Shi v. Alabama A&M University, et al.
MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/28/2015. (KEK)
2015 Sep-28 PM 03:24
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALABAMA A&M UNIVERSITY, et al.
Case Number: 5:13-cv-00327-JHE
MEMORANDUM OPINION 1
Plaintiff Xingzhong Shi brings this action for constitutional violations under 28 U.S.C. §
1983 and for race and national origin discrimination under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Doc. 7). He brings these claims against his
former employer, the Board of Trustees (“the Board”) of Alabama A&M University (“the
University”); Dr. Trent Montgomery, Dean of the University’s School of Engineering and
Technology during Shi’s employment; Dr. Daniel Wims, the University’s Provost and Vice
President for Academic Affairs; and Dr. Andrew Hugine, Jr., President of the University. (Id.).
The parties have filed cross-motions for summary judgment on Shi’s claims. (Docs. 101 & 109).
Defendants have also moved to strike Shi’s allegedly unsupported allegations and
unauthenticated evidentiary submissions in his motion and opposition.
(Doc. 115). 2
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 46).
Defendants also moved to strike Shi’s original dispositive motion, (doc. 100), titled
“Plaintiff’s Dispositive Motions with Rebuttal to Defendants’ Response to Plaintiff’s
Interrogatories in Place of Deposition.” (Doc. 104). Because Shi’s motion to amend his
dispositive motions was granted, (doc. 106), and the original dispositive motion replaced by
“Plaintiff’s Motion for Summary Judgment,” raising the same arguments, (doc. 109),
motions are fully briefed and ripe for review. (Docs. 100-104, 109, & 111-118). 3 For the
reasons stated below, Defendants’ motion for summary judgment is GRANTED, and Shi’s
motion for summary judgment is DENIED.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, 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, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond
the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and
internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is
Defendants’ first motion to strike, (doc. 104), is DENIED as MOOT.
Defendants’ second motion to strike, (doc. 115), is construed as objections to Shi’s
evidentiary submissions and will be addressed to the extent they are relevant to the evidentiary
analysis below. See Campbell v. Shinseki, 546 Fed. App’x 874, 879 (11th Cir. 2013) (“Before
[the 2010] amendment, parties properly challenged evidence used in a summary judgment
motion by filing a motion to strike. The plain meaning of these [amended] provisions show that
objecting to the admissibility of evidence supporting a summary judgment motion is now a part
of summary judgment procedure, rather than a separate motion to be handled preliminarily.”).
Any objections not specifically addressed below are deemed MOOT as irrelevant to
determination of the pending motions.
Shi’s “Memorandum on Alabama A&M University Audit Findings,” addressing an
unrelated investigation into alleged financial improprieties at the University, does not appear to
contain anything relevant to Shi’s claims, and instead seems intended to undermine the
credibility of Defendants. (Doc. 118). As courts do not make credibility determination on
summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), nothing in
that document is relevant to the motions currently under consideration. Therefore, it will not be
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient
However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
A. Factual History 4
Shi is a male, Asian citizen from China. (Doc. 103-1 at 62 (242-43); doc. 111 at 3 (not
Shi makes many conclusory and unsupported statements of fact in his motion and
response to Defendants’ motion, (see docs. 109, 111 & 117); however, as these documents were
not submitted under oath or under penalty of perjury, they are not evidence upon which facts
supporting or opposing summary judgment may be based, see FED. R. CIV. P. 56(c) and Adv.
Comm. Notes, “Subdivision (c)” (2010 Amendments) (requiring either an affidavit or declaration
under penalty of perjury). Accordingly, Defendants’ objections to these statements of fact are
SUSTAINED, and they will not be considered for purposes of summary judgment.
disputing these statements)). 5 He began his employment with the University in fall of 2003,
(doc. 103-1 at 29 (109)), but did not have an employment agreement with the University and was
never tenured, (id. at 8 (28), 29 (112), 59 (231), & 61 (237)).
Montgomery was the Dean of the University’s School of Engineering and Technology
(“SET”), and, after a University-wide reorganization, the Dean of the College of Engineering,
Technology and Physical Sciences (“CETPS”).
(Doc. 103-12 at 2-3).
President of the University since July of 2009.
(Doc. 103-13 at 2).
Hugine has been
Wims has been the
University’s Provost and Vice President for Academic Affairs since April 2010, “provid[ing]
administrative oversight for the divisions of Academic Affairs and Research,” which includes
responsibilities over decisions related to hiring, tenure, and termination of faculty. (Doc. 103-9
at 2-3). The Board is the corporate body, created under Alabama law, see Ala. Code § 16-49-21,
and with exclusive jurisdiction and powers to manage, supervise, control and set policy for the
University, see Ala. Code §§ 16-49-21 to -24.
ii. University Policies in Effect During Shi’s Employment
Faculty/Administrative Staff Handbook, revised June 2003, (“the 2003 Handbook”) set out the
applicable policies and procedures for faculty members. (Doc. 103-10 at 1-94). Under Section
5.2 of the 2003 Handbook, “[n]on-tenure positions [were] by contract term-specific and for the
most part temporary.” (Id. at 57). Section 5.4 of the 2003 Handbook authorized University
officials to suspend faculty members “with or without pay, depending upon the circumstances” if
they “commit[ed] or participate[d] in acts of misconduct, or . . . represent[ed] a potential serious
All citations to the record refer to document and page numbers as assigned by the
Court’s electronic filing system. Citations to depositions also include a parenthetical with the
deposition page number(s).
danger to others, the University or themselves.” (Id. at 59).
In addition to the 2003 Handbook, Procedure 5.1 set out standards for all University
faculty, staff, and students when using the University network. (Doc. 103-9 at 4; doc. 103-10 at
95-98). Prohibited conduct included “Hacking or Spamming” and “Harassment.” (Doc. 103-10
at 96-97). The former is described as “use [of] the University Network in a way that (a) disrupts,
adversely impacts the security of, or interferes with the legitimate use of any computer, the
University Network or any network that the University connects to, (b) interferes with the
supervisory or accounting functions of any system owned or managed by the University, or (c)
takes action that is likely to have such effects.” (Id. at 96). The latter is described as “sending
annoying, abusive, profane, threatening, defamatory or offensive messages.” (Id. at 97).
On September 16, 2011, a new version of the handbook (“the 2011 Handbook”) became
effective, superseding all prior handbooks. (Doc. 103-9 at 5; doc. 103-11 at 1-152). Section
22.214.171.124 of the 2011 Handbook discusses non-tenure track appointments, stating:
Non-tenure track faculty are not eligible for tenure, but are eligible for promotion.
Non-tenured faculty members are at-will employees of the University who may
be terminated upon three (3) weeks prior notice. The term, if any, of a nontenured faculty member will be stipulated in an Official Offer of Employment
Notification or Appointment Letter and may be for any period of time.
(Doc. 103-11 at 40).
Regarding non-tenured faculty separation, section 6.2.1 of the 2011
The University has no obligation to reappoint a non-tenured faculty member to
any position or to continue that person’s employment when the term of
appointment expires. A term is defined as one semester, unless otherwise
specified in writing. The decision whether to reappoint a non-tenured faculty
member when the term of appointment expires may be based on any factor
considered relevant to the total institutional interests. The University may employ
a member of the faculty at the beginning of a term without commitment to
employment or payment throughout the semester in question of for the entire
(Id. at 111).
iii. Shi’s Removal from Tenure-Track Appointment List
In the Spring 2007 semester, the University’s faculty search committee recommended Shi
for a tenure-track appointment, but Montgomery replaced his name with an African-American
female candidate, who had a Ph.D. in computer science. (Doc. 103-1 at 25 (95-96)). Shi
acknowledged at his deposition that Montgomery did not replace his name on the list because of
his national origin but because of Shi’s lack of a Ph.D. (Id. at 25-26 (95-97)). 6 He did not file a
grievance or other complaint. (Id. at 24 (91)).
iv. Atluri Appointment to Interim Chair in 2010
In late 2010, Montgomery appointed Dr. Venkata Atluri as the Interim Chair of the
Department of Computer Science (“the DCS”). (Doc. 7 at 5; doc. 103-12 at 4). Atluri was a
tenured Associate Professor from India with a Ph.D. in Zoology and a masters’ degree in
Computer Science. (Doc. 103-1 at 21 (78) & 24 (92); doc. 109-1 at 15). He had been employed
at the University for at least ten years and had previously served as the Interim Chair of the DCS.
(Doc. 103-1 at 21 (78) & 31 (117-18)). Shi alleges he and Dr. Jian Fu were discriminatorily not
chosen for the appointment. (Doc. 109 at 4). At the time, Fu, who is from China, had a Ph.D. in
Computer Science from the University of Alabama in Huntsville (“UAH”) and several years of
Shi contends in his opposition to summary judgment that the candidate Montgomery
replaced him with was “not qualified” because she did not want to come to the University, (doc.
111 at 3-4); however, he does not cite any evidence in the record for these statements. As a
result, the Court will not accept them as true on summary judgment. (See doc. 18 at 14-15 (“Any
statements of fact that are disputed by the non-moving party must be followed by a specific
reference to those portions of the evidentiary record upon which the dispute is based. All
material facts set forth in the statement required of the moving party will be deemed to be
admitted for summary judgment purposes unless controverted by the response of the party
opposing summary judgment.” (emphasis in original)); doc. 107-1). See also Fed. R. Civ. P.
56(c) (“A party asserting that a fact . . . is genuinely disputed must support the assertion by: (A)
citing to particular parts of materials in the record . . . .”).
hands-on industry experience. (Doc. 109-1 at 15). Shi was an Associate Professor from China,
with a Ph.D. in Applied Math with minors in Computer Science and Atmospheric Science from
UAH and nearly five years of hands-on industry experience. (Doc. 109-1 at 16).
v. Wims and Hugine Reorganize the University’s Schools in 2011
In 2011, Hugine authorized the reorganization of the University, changing, among other
things, SET into CETPS. (Doc. 103-1 at 10 (35-36); doc. 103-13 at 3). Under Alabama law, the
President is authorized to “regulate, alter, and modify the organization of the university, subject
to review and concurrence of the board.” Ala. Code § 16-49-23. Montgomery was the dean of
SET before the reorganization and remained dean of CETPS afterward. (Doc. 103-12 at 3). The
reorganization did not affect Shi’s pay, benefits, department, office and teaching locations,
curriculum, or time to arrive at and leave work. (Doc. 103-1 at 34 (129-31)).
vi. Shi Placed on Administrative Leave with Pay in August of 2011 and His
Employment Is Not Renewed in December of 2011
In spring of 2011, Shi began sending unsolicited emails to the individual defendants and
various other University employees. On January 27, 2011, Shi sent an unsolicited email to
Montgomery, Wims, and Hugine and ten other faculty members, stating he had prepared a letter
for Montgomery urging him to resign. (Doc. 103-5 at 29). Montgomery responded, instructing
Shi to follow protocol and the chain of command. (Id.). On February 11, 2011, Shi sent another
unsolicited email to the same people, attaching a letter urging Montgomery to resign as dean “by
comparing and contrasting the [then] current Egyptian President Hosni Mubarak with
[Montgomery].” (Id. at 24-25). Later that day, he sent another saying “Per cnn.com, ‘Mubarak
is gone, joy in Cairo streets.’ What about SET/AAMU?” (Id. at 24).
On March 10, 2011, he sent an email to the three individual defendants, along with over
sixty other University employees, comparing Montgomery to Hosni Mubarak and Muammar
Gaddafi. (Id. at 23-24). That same day, Montgomery responded to Shi (cc-ing Wims), stating
Shi’s emails had targeted him with “rambling, incoherent and untrue statements” and instructed
Shi to “bring [his] concerns through the chain of command before sending out rambling emails”
and to “cease these mischaracterizations.” (Id. at 21). Shi responded with a series of emails to
the individual defendants and dozens of other people, demanding Montgomery respond to each
of Shi’s allegations individually. (Id. at 16-21).
In May 2011, in the auditorium after a meeting at which the reorganization plan was
presented to the faculty, Wims spoke with Shi about switching to the math department because
of Shi’s Ph.D. in math. (Doc. 103-1 at 19 (70)). Montgomery and Hugine were present but did
not participate in the conversation. (Id. at 19 (70-71)). Shi told Wims he had previously applied
for a position in the math department but had not been selected. (Id. at 20 (73)).
On June 30, 2011, at the end of an email addressed to dozens of people and reiterating
Shi’s allegations against Montgomery, Shi stated he “will keep fighting until either [he] will be
removed from [the University] or the dean will be removed from his position.” (Doc. 103-5 at
14-15). On July 27, 2011, he sent another email to the individual defendants and dozens of other
people, referencing Gaddafi again and accusing Montgomery of “exercis[ing] [his] power on
things that are against one of the most important US values – democracy.” (Id. at 12-13). In an
August 9, 2011 email to the individual defendants and dozens of others, Shi made the same
accusation that Montgomery was a “dictatorial leader who exercised his power in ways that are
against one of the most important US values – democracy, while USA have [sic] been
spending many years spreading democracy to Iraq and other mideast countries and the rest of
the world.” (Id. at 11-12). Shi acknowledged at his deposition that comparing Montgomery to
Gaddafi and Mubarak was unprofessional. (Doc. 103-1 at 52 (203-04)).
On August 15, 2011, a college-wide CETPS meeting was held, during which Shi spoke at
the beginning (during introductions) and at the end when Montgomery asked if there were
questions. (Id. at 55 (215-16)). During the meeting, Shi stated Montgomery was “not a good
dean,” had “lied” about certain issues, and had “abused his power.” (Doc. 102 at 14 (citing doc.
100 at 5); doc. 103-8 at 2; doc. 109 at 11). 7 Shi also demanded Montgomery’s resignation “in an
aggressive and angry manner.” (Doc. 103-9 at 6; doc. 103-12 at 5). 8 Montgomery received
complaints from faculty members who felt threatened by Shi’s behavior and passed these on to
Wims, who authorized Montgomery to put Shi on administrative leave with pay. (Doc. 103-9 at
6-7; doc. 103-12 at 5). 9 By a letter dated August 24, 2011, Montgomery notified Shi of the
decision suspending him immediately. (Doc. 103-12 at 6 & 10).
Even after being put on leave with pay, Shi continued to send emails addressed to Wims,
Hugine, and various other people throughout October and into November. (Doc. 103-5 at 31-37;
Neither party cites evidence for this fact; however, as shown by the cited briefs and
exhibits, the parties do not dispute these were the statements Shi made at the meeting. See City
of Atlanta v. United States, 531 F. Supp. 506, 508 (N.D. Ga. 1982) (“The parties neglected to
stipulate this fact, but it is implicit in their arguments.”); In re Hanson Dredging, Inc., 15 B.R.
79, 81 n.* (Bankr. S.D. Fla. 1981) (“These ultimate facts were asserted at trial or in the
memoranda without dispute by any party and therefore there is an implied stipulation to these
facts.”); FED. R. CIV. P. 56 (allowing summary judgment where “there is no genuine dispute as to
any material fact,” requiring support for factual positions where a party is “asserting that a fact
cannot be or is genuinely disputed,” and allowing the court to “consider the fact undisputed”
where it is not properly contested).
Shi asserts these are merely the statements of a defendant and therefore “have no merits
at all,” (doc. 109 at 12); however, the sworn statements of a party are suitable evidence on
summary judgment, cf. Celotex Corp., 477 U.S. at 324 (noting a non-moving party must create a
question of material fact on summary judgment “by her own affidavits” or other evidence)
(emphasis added). Shi has not pointed to any admissible evidence inconsistent with the
statements in Montgomery and Wims’s affidavits.
Shi asserts the 2003 Handbook (applicable at the time he was put on leave with pay) did
not allow for “administrative leave” for employee misconduct, (doc. 111 at 19-20); however, it
did allow for “suspension” with pay because of employee misconduct, (doc. 103-10 at 59). That
it was incorrectly identified as “administrative leave” instead of “suspension” does not change
the fact the 2003 Handbook provided for the discipline imposed on him.
doc. 109-8). At least one of these emails continued to refer to Montgomery as a dictator who
abused his power. (Doc. 103-5 at 32; doc. 109-8 at 4). 10
Citing Shi’s unsolicited emails and his conduct at the August 15, 2011 college-wide
meeting, the University did not renew Shi’s employment for the Spring 2012 semester, notifying
Shi in writing by letter, dated December 13, 2011. (Doc. 103-9 at 7; doc. 103-11 at 154).
B. Procedural History
On March 23, 2012, Shi filed a charge with the United States Equal Employment
Opportunity Commission (“EEOC”), alleging the University discriminated against him on the
basis of his race and national origin by placing him on administrative leave with pay and later
terminating his employment. (Doc. 1-1 at 12). Shi instituted this action on February 19, 2013,
against Defendants Montgomery, Wims, Hugine, and the University’s Grievance Committee.
On April 15, 2013, Shi, at the direction of the Court, amended his complaint, asserting
five claims under Title VII and § 1983. (Doc. 7 at 4-11). The four defendants moved to dismiss
the claims, (docs. 15 & 16), and Shi responded, (docs. 20-22). The Court construed Shi’s
response as a motion for leave to amend his amended complaint to include an additional claim
and new defendant, the Board of Trustees of the University. (Doc. 28 at 2). The Court also
granted in part and denied in part the original parties’ motion to dismiss. (Id.).
finding that the Grievance Committee and Board of Trustees were entitled to Eleventh
Amendment immunity, the Court dismissed the § 1983 claims against them (including Count 3,
the only claim asserted against the Grievance Committee) and any official capacity claims
Defendants object to these emails as unauthenticated. (Doc. 115 at 19-20). However,
these same emails are part of Exhibit 5 to Shi’s deposition, submitted with Defendants’ motion
for summary judgment and authenticated in that deposition. (Doc. 103-1 at 53 (207-08); doc.
103-5 at 31-37). This objection is OVERRULED.
against the individual defendants. (Id. at 16-20, 23). All other claims remained pending. (Id. at
Those remaining claims are as follows:
Substantive Due Process claim under § 1983 11 against Montgomery in his
individual capacity for placing Plaintiff on administrative leave with pay
between August 25 and December 31, 2011;
Substantive Due Process claim under § 1983 and Title VII claim against
Montgomery in his individual capacity for appointing Dr. Venkata Atluri as
the Interim Chair of the University’s Department in the winter of 2010;
Substantive Due Process claim under § 1983 and Title VII claim against
Wims in his individual capacity for not renewing Plaintiff’s employment with
the University in December 2011;
Substantive Due Process claim under § 1983 against Wims and Hugine in
their individual capacities for reorganizing all of the University’s schools and
departments in 2011 and allegedly not allowing any discussions among lower
level administrators and/or faculty about it; and
(i) Title VII count against the Board; and (ii) § 1983 and Title VII counts
against Montgomery, Wims and Hugine in their individual capacities. Claim
6 simply reasserted the conduct asserted in Claims 1, 2, 4 and 5, and
contended the Board is responsible for it.
(Doc. 28 at 7-14 & 23); (see also doc. 7 at 4, 5, 7, & 11; doc. 21 at 1-2). Both sides have moved
for summary judgment in their favor on all remaining claims. (Doc. 101 at 5; doc. 109 at 1). Shi
was given notice of his right and obligation to respond to Defendant’s motion for summary
judgment. (Docs. 107 & 107-1). Both sides filed oppositions and replies to the other’s motions
and responses. (Doc. 111, 112, 114, & 117).
Shi asserts this claim also includes a Title VII claim, (doc. 111 at 3); however, the
amended complaint only lists § 1983 as the legal basis for this claim, (doc. 7 at 4). Regardless,
Claim 6 includes Title VII claims against Montgomery for this conduct, (doc. 21 at 1-2), and
Defendants address this factual basis in their analysis of the Title VII claims, (doc. 102 at 18-25).
The Court does the same below.
A. Title VII Claims
Title VII prohibits employers from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of employment because of such individual’s
race . . . or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff may prove a claim of
intentional discrimination through direct evidence, circumstantial evidence, or through statistical
proof.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Where, as here, a
plaintiff offers only circumstantial evidence, the court evaluates the sufficiency of his claims
through the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973).
Under this framework, the plaintiff bears the initial burden of establishing a prima facie
case. Id. at 802. To do so, he must show: (1) he was a member of a protected class, (2) who was
qualified for his position, but (3) was subject to an adverse employment action and (4) treated
less favorably than a similarly situated employee outside of his protected class. Burke-Fowler v.
Orange Cnty., Fla, 447 F.3d 1319, 1323 (11th Cir. 2006). “The successful assertion of a prima
facie case then creates a rebuttable presumption that the employer unlawfully discriminated
against the plaintiff.” Rioux, 520 F.3d at 1275. (internal quotation marks and citations omitted).
Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to
produce evidence that it had a legitimate, non-discriminatory reason for the challenged action.
Rioux, 520 F.3d at 1275. If the employer satisfies its burden, the burden shifts back to the
plaintiff to “show that the proffered reason really is a pretext for unlawful discrimination.” Id.
(internal quotation marks and citations omitted).
1. Claims Against Individual Defendants
First, to the extent Shi asserts Title VII claims against Defendants Montgomery, Wims,
and Hugine in their individual capacities, those claims are due to be dismissed. “[I]ndividual
employees are not subject to liability under . . . Title VII . . . .” See Fodor v. D’Isernia, 506 F.
App’x 965, 966 (11th Cir. 2013) (citing Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006));
accord Shuler v. Bd. of Trustees of Univ. of Alabama, 480 F. App’x 540, 544 (11th Cir. 2012)
(citing Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007)). “[R]elief under Title VII is
available against only the employer and not against individual employees whose actions would
constitute a violation of the Act . . . .” Dearth, 441 F.3d at 933.
Shi disputes this conclusion, citing a law review article for the proposition “[a] supervisor
and employer will be joined in a lawsuit, liable both jointly and severally.” (Doc. 111 at 26)
(quoting Kathryn K. Hensiak, When the Boss Steps over the Line: Supervisor Liability Under
Title VII, 80 MARQ. L. REV. 645, 653 (1997)). The article in question, however, is not discussing
what the law is in the Eleventh Circuit, see Hensiak, supra., at 649 n.23 (listing the Eleventh
Circuit as falling into the category of “courts reject[ing] supervisor liability under Title VII”);
instead, it is describing a split among the circuits and arguing in favor of an interpretation of
Title VII that holds individual employees jointly liable with their employers under common-law
agency principles, see id. at 654 & 666.
Shi also asserts that, if it is true individual-capacity Title VII claims do not exist,
Defendants should have raised it earlier. 12 (Doc. 111 at 26). Shi cites no authority for the
Defendants moved to dismiss Shi’s complaint on June 3, 2013, but raised only
Eleventh Amendment Immunity, pleading-standard, and improper-party defenses in their motion
to dismiss. (See doc. 15). Upon considering those grounds, the judge previously assigned to this
case dismissed the claims against the University, against the Grievance Committee, and against
the individual defendants in their official capacities on Eleventh Amendment Immunity grounds.
proposition a defense asserting the plaintiff has failed to state a claim upon which relief may be
granted is waived if it is not raised in a pre-discovery motion to dismiss. Such defenses are, in
fact, “expressly preserved against waiver [for failing to raise them in a Rule 12 motion or other
responsive pleading]” by Rule 12(h)(2). FED. R. CIV. P. 12, Adv. Comm. Notes, “Subdivision
(h)” (1966 Amendments).
Shi has presented no basis to override the Eleventh Circuit’s clear ruling that Title VII
claims do not exist against individual employees committing the conduct violating the statute.
See Dearth, 441 F.3d at 933. As a result, Montgomery, Wims and Hugine are entitled to
summary judgment on his Title VII claims against them, and those portions of claims 2, 4, and 6
2. Claims Against the Board
That leaves only the Title VII claims against Shi’s employer, the Board of Trustees of the
He asserts Title VII claims against the Board based on allegations that (a)
Montgomery removed his name from a list of proposed tenure-track appointments in 2007; 13 (b)
Montgomery appointed Atluri as the Interim Chair of DCS in 2010; (c) Montgomery placed Shi
on administrative leave with pay in August 2011; and (d) Wims did not renew Shi’s employment
with the University in December 2011. (Doc. 21 at 1-2). Shi has not established a disputed
question of material fact on any of these bases.
It is not entirely clear from Shi’s Amended Complaint that this was a separate asserted
basis for Title VII relief against the Board, (see doc. 7 at 9 (stating this allegation against
Montgomery among a series of free-floating allegations following Claim 4 against Wims); doc.
21 at 1-2 (failing to include this among the re-alleged conduct of the various individuals));
however, construing Shi’s pleadings broadly, the Court will follow Defendants’ lead and address
it as a separate alleged basis for Title VII relief, (see doc. 102 at 19). (See also doc. 21 at 2)
(seemingly alleging the Board is responsible for all of the violations the individual defendants
i. Failure to Exhaust Administrative Remedies
First, as a threshold issue, Shi did not timely exhaust his administrative remedies on three
of the four bases: the tenure-track-appointment-list allegations, the Interim-Chair-appointment
allegations, and the administrative-leave allegations. Under Title VII, “[i]f the victim of an
employer’s unlawful employment practice does not file a timely complaint, the unlawful practice
ceases to have legal significance, and the employer is entitled to treat the unlawful practice as if
it were lawful.” City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1102 (11th Cir. 2002). In a nondeferral state, plaintiffs have 180 days in which to file charges of discrimination with the EEOC.
See Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005), superseded
on other grounds by statute, Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123
Stat. 5, 5-6.
Shi filed his EEOC charge on March 23, 2012. (Doc. 1-1 at 12). The 180-day statute of
limitations period would, therefore, encompass any unlawful practice occurring between
September 25, 2011, and March 23, 2012. This would not include the tenure-track-appointmentlist allegation in 2007, the Interim-Chair-appointment allegation in 2010, and the administrativeleave allegations in August 2011. 14 Shi does not contend he filed his EEOC charge within 180
days of these events; instead, he argues the statute of limitations for filing an EEOC charge in
Alabama is 300 days. (Doc. 111 at 27). Shi cites no authority for this statement, but, in any
event, it is incorrect. Alabama is a non-deferral state, in which a plaintiff must file his charge
Although the administrative leave with pay continued up until Shi’s employment ended
on December 31, 2011, “the time for filing an EEOC charge begins to run when the employee
receives unequivocal notice of the adverse employment decision.” Grayson v. K Mart Corp., 79
F.3d 1086, 1100 n.19 (11th Cir. 1996). Regarding the administrative leave, that would have
been when he was notified of it in August 2011, more than 180 days from the date he filed his
EEOC charge. Regardless, even if the administrative leave were timely, the circumstances
surrounding Shi being put on administrative leave and being let go are substantially the same, the
latter of which is addressed below.
within 180 days of the adverse employment decision. See Ledbetter, 421 F.3d at 1178 (“For
claims arising in so-called ‘non-deferral’ states, such as Alabama, to be timely, the applicable
charge must have been filed within 180 days ‘after the alleged unlawful employment practice
occurred.’”); Boyd v. Honda Mfg. of Alabama, LLC, No. 1:08-CV-960-VEH, 2010 WL 6084741,
at *7 (N.D. Ala. Dec. 16, 2010). 15 As a result, these three bases for his Title VII claim against
the Board are time-barred, and the Board is entitled to judgment as a matter of law.
ii. Shi’s Termination/Non-Renewal
Shi alleges he was terminated in December 2011 “for protesting [Wims’s] appointment of
[Montgomery] as the new dean of the newly re-organized college.” (Doc. 7 at 7). First, this
allegation does not state Shi’s employment was ended because of his race or national origin.
Other than a brief, conclusory description of this action as “discrimination” and the citation to
Title VII, there is no allegation that the basis for Shi being let go was his race or national origin,
(id. at 7-10). To the contrary, his allegations are he was let go as retaliation for “disclos[ing] the
dean’s wrongdoings and protest[ing] the Provost’s appointment of Dr. Montgomery as the new
dean (whose misdeeds are documented elsewhere).” (Id. at 8). This alone is enough to cause his
claim to fail. See Blue v. Dunn Const. Co., 453 F. App’x 881, 886 (11th Cir. 2011) (“We do not
analyze whether employment decisions are prudent or fair. Instead, our sole concern is whether
unlawful discriminatory animus motivates a challenged employment decision.”)
Regardless, Shi has not established a prima facie case of discrimination. To make a
prima facie case of discriminatory discipline or termination, the plaintiff must show “(1) the
plaintiff is a member of a protected class, (2) [he] was subjected to an adverse employment
See also EEOC’s Birmingham District Office Timeliness Information,
http://www.eeoc.gov/field/birmingham/timeliness.cfm (“In the State of Alabama, an individual
has 180 days from the date of alleged harm to file a charge with this office . . . .”).
action, (3) the employer treated similarly situated employees outside the class more favorably,
and (4) [he] was qualified to do [his] job.” Brooks v. CSX Transp., Inc., 555 F. App’x 878, 883
(11th Cir. 2014) (citing Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). Defendants
do not dispute Shi is a member of a protected class, was subjected to an adverse employment
action, and was qualified to perform the job. (See doc. 102 at 23) (challenging only his failure to
proffer a similarly situated comparator).
Shi has attempted to show he was treated differently than a similarly situated employee
outside his class by pointing to Jay Gangasoni.
(Doc. 111 at 14-15).
He contends his
“employment was terminated solely due to the claimed but never-can-be-convicted-as-wrong
behavior at the meeting on Mon 8/15/11, but Mr. Jay Gangasoni’s employment was
retained . . . .” (Id. at 14). He then states they were both non-tenure track and had never been
convicted of any violation of “university, state and US federal regulations and/or statutes/laws,
except for minor traffic violation,” but Gangasoni is from India (where Shi is from China), has
an MS degree in CS (where Shi has a Ph.D. in Applied Math with minors in CS), and held the
“instructor” title in December 2010 (where Shi held the “associate professor” title). (Id. at 15).
First, Shi does not cite to any evidence to support his allegations regarding Gangasoni.
(See id.; doc. 109 at 16-17). Although Gangsoni is mentioned in the interrogatories attached to
Shi’s motion for summary judgment, those attachments include only questions and do not
include any answers that could be considered as evidence. (See doc. 109-5 at 15, 22, & 26). Just
as importantly, though, the allegations never assert Gangasoni ever committed the same actions
for which Shi was allegedly let go. (See doc. 11 at 15; doc. 109 at 16-17). Even if Gangasoni
were a proper comparator on other characteristics (which is doubtful considering the differences
in qualifications Shi lists), if Gangasoni never committed the same conduct as Shi, he could not
have been more favorably treated in response. 16
Finally, even assuming Shi could establish a prima facie case of discrimination, he does
not show Defendants’ proffered nondiscriminatory reason is just pretext for discrimination. “To
avoid summary judgment the plaintiff must introduce significantly probative evidence showing
that the asserted reason is merely a pretext for discrimination,” but “[a] reason is not pretext for
discrimination unless it is shown both that the reason was false, and that discrimination was the
real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir.
Defendants assert Shi was put on administrative leave in August 2011 and ultimately not
renewed at the end of that term because (1) he “consistently violated Procedure 5.1 by sending
hundreds of unsolicited, annoying and harassing emails to Drs. Montgomery, Wims and Hugine
and countless other faculty and administration members” and (2) Montgomery received
complaints from faculty members “who felt threatened by [Shi]’s behavior at the August 15[,
2011] meeting.” (Doc. 102 at 23-25). Shi responds by attacking the two reasons separately,
stating that, because he had not been terminated by the end of the Summer 2011 semester, none
of the emails before that time could have been a terminable offense, (doc. 111 at 17), and,
therefore, the only reason he was let go had to be his conduct at the August 15, 2011 meeting,
from which he was never convicted of any violation and must be presumed innocent, id. at 1819.
First, that Shi was not let go at the end of the Summer 2011 term does not establish that
Shi also mentions in his motion for summary judgment that “[a]t least five (5) other
faculty members (all with national origins other than China) also questioned Montgomery on
various issues while none of them but Plaintiff (who was never convicted violating [sic] any
AAMU regulations) was placed on ‘Administrative Leave with Pay.’” (Doc. 109 at 11). He
does not name these other faculty members, present any evidence to support his assertions, or
establish these faculty members were similarly situated comparators.
his prior conduct did not, in conjunction with later conduct, play into the ultimate decision not to
renew his contract at the end of the Fall 2011 semester. Second, even if Shi’s conduct at the
August 15, 2011 meeting was the only basis for his non-renewal, that would be enough. See
Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007) (“By failing to rebut
each of the legitimate, nondiscriminatory reasons of the [defendant], [the plaintiff] has failed to
raise a genuine issue of material fact about whether those reasons were pretext for
discrimination.” (emphasis added)). Defendants submitted evidence Shi acted “in an aggressive
and angry manner and made various disparaging remarks” about Montgomery at the August 15
meeting and Montgomery received complaints from faculty members who felt threatened by
Shi’s behavior, (doc. 103-9 at 6-7; doc. 103-12 at 5), which are legitimate, non-discriminatory
reasons not to renew his contract at the end of the semester.
Shi states Defendants have not presented anything to show he has been “convicted” of a
violation of the University’s policies and he should, therefore, be entitled to the presumption of
innocence. However, the question is not whether Shi was “convicted” of violations or even
whether he violated the University’s policies at all; the question at issue here is whether
Montgomery and Wims did not renew Shi’s contract because he is from China. See Foster v.
Biolife Plasma Servs., LP, 566 F. App’x 808, 811 (11th Cir. 2014) (“A plaintiff cannot show
pretext merely by showing that an employer’s good faith belief that she engaged in misconduct is
mistaken.”) (citing EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176–77 (11th Cir. 2000));
Blue, 453 F. App’x at 886 (“[O]ur sole concern is whether unlawful discriminatory animus
motivates a challenged employment decision.”). The Board says the reason Shi was let go was
because Montgomery and Wims believed Shi’s conduct (which they describe as sending repeated
emails violating Procedure 5.1 and acting aggressively at the meeting) “fail[ed] to meet the
requirements of faculty conduct,” (doc. 109-1 at 17-18), and Shi’s race and national origin were
never considered, (doc. 103-9 at 7; doc. 103-12 at 5). Shi does not present any evidence to
suggest Defendants’ asserted reasons were not the real reasons he was put on administrative
leave and ultimately let go.
Accordingly, the Board is entitled to judgment as a matter of law on Shi’s claim of
discriminatory termination/non-renewal under Title VII.
Because the Board is entitled to
judgment as a matter of law on all of Shi’s Title VII claims, those claims are DISMISSED.
B. § 1983 Claims
Title 42 U.S.C. § 1983 authorizes private parties to enforce federal constitutional rights
(and some federal statutory rights) against defendants who act under color of state law. Section
1983 states as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia [i.e., law], subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
42 U.S.C. § 1983. Notably, § 1983 does not itself create or establish any federally protected
right. Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). Instead, it
creates a cause of action for a plaintiff to enforce federal rights created elsewhere, such as
constitutional rights. Id. To assert a cause of action based on § 1983, a plaintiff must establish
two elements: (1) a violation of a constitutional right, and (2) that the alleged violation was
committed by a person acting under color of law. Holmes v. Crosby, 418 F.3d 1256, 1258 (11th
Shi’s amended complaint makes a series of substantive-due-process claims against
Montgomery and Wims based on the same facts as his Title VII claims, plus a substantive-dueprocess claim against Wims and Hugine for reorganizing the University without considering
employee opinion. (Doc. 7 at 4-11; doc. 21 at 1-2). However, he does not establish a dispute of
material fact as to any violations of a constitutional right on any of these claims.
1. Substantive Due Process – State-Created Interests
The substantive component of the Due Process Clause protects “fundamental” rights that
are “implicit in the concept of ordered liberty.” Kentner v. City of Sanibel, 750 F.3d 1274, 1279
(11th Cir. 2014) (quoting McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc)). As
fundamental rights are created by the Constitution, they do not include property interests created
“by existing rules or understandings that stem from an independent source such as state law.” Id.
A plaintiff’s right to employment is not “so fundamental that our democratic society and its
inherent freedoms would be lost if that right were to be violated.” McKinney, 20 F.3d at 1561.
By extension, if a right to employment does not give rise to substantive due process rights, the
lesser interest in a potential promotion also would not. Similarly, this Court cannot say a faculty
member’s interest in being consulted before reorganization of a university is fundamental to a
democratic society. As a result, Shi’s substantive due process claims fail because these rights do
not implicate substantive due process concerns. 17
There is an exception to this general rule: “Where a person’s state-created rights are
infringed by a ‘legislative act,’ the substantive component of the Due Process Clause generally
protects that person from arbitrary and irrational governmental action.” Kentner, 750 F.3d at
1279-80. However, that exception is not applicable here because employment terminations are
executive acts, not legislative ones, id. at 1280, as is reorganization of the University, which,
2. Procedural Due Process
State-created property rights, such as those represented by an employment contract, are
protected, instead, under the procedural component of the Due Process Clause and
“constitutionally may be rescinded so long as the elements of procedural—not substantive—due
process are observed.” McKinney, 20 F.3d at 1556. Regardless, a constitutionally protected
interest must exist. See Gray v. Bd. of Regents of Univ. Sys. of Georgia, 150 F.3d 1347, 1350
(11th Cir. 1998) (“The success of due process arguments depends upon the finding of a
constitutionally protected property interest in the expectation of continued employment or of a
liberty interest having been infringed upon by the State; absent such interest, no due process
None of the state property interests Shi asserts are entitled to any particular process: (1)
not when being put on administrative leave with pay, cf. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 545 (1985) (noting in dicta that, where employees have a property right in their
employment (such as tenure), putting an employee perceived as threatening on administrative
leave with pay would avoid a due-process-violating termination until sufficient process could be
provided) 18; (2) not when being terminated/non-renewed, see Gray, 150 F.3d at 1352-53 (“[The
plaintiff] never had tenure (and therefore no property right entitled to protection under the
Fourteenth Amendment).”); and (3) not when being passed over for appointment to a higher
position, see Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir. 1988) (“[A] prospective promotion
under state law, is an executive power explicitly given to the President of the University, see Ala.
Code § 16-49-23 (“The president may regulate, alter, and modify the organization of the
university, subject to review and concurrence of the board.”).
As he is not tenured, Shi does not have such a protectable interest in his employment
and can be terminated without any degree of process. See Gray, 150 F.3d at 1352-53. It would
be illogical then to say he has a protectable interest in being provided process for the lesser
sanction of being paid to not do the job he does not have an interest in performing.
is not a property or liberty interest protected by the fourteenth amendment.”). As noted above,
Shi has no right to be consulted about the University’s reorganization, see Ala. Code § 16-49-23,
so he has no right to process before being deprived of it. To the extent Shi’s complaint can be
construed to assert a procedural due process claim, it is DISMISSED.
3. Substantive Due Process – First Amendment Retaliatory Discharge
Lastly, although he does not explicitly refer to it as such, Shi brings a First Amendment
retaliatory discharge claim against Wims under § 1983. (See doc. 7 at 7 (“That decision [to
terminate Shi’s employment] was an act of . . . retaliation against me for protesting [Wims’s]
appointment of [Montgomery] as the new dean . . . .”)); doc. 109 at 22 (“The Constitution does
not prohibit firing public employees, but it does prohibit firing them . . . in retaliation for
protected speech.”); doc. 111 at 10 (“[M]aking the foregoing statements and questioning
Montgomery a couple of issues . . . is protected by US constitution, under the free speech laws.”)
& 19 (“Questioning a dean’s power abusing and lying, before near 100 colleagues, is not
prohibited but protected by US constitution.”)). Unlike with his discriminatory discharge claim
asserting state-law employment rights, the substantive component of the Due Process Clause
incorporates against the states the fundamental rights protected by the First Amendment and will
support a claim of discharge in retaliation for protected speech. See Beckwith v. City of Daytona
Beach Shores, Fla., 58 F.3d 1554, 1562 (11th Cir. 1995) (holding on this basis that McKinney
did not prevent First Amendment retaliatory discharge claims).
“It is axiomatic that a state may not demote or discharge a public employee in retaliation
for protected speech.” Tindal v. Montgomery Cnty. Comm’n, 32 F.3d 1535, 1539 (11th Cir.
1994) (internal quotation marks omitted). To analyze a First Amendment retaliatory discharge
claim requires four steps: first, the court must determine whether the plaintiff’s speech “may be
fairly characterized as constituting speech on a matter of public concern”; second, if the speech
addresses a public concern, the court must weigh the plaintiff’s First Amendment interest against
“the interest of the state, as an employer, in promoting the efficiency of the public services it
performs through its employees”; third, if the plaintiff prevails on the balancing test, the factfinder must determine whether the plaintiff’s speech played a “substantial part” in the
government’s decision to discharge him; and, lastly, if the employee shows his speech was a
substantial motivating factor, the state must prove by a preponderance of the evidence “its
legitimate reason, standing alone, would have induced it to make the same decision.” Bryson v.
City of Waycross, 888 F.2d 1562, 1565-66 (11th Cir. 1989). Assuming Shi could establish his
speech was made as a citizen (instead of an employee dissatisfied with a supervisor’s decisions
regarding the employee and his department), Shi has not established his First Amendment
interests outweigh the interests of the Defendants’ interests as Shi’s employer.
This second step of the analysis, balancing the state’s interest in efficient provision of
public services against the plaintiff’s speech interest, is referred to as the Pickering balancing
test, see id. at 1565, and, along with the first step, is a “question of law designed to determine
whether the employee’s speech is protected by the First Amendment,” Beckwith, 58 F.3d at
1564. The Eleventh Circuit has noted three specific factors to consider in the analysis: “(1)
whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2)
the manner, time and place of the speech, and (3) the context within which the speech was
made.” Bryson, 888 F.2d at 1565. Specifically regarding statements by employees about their
superiors, the court has held “‘[t]he First Amendment does not require a public employer to
tolerate an embarrassing, vulgar, vituperative, ad hominem attack,’ even if such an attack
touches on a matter of public concern. If the manner and content of an employee’s speech is
‘disrespectful, demeaning, rude, and insulting,’ and is perceived that way in the workplace, the
government employer is within its discretion to take disciplinary action.”
Hillsborough Cnty., 468 F.3d 1276, 1288 (11th Cir. 2006) (quoting Morris v. Crow, 117 F.3d
449, 458 (11th Cir. 1997)).
Even assuming Shi’s speech touched on an issue of public concern, the evidence shows
Shi’s speech was consistently embarrassing, vituperative, and ad hominem, and certainly
disrespectful and insulting. Emails Shi sent throughout 2011 to Defendants and other faculty
referred to Montgomery as power-abusing, anti-democratic, and a dictator, specifically
comparing him to Muammar Gaddafi and Hosni Mubarak. (Doc. 103-5 at 11-13 & 23-25; doc.
103-9 at 6; doc. 103-12 at 5). At the August 15, 2011 meeting, Shi called for Montgomery’s
resignation “in an aggressive and angry manner,” (doc. 103-9 at 6), and called him a liar, a
power-abuser, and bad at his job in front of other University faculty members, (doc. 102 at 14
(citing doc. 100 at 5); doc. 103-8 at 2; doc. 109 at 11). Shi’s behavior at the meeting resulted in
complaints from other faculty members who felt threatened and had concerns for Montgomery’s
safety. (Id.). Furthermore, Shi’s emails made it clear this behavior would not end short of him
being fired or getting his way. (Doc. 103-5 at 15) (“I will keep fighting until either I will be
removed from AAMU or the dean will be removed from his position.”).
“[P]ublic employers do not have to wait for actual disruption or internal damage to take
place . . . ,” Mitchell, 468 F.3d at 1289 (citing Connick, 461 U.S. at 152), and the courts will not
question the government employer’s reasonable determination that conduct will cause future
disruption. See Waters v. Churchill, 511 U.S. 661, 673 (1994) (“[W]e have given substantial
weight to government employers’ reasonable predictions of disruption, even when the speech
involved is on a matter of public concern, and even though when the government is acting as
sovereign our review of legislative predictions of harm is considerably less deferential.”);
Mitchell, 468 F.3d at 1289 & n.31 (finding the government’s determination reasonable and
declining to question that decision). Shi’s behavior was already affecting other faculty members’
state of mind, and the continuation of the behavior could have easily “cause[d] serious
disciplinary problems, undermine[d] employee morale, and impair[ed] harmony among coworkers.” Morris, 117 F.3d at 458. Defendants were well within their rights to take disciplinary
action in response to Shi’s conduct.
Shi asserts the fact he was not put on administrative leave or terminated before August
2011 shows he was not terminated because of the emails and they should not be considered. (See
doc. 111 at 15-19). However, as noted earlier, the fact he was not put on leave or immediately
terminated after any particular email does not mean the threat of continuing those emails, in
conjunction with reports of the effect Shi’s conduct was having on other faculty, did not combine
to result in his being put on leave and ultimately let go. In fact, this tends to work against his
argument he was fired because of the speech itself as opposed to the effect the manner of his
speech was having on the workplace. At times throughout the spring of 2011, Montgomery
responded to Shi’s emails by stating he needed to use the proper protocols and chain of
command and stop sending emails to the faculty mischaracterizing things Montgomery had done.
(Doc. 103-5 at 21 & 28-29). The evidence indicates it was not until Shi confronted Montgomery
personally in front of other faculty, who expressed distress from Shi’s conduct, that Defendants
decided to take disciplinary action against him.
Because Shi has not established disputed facts to support a finding his speech interest
outweighs Defendants’ interest in maintaining efficient workplace operation, Defendants are
entitled to judgment as a matter of law on his First Amendment retaliatory discharge claim and
that claim is DISMISSED.
Based on the foregoing, it is ORDERED:
1. Defendants’ first motion to strike, (doc. 104), is DENIED as MOOT.
2. Defendants’ second motion to strike, (doc. 115), is construed as objections to
Shi’s evidentiary submissions and SUSTAINED IN PART and OVERRULED
IN PART. Specifically, Defendants’ objections to Shi’s conclusory, unsupported
and hearsay statements of fact are SUSTAINED; Defendants’ objection to the
emails attached to Shi’s motion for summary judgment as unauthenticated is
OVERRULED; and Defendants’ remaining objections are MOOT.
3. Defendants’ motion for summary judgment, (doc. 101), is GRANTED and Shi’s
motion for summary judgment, (doc. 109), is DENIED. All of Shi’s claims
against the Defendants are, therefore, DISMISSED. A separate order will be
DONE this the 28th day of September 2015.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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