Sutton v. Arkansas State University et al
ORDER denying 20 Defendants' Motion for Summary Judgment. Signed by Chief Judge J. Leon Holmes on 1/13/2012. (jct)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
TOBY J. SUTTON
No. 3:11CV00123 JLH
PATRICIA BAILEY, individually and in
her official capacity as Vice-Chancellor of
Academic and Student Affairs; and
KELLIE THOMAS, individually and in
her official capacity as Director of Instruction
OPINION AND ORDER
Toby Sutton has sued Patricia Bailey and Kellie Thomas, two officials of Arkansas State
University, pursuant to 42 U.S.C. § 1983, alleging that they violated his procedural due process
rights under the Fourteenth Amendment to the Constitution of the United States by terminating his
employment contract without notice and a hearing. The defendants have moved for summary
judgment, and Sutton has responded. The motion for summary judgment will be denied.1
A court should enter summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden,
the nonmoving party must respond by coming forward with specific facts establishing a genuine
Previously, the defendants—including some who have since been dismissed from the
action—filed a motion to dismiss which the Court granted in part and denied in part. See Sutton v.
Ark. State Univ., No. 3:11CV00123, 2011 WL 3861391 (E.D. Ark. Sept. 1, 2011). Most of the facts
relevant to the instant motion for summary judgment have already been stated in the Court’s
previous order. Id. at *1. Evidence offered by the parties in support of, and opposition to, the
instant motion will be referenced below as necessary.
dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
In deciding a motion for summary judgment, a court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins.
Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if
the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477
U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing
sufficient to establish a necessary element of the case on which that party bears the burden of proof,
the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106
S. Ct. at 2552.
The defendants contend that the undisputed facts establish that Sutton was provided with
adequate procedural due process; that Bailey and Thomas are entitled to qualified immunity; and
that Sutton cannot be reinstated because the term of his employment contract has expired.
Procedural Due Process
“The Due Process Clause of the 14th Amendment provides that, ‘[n]o State shall ... deprive
any person of life, liberty, or property, without due process of law.’ ” Krentz v. Robertson, 228 F.3d
897, 902 (8th Cir. 2000) (citing U.S. Const. amend. XIV, § 1)). “Procedural due process claims
require a two-step analysis.” Id. “Initially, a plaintiff must demonstrate that the state deprived him
of some ‘life, liberty, or property’ interest.” Id. “If successful, the plaintiff must then establish that
the state deprived him of that interest without sufficient ‘process.’ ” Id.
Sutton had an employment contract for a term of nine months during which, according to the
provisions of his employment contract and the faculty handbook, he could be terminated only for
cause. Under Arkansas law, he therefore had a legitimate expectation of continued employment
during that term. See Griffin v. Erickson, 277 Ark. 433, 437, 642 S.W.2d 308, 310 (1982) (“a
contract for a definite term may not be terminated before the end of the term, except for cause or by
mutual agreement, unless the right to do so is reserved in the contract.”); Drake v. Scott, 823 F.2d
239, 241 (8th Cir. 1987) (“The Supreme Court of Arkansas has . . . announced a clear rule: if the
contract of employment (which may be embodied in a personnel manual . . . ) ‘contains an express
provision against termination except for cause [an employee] may not be arbitrarily discharged in
violation of such a provision.’ ”) (quoting Gladden v. Ark. Children’s Hosp., 292 Ark. 130, 136, 728
S.W.2d 501, 505 (1987)); Cisco v. King, 90 Ark. App. 307, 205 S.W.3d 808 (Ark. Ct. App. 2005)
(recognizing that Gladden is still binding Arkansas precedent). Consequently, for the purposes of
ruling on this motion for summary judgment, the Court concludes that Sutton had a constitutionally
protected interest in his employment for the period provided by his employment contract.
“When a state deprives a public employee of a contractually-created property right to
continued employment, that deprivation ‘must be preceded by notice and opportunity for hearing
appropriate to the nature of the case.’ ” Krentz, 228 F.3d at 902 (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)). However, where
adequate post-termination proceedings are available, the level of pre-termination process required
is limited: the employer must provide the employee with notice that he will be terminated and an
opportunity to respond. Id. at 902-03; Richardson v. Booneville School Dist., 766 F. Supp. 2d 910,
916-17 (W.D. Ark. 2011). In order to permit the employee to “present his side of the story,” some
sort of hearing is required. Krentz, 228 F.3d at 903 (quoting Loudermill, 470 U.S. at 546, 105 S. Ct.
1487). The hearing, however, need not be elaborate; perhaps nothing more than an informal meeting
with the employee’s supervisors. Id. Furthermore, “[t]he hearing does not have to precede the
termination decision, but only must precede the termination of benefits.” Id. (quoting Schleck v.
Ramsey Cnty., 939 F.2d 638, 641 (8th Cir. 1991)).
As noted, limited pre-termination process is only sufficient where adequate post-termination
proceedings are available. Id. (quoting Schleck, 939 F.2d at 641-42); see also Richardson, 766 F.
Supp. 2d at 9117.2 In cases similar to the instant one, the Eighth Circuit has identified four basic
requirements of due process for post-termination proceedings:
1) clear and actual notice of the reasons for termination in sufficient detail to enable
him or her to present evidence relating to them;
2) notice of both the names of those who have made allegations against the teacher
and the specific nature and factual basis for the charges;
3) a reasonable time and opportunity to present testimony in his or her own defense;
4) a hearing before an impartial board or tribunal.
Riggins v. Bd. of Regents of Univ. of Neb., 790 F.2d 707, 712 (8th Cir. 1986). There appears to be
some disagreement about whether due process, in the context of a state university professor’s
termination, requires the opportunity to cross-examine or confront adverse witnesses. Compare Id.,
with Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir. 1981); see also Richardson, 766 F. Supp. 2d at
917 (following Nevels); Casada v. Booneville Sch. Dist. No. 65, 686 F. Supp. 730, 732 (W.D. Ark.
In the instant case, it is undisputed that Sutton was first notified of his alleged misconduct
at the meeting with Bailey and Thomas on November 3, 2010.3 At that meeting, Sutton was asked
Extensive post-termination proceedings may even remedy inadequate pre-termination
proceedings. Krentz, 228 F.3d at 902.
The defendants offer affidavit testimony that they discussed Sutton’s Facebook post and
various student complaints at the meeting. While it is undisputed that the Facebook post was
to explain his Facebook post, and stated that he had meant the comment as a joke. Although there
is a factual dispute about whether Sutton was given an opportunity to explain himself at the meeting
before he was told that his employment was terminated, it appears undisputed that his benefits were
not terminated until some weeks later.4
However, the Court cannot find as a matter of law that the post-termination proceedings
available to Sutton were constitutionally adequate. The University’s “Faculty Grievance Procedure”
The grievance is filed with the vice chancellor for academic and student affairs, who
will make an initial determination as to whether the complaint states a grievable
If a grievable issue is stated, the grievant and respondent must represent themselves
before the grievance committee. Legal representation or spokespersons are not
It is unclear whether an employee may seek review by the grievance committee unilaterally, or
whether the vice chancellor must find that the employee has stated a grievable issue in order for the
employee to have the opportunity to take his complaint to the committee. If the latter, then the
grievance procedure falls far short of the minimum requirements of due process elucidated above
because the procedure does not impose upon the vice chancellor any duty to provide the employee
with the names of adverse witnesses or a chance to testify, cross-examine, or even participate in any
discussed, in his affidavit, Sutton denies that the defendants said anything to him about student
The defendants’ evidence shows only that Sutton’s pay period ended on November 15,
2010. It is not clear whether he was paid as if he had worked through the end of this period or
whether this was merely when his final paycheck was issued. However, this factual ambiguity and
its legal significance, if any, is not material to the resolution of this motion.
Elsewhere, the procedure indicates that the vice chancellor is to consult with the human
sort of hearing. Supposing, however, that an employee may take his complaint to the grievance
committee unilaterally, then that committee “will 1) study the written complaint, 2) take testimonies
from concerned parties, 3) examine relevant files and/or documents, and 4) either recommend that
the grievance be dismissed or recommend a remedy.” Although this procedure anticipates that the
employee will be able to testify on his own behalf, it is not clear whether the employee may learn
the names of those witnesses testifying against him or cross-examine them.6
Because the undisputed facts do not resolve these questions, the Court cannot say as a matter
of law that the University’s grievance procedure provides the basic requirements of due process
necessary to render them constitutionally adequate. Consequently, the Court also cannot conclude
as a matter of law that Sutton was provided with sufficient pre-termination process. See Schleck,
939 F.2d at 641 (“The Loudermill Court emphasized that as long as there are adequate
post-termination hearings available, the pre-termination hearing need not be extensive.”) (emphasis
The defendants argue that Sutton has waived his right to challenge the adequacy of the
process provided him by failing to invoke the University’s grievance procedure. See Krentz, 228
F.3d at 904 (citing Riggins, 790 F.2d at 711; Bohn v. Cnty. of Dakota, 772 F.2d 1433, 1441 (8th Cir.
1985)). However, unlike the case presently before the Court, Krentz, Riggins, and Bohn involved
post-termination proceedings that not only satisfied the basic requirements of fair play but were also
rigorous and extensive. Regardless, the Eighth Circuit has recently held that “it is not necessary for
a litigant to have exhausted available postdeprivation remedies when the litigant contends that he
was entitled to predeprivation process.” Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th
For example, if the witnesses may submit written statements or testify outside of the
Cir. 2009). Additionally, the University’s “Faculty Grievance Procedure” specifically provides:
“The employee does not waive any rights under the jurisdiction of outside agencies, including the
judicial system, by using the grievance procedure.”
Perhaps the informal meeting with Bailey and Thomas, where Sutton was informed of the
decision to terminate his employment and given an opportunity to explain himself, could, in another
situation, constitute constitutionally adequate pre-termination process. But see Krentz, 228 F.3d at
903 (relying on “robust post-termination proceedings,” the majority found pre-termination process
“barely” adequate where board did not record hearing, refused to allow attorney to attend, and
refused to answer some of the employee’s question). Here, for the reasons stated above, the Court
concludes that Sutton has shown that a dispute of material fact exists as to whether the defendants
provided him with the procedural due process to which he was entitled.
Qualified immunity will only protect the defendants if their conduct did “not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The defendants contend that they are
entitled to qualified immunity because they “had reasonable grounds for believing that the charges
against plaintiff were true and supported termination.” However, whether an employer had good
reasons to believe that cause existed to terminate an employee is not the relevant inquiry where the
employee alleges that he was not provided with adequate procedural due process. Here, the Court
has concluded that a question of material fact exists regarding whether the defendants violated
Sutton’s procedural due process rights. Furthermore, that conclusion is based on Eighth Circuit
decisions handed down over the past twenty years interpreting the Supreme Court’s opinion in
Loudermill, which was decided in 1985. A reasonable person supervising faculty members at a state
university should be familiar with the due process requirements stated in this line of cases. The
Court cannot say as a matter of law that the defendants are entitled to qualified immunity.
Finally, the defendants contend that Sutton’s request for prospective injunctive relief is moot
because reinstatement at this time would go beyond the term of Sutton’s employment contract.
Furthermore, the defendants assert that Sutton would not have been rehired for the reasons they
decided to terminate his employment. In ruling on the defendants’ motion to dismiss, the Court
identified but did not resolve the question of whether Sutton could be reinstated, now that the term
of his employment contract has past, because the parties had not raised or briefed the issue. The
Court again declined to decide that issue, exercising its discretion to deny summary judgment so that
the record can be more fully developed. See Roberts v. Browning, 610 F.2d 528, 536 (8th Cir. 1979)
(“However, even if a district judge feels that summary judgment in a given case is technically
proper, sound judicial policy and the proper exercise of judicial discretion may prompt him to Deny
the motion and permit the case to be developed fully at trial. The ultimate legal rights of the movant
can always be protected in the course of or even after trial.”); Andrew v. Clark, 561 F.3d 261, 271
(4th Cir. 2009); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure: Civil 3d § 2728, pp. 525-26 (1998) (collecting cases). Sutton asserts the same due
process claim against the defendants in their official capacities as in their individual capacities.
Because his individual capacity claim must proceed to trial, it is appropriate for his official capacity
claim to be adjudicated at the same time. See Taylor v. Rederi A/S Volo, 374 F.2d 545, 549 (3d Cir.
1967) (“It is further settled that the trial court may exercise its discretion in denying summary
judgment where a part of an action may be ripe for summary judgment but it is intertwined with
another claim that must be tried.”). Further, the issue of the defendants’ liability is prior to the
question of the manner of relief to which Sutton is entitled. The Court is unaware of any mandatory
authority squarely addressing the issue of whether reinstatement may be ordered in a case such as
this. The Eighth Circuit has cautioned “that a district judge in order to dispose of a case summarily
should not make the case hard by deciding a difficult or doubtful question of law that might not
survive factual determinations.” Roberts v. Browning, 610 F.2d 528, 536 (8th Cir. 1979) (citing
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 211 (8th Cir. 1976)). If the factfinder concludes that the defendants are not liable, then it will be unnecessary to consider what kind
of relief the law permits, if any.
For the foregoing reasons, the defendants’ motion for summary judgment is DENIED.
IT IS SO ORDERED this 13th day of January, 2012.
J. LEON HOLMES
UNITED STATES DISTRICT COURT
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