. Martin repeated these false and

defamatory statements, claiming “these two cases do not involve issues of academic freedom at the

university. Rather, the cases of Professor Butler and Professor Weisgerber are based upon

interpersonal behavioral issues with fellow faculty and staff and a failure to modify behavior despite

counseling from two deans and other colleagues.”

139. Professor Butler was never counseled by Dean Nell, let alone by two deans.

140. While President Martin seems to have dropped the bullying charges, and no longer

claims that these charges have been documented, Professor Butler never engaged in a consistent

pattern of intimidating behavior.

141. In his October 25, 2018 email and Facebook post, Dr. Martin further alleges that

“Their pattern of intimidation and personal attacks is evident in the [AAUP] report, falsely

disparaging well-respected faculty members such as Dr. Richard Bautch and members of the

Communication Department.”

142. Nothing in the AAUP Report disparages Dr. Bautch as President Martin alleges.

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 143. In a coordinated response to the AAUP’s Report, Senate President Lorelei Ortiz sent

a letter to all faculty further defaming Professor Butler.

VI. CAUSES OF ACTION

BREACH OF CONTRACT

144. Plaintiff re-alleges and incorporates by reference all allegations contained in the

paragraphs above as if fully stated herein.

145. Defendant materially breached its obligations to Plaintiff under its contract with him,

its Faculty Manual, and the 1940 Statement.

146. Plaintiff has been damaged by Defendant’s failure to abide by its obligations.

147. As a result of Defendant’s failure to abide by its obligations, Plaintiff has been forced

to retain the undersigned attorneys to prosecute this action.

148. Plaintiff has served written demand pursuant to TEX. CIV. PRAC. & REM. CODE §

38.001 upon Defendant either prior to or concurrently with the filing of this Complaint, so that upon

trial of this case more than thirty days after the delivery of such letter, Plaintiff will be entitled to

recover their reasonable and necessary attorneys’ fees.

DEFAMATION

149. Plaintiff incorporates by reference the allegations contained in the paragraphs above

as if fully stated herein.

150. Defendant slandered Plaintiff by willfully and knowingly publishing false statements

that were believed by third parties and had a negative impact on Plaintiff’s career and life.

151. The defamatory and disparaging statements that Defendant, its officers, agents,

and/or representatives made were not protected by any privilege.

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 152. Plaintiff’s reputation has sustained actual damages by the defamatory and

disparaging statements made by Defendant.

153. Plaintiff has suffered general damages by reason of injury to character and reputation,

emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life.

154. Plaintiff has suffered special damages in the form loss of earning capacity, loss of

past and future income, loss of tenure, loss of six years’ work toward a promotion, loss of

employment, and loss of employment benefits, as well as other pecuniary damages.

155. Plaintiff is further entitled to recover exemplary damages, prejudgment and

postjudgment interest, and court costs.

VII. JURY DEMAND

156. Plaintiff demands a trial by jury.

VIII. REQUEST FOR DISCLOSURE

157. Under Texas Rule of Civil Procedure 195, Plaintiff requests that Defendant

disclose, within 50 days of service of this request, the information or material described in Rule

194.2.

IX. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that Defendant be cited to appear and answer,

and that final judgment be granted against Defendant awarding Plaintiff the following:

158. Actual damages in an amount to be proven at trial;

159. Pre-judgment interest at the maximum rate permitted by law;

160. Costs and disbursements incurred in connection with this action, including

reasonable attorneys’ fees, expert witness fees, and other costs;

161. Attorneys’ fees pursuant to TEX. CIV. PRAC. & REM. CODE § 38.001;

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 162. Compensatory, exemplary, and punitive damages;

163. Post-judgment interest, as provided by law; and

164. Such other and further relief to which Plaintiff may be entitled.

DATED: March 11, 2019 Respectfully submitted,

_/s/ Holt M. Lackey____________________

Holt M. Lackey
Texas State Bar No. 24047763
hlackey@equalrights.law
Ellwanger Law, LLLP
8310-1 N. Capital of Texas Hwy, Ste. 190
Austin, Texas 78731
(737) 808-2238 (Phone and Fax)
ATTORNEY FOR PLAINTIFF
SHANNAN BUTLER

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