Dankprofessor’s Weblog

A weblog examining sexual politics in higher education and beyond.

University of Texas Houston sued for alleged retaliation against porn investigator

It was reported in today’s Austin-American Statesman that Cynthia Davis continues to pursue litigation relating to her firing as University of Texas-Houston technology auditor who had investigated the pornography usage of university computers by faculty and other employees of the UT Health Science Center at Houston.

Based on her 2003 investigative findings, “officials of the health center fired one employee and placed a written reprimand in the personnel files of nine others. The officials never ordered a thorough investigation of as many as 300 other employees whose computer records suggested that they also had spent time viewing X-rated Web sites on the job. What’s more, officials acknowledged that the true number of employees viewing pornography could have been far greater.” As a result of her efforts, Davis claimed that she was fired.

The Austin-American Statesman reviewed the details from court records in a lawsuit that Davis “filed in federal court in 2005 against two prominent higher education officials whom she accuses of largely brushing aside the problem and retaliating against her for raising concerns in 2003.”

Excerpts from the Austin-American Statesman report follows-

A federal appeals court ruled last month that Davis can proceed with her suit against Mike McKinney, who left his position as senior executive vice president and chief operating officer at the Houston center in 2006 to become chancellor of the Texas A&M University System, and Charles Chaffin, the UT System’s director of audits. McKinney, a physician and former state representative, has also served as Gov. Rick Perry’s chief of staff, vice chancellor for health affairs at the UT System and commissioner of the Texas Health and Human Services Commission.

Davis filed the suit against McKinney and Chaffin, the Houston health science center, the UT System and the UT Board of Regents. A district judge dismissed the case against all but McKinney and Chaffin, who declined through representatives to comment, citing the ongoing litigation.

Davis contends that she was pressured to quit her job in late 2003 in the wake of her investigation into the viewing of pornography by faculty members, staff members and students. She is seeking reinstatement, back pay and other damages.

Davis said the lax response by UT officials shocked her. “I thought, people are going to be outraged when they see this,” said Davis, now a computer and accounting consultant in Houston. She said McKinney “handled it the worst of all of them” by narrowing the scope of any investigation from the start.

McKinney said in a deposition supplied by Davis’ lawyer that when he was told how many people were possibly viewing porn, “My immediate reaction was I can’t fire 300 people.”

Davis said McKinney told her, “Bring me the top 10 abusers.”

Davis said she discovered that one pediatric dentist regularly viewed X-rated Web sites in the early morning before seeing patients. She said another employee posted to the Internet pornographic material he had videotaped in his own office.

Davis said officials refused to meet with her to discuss her concerns, even after she wrote a memorandum to James Willerson, president of the Houston center, and sent a copy to Mark Yudof, chancellor of the UT System.

Yudof is expected to be named president of the University of California System next week. A spokesman for Yudof said the chancellor was not available for comment Friday, and Willerson did not respond to a request for comment submitted to a spokesman.

No child pornography, the presence of which would constitute a violation of federal law, was found in the examination of the Houston center computers by UT System police. After being contacted by Davis, the FBI concluded in 2004 that none of the content on the computers constituted child porn.

It’s not clear whether employees who viewed pornographic material broke any state laws. No law specifically bars computer users from visiting pornographic Web sites, said Thomas Johnson, a spokesman for the Texas Department of Information Resources.

However, the Texas Administrative Code, which has the force of law, says information resources “shall be used only for intended purposes as defined by the state agency and consistent with applicable laws.”

…in the deposition, McKinney defended the decision to reprimand all but one of the employees. And he acknowledged that he did not order investigators to examine the computers of as many as 300 other employees to determine the extent of the problem.

Instead, he said, he notified all center employees that viewing pornography was prohibited, on the assumption that the problem was even wider.

“I can tell you that we took an approach that would address the issue for all 4,500 employees, not just those 10, not just the hundred that – they came up with 300, whatever the number was,” McKinney said.

In his deposition, Chaffin testified that Yudof never contacted him about the Houston pornography investigation. Yudof said in an affidavit that Willerson responded to Davis’ memo because this was “an institutional matter.”

Chaffin also said he expressed concern about Davis’ ethics to her supervisor, Sharon Corum, but did not tell Corum to fire Davis. That contrasts with Davis’ and Corum’s views of the matter. In a 2006 deposition, Corum testified that no one directly told her that Davis should be terminated. But, Corum said, Chaffin asked her “on several occasions” whether Davis had been fired.

“I felt under pressure because he repeatedly kept asking me what the status was, and I knew that Charlie did not like it that I had not yet terminated her,” Corum said.

When asked by Shellist, Davis’ lawyer, whether Chaffin’s high-ranking position in the UT System caused her to feel pressure to fire Davis, Corum answered, “Yes, yes.”

“Because I believe he had the authority to impact my career and whether or not I had my job,” Corum testified.

The 5th U.S. Circuit Court of Appeals upheld most of a January 2007 ruling by U.S. District Judge Vanessa Gilmore of Houston that said Davis could pursue a wide range of free speech claims. The appellate ruling turned on whether Davis’ complaints were made as an employee or as a citizen who was raising issues of public concern. Davis’ claims could proceed only if she made them as a citizen, a three-judge panel of the 5th Circuit ruled.

The appeals court rejected two of Davis’ claims – both based on her concern about officials’ inadequate response to the disclosure of pornography viewing – and allowed four others to be heard in the trial court. Gilmore has scheduled a September trial.

The claims that were allowed to proceed were made either to outside entities or ones that didn’t relate directly to her job duties. They include complaints about excessive pay for UT-Houston officials, racial discrimination in hiring and firing, and concerns about the presence of pornography on health science center computers.

Davis filed a complaint with the U.S. Equal Employment Opportunity Commission about discriminatory hiring practices at the Houston center, but the agency didn’t issue any finding, Shellist said.

In the dankprofessor’s opinion, this case provides further evidence that pornography has become an everyday part of American life, including Americans’ working life. It would be fair to state that pornography has become normalized or, if you will, significantly de-stigmatized. Attempts to combat pornography has its limits.

Attempts to penalize or fire employees who have viewed pornography on the university’s or health center’s computers becomes a threat in itself, such could very well disrupt the functioning of the organization. Apparently, such even occurs at institutions that are committed to the health and well being of its citizen-patients. And what is ironic in the current investigation is that many of those who are anti-pornography invoke a health medical framework in articulating their opposition to pornography. Invoking a health rhetoric becomes increasingly difficult when as this case reveals that many health professionals are viewing porn at work, so many that efforts to limit pornography at work must be limited.

So when it comes to limiting porn availability, one can talk the talk, but if one really tries to walk the walk, one can end up walking the plank. This case reaffirms for the dankprofessor that the war on pornography is over. Advocates against porn are on the defensive since there is no defense; so-called filtering is obviously a stopgap measure, the effectiveness of which is severely limited. How to limit access to porn by children still remains a hard issue to resolve, but attempts to limit the access to porn by willing adults is a non-starter. And this is as it should be- adults having the freedom to choose what they view and read and where they view it as long as they do not force it upon the unwilling.

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Barry M. Dank aka the dankprofessorTM
© Copyright 2008

March 22, 2008 Posted by | ethics, higher education, litigation, pornography, sex, sexual politics, sexual rights, University of Texas Houston, workplace | Leave a comment


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