Chu v. Mississippi State University et al

Filing 91

MEMORANDUM OPINION re 90 Order on Motion to Dismiss. Signed by Senior Judge Glen H. Davidson on 10/3/12. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

PLAINTIFF

DR. YULCHU
v.

CIVIL ACTION NO. I :08-CV -00232-GHD-DAS

MISSISSIPPI STATE UNIVERSITY;
BOARD OF TRUSTEES, INSTITUTIONS OF HIGHER LEARNING;
DR. ROBERT H. "DOC" FOGELSONG, Individually and Officially;
DR. D.E. MAGEE, JR., Individually and Officially; and
DR. THOMAS C. MEREDITH, Commissioner, Individually and Officially

DEFENDANTS

MEMORANDUM OPINION
Presently before the Court are Defendants' motion to dismiss [44] all claims except the
Title VII claim, and Plaintiff's motion to compel immunity-related discovery [58]. Upon due
consideration, the Court is of the opinion that the motion to dismiss [44] should be granted and
the motion to compel [58] should be denied as moot.
A. Factual and Procedural Background
Plaintiff Dr. Yul Chu ("Plaintiff') was a non-tenured professor at Mississippi State
University ("MSU") for several years until he was denied tenure and terminated from his
position. Plaintiff, a proclaimed native of Korea, alleges that he was the victim of discrimination
during his employment, and that he was terminated for discriminatory reasons. Accordingly,
Plaintiff has commenced this suit against Defendants MSU; the Board of Trustees, Institutions of
Higher Learning (the "Board"); as well as Dr. Robert H. "Doc" Fogelsong; Dr. D.E. Magee, Jr.;
and Dr. Thomas C. Meredith, Commissioner, all individually and officially (collectively,
"Defendants"}. 1 From 2001 until 2007, Plaintiff apparently was employed as an assistant
professor at MSU. During this time period, it appears that the parties executed employment
1 At the time the Board voted to deny Plaintiff's request for board review in August of 2001, Dr.
Fogelsong was President of MSU, while Dr. Magee and Dr. Meredith served as trustee and commissioner of the
Board, respectively.

contracts for each of the six academic years that fell within that period. At some point, Plaintiff
was approved for tenure-track status, and Plaintiff applied for tenure. Plaintiff's application for
tenure was denied, and Plaintiff alleges he was told he would be terminated from his position at
MSU. Plaintiff appealed to the Board. On August 15, 2007, the Board unanimously voted to
deny Plaintiff's request for board review, thus confirming the denial of tenure. Plaintiff executed
a contract on August 20, 2007. See Employment Contract [53-3] at 1. Under the terms of the
contract, which covered the period of August 16, 2007 until May 15, 2008, Plaintiff worked as
an "assistant professor, electrical and computer engineering (tenure track)" at MSU.

The

contract states that it is subject to the "laws of the State of Mississippi" and to termination for
certain enumerated reasons at any time prior to the contract's termination date, May 15,2008.
In this action, Plaintiff asserts several theories of recovery, including alleged violations of
his constitutional rights to substantive and procedural due process and equal protection under 42
U.S.C. § 1983, employment discrimination under Title VII of the Civil Rights Act, and breach of
contract under state law.

Plaintiff alleges that during his employment at MSU he suffered

discrimination "because he is a native of Korea and because of his distinctive skin color and
accent" and that "Defendants' employment policies have discriminated against at least one other
person in [Plaintiffs] Department of non-American origin" who "also had a distinctive skin
color, ethnicity, and speech." Id

~~

7, 9, 11-12.

Plaintiff additionally alleges that despite

knowledge of the alleged discrimination, Defendants failed to conduct a prompt, remedial
investigation into Plaintiff s allegations of discrimination.

Plaintiff avers that Defendants

unlawfully terminated him due to his race and national origin, and failed to conduct a prompt,
remedial investigation following his termination, despite awareness of Plaintiff's past allegations
of discrimination.

Finally, Plaintiff alleges that Defendants "discriminatorily applied their

2

policies" and failed to follow their own policies in violation of "Plaintiffs contractual
relationship with [D]efendants" in violation of both federal and state law. Id.

~

10. Plaintiff

seeks actual damages, injunctive relief, and any other relief to which he is entitled, including
possible reinstatement with full benefits.
Defendants have filed a motion to dismiss [44] all claims except the Title VII claim
against MSU and the Board. Plaintiff has filed a subsequent motion to compel discovery relating
to immunity issues [58].2 The parties informed the Court that immunity-related discovery was
complete, and the Court entered an Order [78] establishing a briefing schedule for supplemental
responses and briefing to add discovery materials to the filings on the motion to dismiss. The
parties then filed supplemental briefs regarding these issues.

B.

Legal Standards

"The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid
claim when all well-pleaded facts are assumed true and are viewed in the light most favorable to
the plaintiff." Lone Star Fund V (US), L.P. v. Barclays Bank PLC, 594 F.3d 383,387 (5th Cir.
2010) (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). Of
course, the complaint must allege "enough facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544,570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
The court must not evaluate the likelihood of the claim's success, but instead ascertain whether
the plaintiff has stated a legally cognizable claim that is plausible. Lone Star Fund, 594 F.3d at
387 (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).
"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
2 The Court notes that the Order staying the case [57] provided that "[t]his case, all deadlines of this case,
all discovery, including but not limited to any outstanding discovery, are stayed except as to any discovery which
may be filed on the immunity issue only.") (emphasis added).

3

Rule 56." FED. R. Crv. P. 12(d). Because in considering the motion to dismiss the Court has
reviewed the parties' attached matters outside the pleadings which this Court shall not exclude,
the motion shall be considered a motion for summary judgment brought pursuant to Rule 56 of
the Federal Rules of Civil Procedure.
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing 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., 477 U.S. at 322, 106 S.
Ct. 2548. The party moving for summary judgment bears the initial responsibility of informing
the district court ofthe basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S. Ct. 2548. Under
Rule 56(a) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to
"go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories,
and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' "
Id. at 324, 106 S. Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995).
C.

Discussion and Analysis

Defendants argue that the Court should dismiss all of Plaintiff s claims except the Title

VII claim against MSU and the Board. Defendants present the following specific arguments in

4

support of dismissal: (1) the Eleventh Amendment bars Plaintiffs theories of recovery under
Section 1983, and Plaintiff has otherwise failed to state a claim for relief under Section 1983; (2)
both the Eleventh Amendment and the Mississippi Tort Claims Act (the "MTCA") bar Plaintiffs
state law breach of contract claim, the individually named Defendants are otherwise entitled to
good faith immunity and/or qualified immunity, and the statute of limitations has run on the
claim; and (3) Plaintiff's Title VII claim is barred to the extent it is asserted against the
individually named Defendants, as such Defendants are not "employers" for purposes of Title

VII.
The Court addresses the arguments for dismissal as follows: (1) whether the Eleventh
Amendment bars Plaintiffs theories of recovery under Section 1983 and state law for breach of
contract; (2) whether any remaining theories of recovery under Section 1983 are barred under
principles of qualified immunity or failure to state a claim under Rule 12(b)(6); (3) whether any
remaining breach of contract theories are barred under principles of qualified immunity; and (4)
whether the Title VII claim is barred to the extent it is asserted against the individually named
Defendants. 3
1. Eleventh Amendment Immunity - Section 1983 Claims and Breach of Contract Claim
a.

Eleventh Amendment Background

First, Defendants argue that Plaintiff's theories of recovery under Section 1983 and state
law for breach of contract are barred by Eleventh Amendment immunity. Courts should address
Eleventh Amendment immunity challenges prior to reaching the merits of a case. See United
States v. Tex. Tech Univ., 171 F.3d 279, 285-86 (5th Cir. 1999). Sovereign immunity is a broad

jurisdictional doctrine prohibiting suit against the government absent the government's consent.

3 Because the Court finds the breach of contract claim is otherwise barred, the Court need not reach the
issues of whether the claim is barred by the MTCA or an applicable statute oflimitations.

5

Sovereign immunity was assumed at common law, brought from England to the colonies, and
existed prior to the ratification of the United States Constitution. Although the term "sovereign
immunity" nowhere appears in the Constitution, the concept was perhaps woven into the very
fabric of the document. Andrew Hamilton explained:
It is inherent in the nature of sovereignty not to be amenable to the
suit of an individual without its consent. This is the general sense,
and the general practice of mankind; and the exemption, as one of
the attributes of sovereignty, is now enjoyed by the government of
every State in the Union.
THE FEDERALIST No. 81, at 511 (Alexander Hamilton) (Wright ed., 1961). At the Virginia
ratifying convention, James Madison stated: "Jurisdiction in controversies between a state and
citizens of another state is much objected to, and perhaps without reason. It is not in the power
of any individuals to call any state into court." 3 DEBATES ON THE FEDERAL CONSTITUTION 533

(1. Elliot 2d ed., 1854). At that same convention, John Marshall stated: "With respect to disputes
between a state and the citizens of another state, its jurisdiction has been decried with unusual
vehemence. I hope no gentleman will think that a state will be called at the bar of the federal
court." 3 id., at 555.
Despite the long-standing principle of sovereign immunity, in 1793, the United States
Supreme Court held that a state could be sued by a citizen of another state or a foreign country.
See Chisolm v. Georgia, 2 Dall. 419,1 L. Ed. 440 (1793). But five years later, the states ratified
the Eleventh Amendment, which provides: "The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S.
CONST. AMEND. XI; see C. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 64­
75 (1972).

The Fifth Circuit has stated: "Eleventh Amendment immunity operates like a

6

jurisdictional bar, depriving federal courts of the power to adjudicate suits against a state."

Union Pac. R. Co. v. La. Pub. Servo Comm'n, 662 F.3d 336, 340 (5th Cir. 2011) (internal
citations omitted). "The Eleventh Amendment grants a State immunity from suit in federal court
by citizens of other States, and by its own citizens as well." Lapides

V.

Ed. ofRegents, 535 U.S.

613, 616, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002) (citation omitted).

Indeed, "[t]he

amendment has been judicially construed to bar federal jurisdiction over suits brought against a
state by its own citizens, despite the absence of language to that effect." See Jagnandan

V.

Giles,

538 F.2d 1166, 1177 (5th Cir.), cert. denied, 432 U.S. 910, 97 S. Ct. 2959, 53 L. Ed. 2d 1083
(1977) (internal citations omitted). Both federal and state law claims are barred from being
asserted against a state in federal court. Pennhurst State Sch. & Hosp.

V.

Halderman, 465 U.S.

89, 119-21, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).4
State immunity "extends to any state agency or entity deemed an 'alter ego' or 'arm' of
the state." Perez v. Region 20 Educ. Servo Ctr., 307 F.3d 318,326 (5th Cir. 2002). "This
immunity also extends to state officials who are sued in their official capacities because such a
suit is actually one against the state itself." New Orleans Towing Ass 'n, Inc. v. Foster, 248 F.3d
1143,2001 WL 185033, at *3 (5th Cir. Feb. 6, 2001); see Hafer v. Melo, 502 U.S. 21,25, 112 S.
Ct. 358,116 L. Ed. 2d 301 (1991) (citing Ky. v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87
L. Ed. 2d 114 (1985)); Pennhurst, 465 U.S. at 117, 104 S. Ct. 900.

b.

Eleventh Amendment Analysis

Plaintiff has brought Section 1983 claims and the breach of contract claim against MSU,
the Board, and the individually named Defendants in their personal and official capacities.

4 Congress did not abrogate Eleventh Amendment immunity by granting federal courts supplemental
jurisdiction over state law claims in 28 U.S.C. § 1367(a). See Raygor v. Regents of Univ. ofMinn., 534 U.S. 533,
541-42, 122 S. Ct. 999, 152 L. Ed. 2d 27 (2002).

7

Based on the following reasoning, the Court finds: (i) the Eleventh Amendment bars the Section
1983 claims and breach of contract claim against MSU, the Board, and the individually named
Defendants in their official capacities, unless an exception applies; (ii) the Eleventh Amendment
bars any injunctive relief sought against the individually named Defendants in their personal
capacities, unless an exception applies; and (iii) the Eleventh Amendment does not bar any
monetary relief sought against the individually named Defendants in their personal capacities.
It is well settled that Defendants MSU and the Board are arms of the State, and as such,
are immune from suit under the Eleventh Amendment unless an exception applies. See MISS.
CODE ANN. § 37-113-3; Jagnandan, 538 F.2d at 1173-78 (a suit against MSU is a suit against
the State, as any recovery would come from the State). The Fifth Circuit has explained:
The genesis of Mississippi State University (M.S.U.) is found in
Chapter XIX of the Laws of the State of Mississippi, approved
February 28, 1878. The school was first known as the Agricultural
and Mechanical College of the State of Mississippi. Laws of
Mississippi, ch. XIX, § 2. Overseeing the school was a Board of
Trustees appointed by the Governor with the advice and consent of
the state senate. Id § 3. The Board was declared to be a body
politic and corporate, capable of suing and being sued. Id § 5.
The Governor was the ex officio president. Id § 6. The State
Treasurer was the ex officio treasurer, empowered to keep and
disburse all moneys of the school according to the orders of the
Board. Id § 8. Later, Mississippi's universities were placed under
the control of the Board of Trustees of state institutions of higher
learning. The Agricultural and Mechanical College of Mississippi
logo was changed to Mississippi State University by statute,
although the school retained "all its property and the franchises,
rights, powers, and privileges heretofore conferred on it by law
(1878 Act) ...." MISS. CODE ANN. § 37-113-3 (1972).
Jagnandan, 538 F.2d at 1174 (footnotes omitted).

The Fifth Circuit further stated: "This

statutory scheme clearly demonstrates the State of Mississippi's control over the fiscal policies
established by the Board, and a fortiori over the finances of M.S.U." Id at 1175. The Fifth
Circuit found that "[s]tate decisional law confirms that the Board and the University are part and
8

parcel of the state." Id. In Coleman v. Whipple, 2 So. 2d 566 (Miss. 1941), the Mississippi
Supreme Court found that the Board was "the managing board or head of the university . . .
created by the State through its legislature which, under its act of creation (Sec. 5) retains the
right to repeal the entire act; its property is owned by the State and the university is as an arm of
the State, the State itself." 2 So. 2d at 568. The Mississippi Supreme Court stated that the acts
creating MSU "must be similarly construed, and such construction is not at all affected by
Chapter 127 of the Laws of 1932, creating a single board of trustees for all the state institutions
of higher learning." Id. at 567. Thus, the Section 1983 claims and breach of contract claim
against MSU and the Board are barred under the Eleventh Amendment unless an exception
applies.
The Eleventh Amendment does not per se bar suits against state officers in their personal
capacities for damages, as such suits are not suits against the state for purposes of Eleventh
Amendment immunity. See Arizonans for Official English, 520 U.S. at 117, S. Ct. 1055; Wilson
v. UT Health Ctr., 973 F.2d 1263, 1271 (5th Cir. 1992), cert. denied, 507 U.S. 1004, 113 S. Ct.
1644, 123 L. Ed. 2d 266 (1993); Hays Cnty. Guardian v. Supple, 969 F.2d 111, 125 (5th Cir.
1992), cert. denied, 506 U.S. 1087,113 S. Ct. 1067,122 L. Ed. 2d 371 (1993); Crane v. Tex.,

759 F.2d 412, 428 n.l7 (5th Cir. 1985), cert. denied, 474 U.S. 1020 (1985). However, "the
distinction between official-capacity suits is more than' a mere pleading device.' " Hafer, 502
U.S. at 27, 112 S. Ct. 358.
In the case sub judice, Plaintiff seeks injunctive and monetary relief from Defendants.
Any injunctive relief, such as specific performance, would operate against the State and not the
individual Defendants. Therefore, the Eleventh Amendment bars all injunctive relief sought by

9

Plaintiff-whether against the State or the individually named Defendants-as any injunction
would be against the State.
However, this Court holds that the Eleventh Amendment does not bar Plaintiffs claims
for monetary relief to be paid from the individually named Defendants' own pockets, as any such
relief would not be against the State itself, but would impact only the individually named
Defendants. See Graham, 473 U.S. at 167-68, 105 S. Ct. 3099; Foster, 2001 WL 185033, at

Therefore, unless an exception applies, the Eleventh Amendment bars the Section 1983
claims and breach of contract claim, except to the extent those claims seek monetary relief from
the individually named Defendants in their personal capacities.

There are three possible

exceptions to Eleventh Amendment immunity: (i) valid abrogation by Congress; (ii) waiver or
consent to suit by the state; or (iii) the state's amenability to suit under the Ex parte Young
doctrine.
(i) Abrogation
Abrogation applies only if Congress has unequivocally expressed its intent to abrogate a
state's sovereign immunity and is acting pursuant to a valid exercise of power. See Seminole
Tribe ofFla. v. Florida, 517 U.S. 44, 55, 116 S. Ct. 1114, 134 L.Ed.2d 252 (1996). Section 1983
does not explicitly indicate Congress's intent to abrogate a state's Eleventh Amendment
immunity from suit. See Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358
(1979); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Nor has
Congress expressed any intent to abrogate the state's sovereign immunity from suit on breach of

5 Because the Section 1983 claims and breach of contract claim for monetary relief against the
individually named Defendants in their individual capacities are not impacted by Eleventh Amendment immunity,
these claims are addressed later in this opinion.

10

contract claims.

Thus, abrogation does not apply as an exception to Eleventh Amendment

immunity in the case sub judice.
(UJ Waiver/Consent to Suit

Eleventh Amendment sovereign immunity from suit is waiveable, but such waiver must
be clearly stated and will not be easily implied. Idaho v. Coeur d'Alene Tribe ofIdaho, 521 U.S.
261,267,117 S. Ct. 2028,138 L. Ed. 2d 438 (1997); Jagnandan, 538 F.2d at 1117 (citing
Edelman, 415 U.S. at 673, 94 S. Ct. 1347; Petty v. Tenn.-Mo. Bridge Comm 'n, 359 U.S. 275,
276, 79 S. Ct. 785, 3 L. Ed. 2d 804 (1959)).
The Fifth Circuit has stated that
[n]o mention is made of the power to sue or to be sued either in the
organizational statutes or in the general powers and duties of the
Board. Under specific circumstances the Board is allowed to sue
or be sued. In these instances, however, the waiver is limited to a
narrowly defined activity. The consent to be sued is not given with
such clarity as to amount to a waiver of Eleventh Amendment
protection.
Jagnandan, 538 F.2d at 1177 (footnotes omitted); see MISS. CODE ANN. §§ 37-101-3, 37-101-7,
37-101-15 (1972). The Mississippi Code provides in pertinent part that "[MSU] shall continue
to exist as a body-politic and corporate, ... with all its property and the franchises, rights,
powers, and privileges heretofore conferred on it by law, or properly incident to such a body and
necessary to accomplish the purpose of its creation [.]" MISS. CODE ANN. § 37-113 -3. The Fifth
Circuit has stated that "[t]his provision ... lacks the clarity needed in order to infer the state's
consent to be sued." Jagnandan, 538 F.2d at 1178. Accordingly, it cannot be said that the
Defendants have waived or consented to be sued on the state law breach of contract claim.
States (including arms of the state and state officers in their official capacities) are immune from
suit on Section 1983 claims under the Eleventh Amendment, as states are not "persons" subject

11

to liability under Section 1983. Arizonans for Official English, 520 U.S. at 69 & 69 n.24, 117 S.
Ct. 1055; see Will v. Mich. Dep't ofState Police, 491 U.S. 58,66, 109 S. Ct. 2304, 105 L. Ed. 2d
45 (1989).
Plaintiff argues, unavailingly, that Defendants have otherwise waived or consented to be
sued. First, Plaintiff contends that Defendants' acceptance of vast federal funding constitutes a
waiver of sovereign immunity. The Court finds the argument unpersuasive, as the Fifth Circuit
has previously rejected such an argument. See McGarry v. Univ. of Miss. Med. Ctr., 355 F.
App'x 853,856 (5th Cir. 2009); Sullivan v. Univ. ofTex. Health Sci. Ctr., 217 F. App'x 391, 395
(5th Cir. 2007).
Second, Plaintiff contends that Defendants have voluntarily consented to suit by engaging
in extensive discovery, agreeing to numerous trial settings, and otherwise participating in the
case. Defendants maintain that they were sued involuntarily by Plaintiff and have not consented
to suit by participation. The Court agrees. Defendants have done nothing to actively invoke this
Court's jurisdiction. Therefore, the Court finds that Defendants have neither waived sovereign
immunity nor consented to suit on either the Section 1983 claim or the state law breach of
contract claim, and the second exception to Eleventh Amendment immunity does not apply in
this case.
(iii) Ex parte Young Doctrine

The third and final possible exception to Eleventh Amendment immunity is the state's
amenability to suit under the Ex parte Young doctrine. As the following reasoning will show, the
Court finds that all Section 1983 claims are barred by the Eleventh Amendment, except (i) the
Section 1983 claims seeking monetary relief from the individually named Defendants in their
personal capacities, and (ii) the Section 1983 claims for injunctive relief against the individually

12

named Defendants in their official capacities. The Court finds that the breach of contract claim
is barred by the Eleventh Amendment except to the extent Plaintiff seeks monetary relief from
the individually named Defendants in their personal capacities.

Ex parte Young - Section 1983 Claims
To overcome Eleventh Amendment immunity, the plaintiff must bring an action
grounded in federal law for monetary relief that is "ancillary" to injunctive relief against named
state officials. Edelman v. Jordan, 415 U.S. at 667-68,94 S. Ct. 1347. Plaintiffs Section 1983
claims for monetary damages are not ancillary to any injunctive relief sought, and Ex parte

Young does not allow Section 1983 suits for damages against a state. See Pennhurst, 465 U.S. at
104-05, 104 S. Ct. 900. Thus, such claims are barred by the Eleventh Amendment.
Plaintiff's Section 1983 claims for injunctive relief are permitted only if brought against
the appropriate state officials and seeking prospective relief to end a continuing violation of
federal law. See id., 104 S. Ct. 900; Walker v. Livingston, 381 F. App'x 477, 478 (5th Cir. 2010)
(citing Seminole Tribe, 517 U.S. at 73, 116 S. Ct. 1114 (citing Ex parte Young, 209 U.S. 123,28
S. Ct. 441, 52 L. Ed. 714 (1908))). "In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a 'straightforward inquiry
into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.'''

Idaho, 521 U.S. at 296, 117 S. Ct. 2028 (O'Connor, J.,

concurring in part and concurring in judgment). Plaintiffs Section 1983 claims for injunctive
relief against MSU and the Board are barred, as neither Defendant is a state official responsible
for enforcing the federal law at issue. Thus, it remains for the Court to determine whether
Plaintiff's Section 1983 claims for injunctive relief may be asserted against the individually
named Defendants in their official capacities.

13

"Section 1983 imposes liability on anyone who, under color of state law, deprives a
person 'of any rights, privileges, or immunities secured by the Constitution and laws.' [T]his
provision safeguards certain rights conferred by federal statutes." Blessing v. Freestone, 520
U.S. 329,340, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997) (citing Maine v. Thiboutot, 448 U.S. 1,
100 S. Ct. 2502, 65 L. Ed. 2d 555 (1980)). Plaintiff alleges that Defendants, acting under color

of state law, violated federal law by depriving Plaintiff of constitutional rights including his right
to equal protection, both procedural and substantive due process, and liberty interests. Because
Plaintiff has asserted that his termination from his position at MSU was unlawful and seeks
injunctive relief for the same from named state officials, Plaintiff has alleged prospective relief
for ongoing violations of federal law against those officials. See Nelson v. Univ. of Tex. at Dall.,
535 F.3d 318, 324 (5th Cir. 2008) (former state university employee's request for reinstatement
of employment in his suit for FMLA and constitutional violations was "a claim for prospective
relief designed to end a continuing violation of federal law" and thus within the Ex parte Young
exception to Eleventh Amendment immunity). Thus, Ex parte Young allows Plaintiffs Section
1983 claims for prospective injunctive relief against the individually named Defendants in their
official capacities.
Ex parte Young - Breach of Contract Claim

Plaintiffs breach of contract claim for injunctive relief against MSU, the Board, and the
individually named Defendants in both their personal and official capacities is barred by Ex parte
Young, which does not allow injunctive relief requiring a state official to conform his future

conduct to state law. Plaintiffs breach of contract claim for monetary relief is similarly barred,
except insofar as it is asserted against the individually named Defendants in their personal
capacities.

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2. Remaining Section 1983 Claims - Qualified Immunity and Rule 12(b)(6)

Defendants argue that Plaintiffs claims for relief under Section 1983 are barred against
the individually named Defendants due to their immunity as state employees. Defendants further
argue that any remaining Section 1983 claims must be dismissed for failure to state a claim. The
Court finds both of these arguments well taken.
As stated above, Plaintiffs only Section 1983 claims remaining after the Eleventh
Amendment analysis are those for prospective injunctive relief against the individually named
Defendants in their official capacities, and those for monetary damages against the individually
named Defendants in their personal capacities. Based on the following analysis, the Court finds
that Plaintiffs Section 1983 claims against the individually named Defendants in their personal
capacities are barred under principles of qualified immunity, and Plaintiffs remaining Section
1983 claims for prospective, injunctive relief must be dismissed for failure to state a claim under
Rule 12(b)(6).
The Fifth Circuit has recognized that Section 1983 claims against public officials are
subject to a heightened pleading requirement; a plaintiff is required to assert "claims of specific
conduct and actions giving rise to a Constitutional violation." Baker v. Putnal, 75 F.3d 190, 195
(5th Cir. 1996). "State officers are subject to [Section] 1983 liability for damages in their
personal capacities ... even when the conduct in question relates to their official duties."
Arizonans for Official English, 520 U.S. at 69 n.24, 117 S. Ct. 1055 (citing Hafer, 502 U.S. at

25-31, 112 S. Ct. 358). "Personal-capacity suits ... seek to impose individual liability upon a
government officer for actions taken under color of state law" that "caused the deprivation of a
federal right." Hafer, 502 U.S. at 25, 112 S. Ct. 358 (citing Graham, 473 U.S. at 166, 105 S. Ct.
3099). Pertinent to the case sub judice, the employment decisions of state officials are subject to
suit under Section 1983. See id. at 21, 112 S. Ct. 358. State officials sued in their personal
15

capacities are only immune from suit if they assert a valid personal immunity defense under
existing law, such as qualified immunity. Id. at 25, 29, 112 S. Ct. 358; Graham, 473 U.S. at
166-67, 105 S. Ct. 3099.
In evaluating a claim of qualified immunity, courts consider (1) whether the plaintiff has
alleged a violation of a constitutional right, and (2) whether that right was clearly established at
the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L.
Ed. 2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172
L. Ed. 2d 565 (2009). Courts have discretion to determine which of these questions to address

first. Pearson, 555 U.S. at 236, 129 S. Ct. 808.
Qualified immunity bars suit against state officials "if their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known." Walker, 381 F. App'x 479 (quoting Pearson, 555 U.S. at 231, 129 S. Ct. 808 (internal
citation omitted)). In other words, it must be such that "it would be clear to a reasonable officer
that his or her conduct was unlawful." Id. "The facts alleged, taken in the light most favorable
to the party asserting the injury, must show that the officer's conduct violated a constitutional
right." Id. (citing Price v. Roark, 256 F.3d 364,369 (5th Cir. 2001)).
"An individual sued in his personal capacity cannot be held liable under [Section] 1983
unless he was either personally involved in the acts causing deprivation of a constitutional right,
or a causal connection exits between the act and the alleged constitutional violation." Hamad v.
Gary DeShazo & Assocs., 95 F.3d 1149, 1996 WL 481362, at *1 (5th Cir. Aug. 14, 1996) (per

curiam). If an official's conduct was objectively reasonable, it does not matter if that official's
conduct violated a constitutional right; he is still entitled to qualified immunity. Nerren v.
Livingston Police Dep't, 86 F.3d 469, 473 (5th Cir. 1996). In order to overcome Defendants'

16

defense of qualified immunity, Plaintiff's complaint must allege facts that, if true, demonstrate
that each individual Defendant violated his rights by acting in a way that he or she should have
known was unlawful. "When considering a defendant's entitlement to qualified immunity, we
must ask whether the law so clearly and unambiguously prohibited his conduct that 'every
reasonable official would understand that what he is doing violates [the law].'" Morgan v.

Swanson, 659 F.3d 359,371 (5th Cir. 2011) (citing Ashcroft v. Al-Kidd, _

U.S. _ _, 131 S.

Ct. 2074, 2083,179 L. Ed. 2d 1149 (2011) (internal citation omitted». The Plaintiffhas asserted
due process and equal protection claims under Section 1983. The Court examines Plaintiff's
claims against each of the individually named Defendants in their personal capacities in light of
this standard.

a. Due Process Claims
The Plaintiff alleges that Defendants violated his due process rights by failing to conduct
a prompt, remedial investigation of Plaintiff's allegations of discrimination, despite knowledge
of these allegations. He also alleges that Defendants discriminatorily applied their employment
policies as part of their contractual relationship with Plaintiff and that Defendants breached their
contract with him. Plaintiff further alleges that Defendants did not prevent the discriminatory
conduct, but instead allowed, ratified, or perpetrated the discrimination.
The Due Process Clause of the Fourteenth Amendment includes a procedural component
and a substantive component. Daniels v. Williams, 474 U.S. 327, 331,106 S. Ct. 662, 88 L. Ed.
2d 662 (1986). "The requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd

of Regents of State Colis. v. Roth, 408

u.s.

564, 566-67, 92 S. Ct. 2701, 33 L. Ed. 2d 548

(1972).

17

Similarly, substantive due process offers protection to an individual only if that person
has either a "constitutionally protected property interest," Regents ofthe Univ. ofMich. v. Ewing,
474 U.S. 214,222, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985), or a similarly protected liberty
interest, Kelley v. Johnson, 425 U.S. 238, 244, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). Thus,
the validity of Plaintiffs due process claims hinges on whether he had a constitutionally
protected property interest or similarly protected liberty interest in his position as a professor at
MSU. See Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1528 (5th Cir. 1993) (the
procedural due process clause of the Fourteenth Amendment is "implicated only if a person has a
constitutionally recognized interest in life, liberty, or property").
(i) Protected Property Interest

Whether Plaintiff possessed a protected property interest in his position at MSU is
"determined by reference to state law," Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 252 (5th
Cir. 1984), and must "stem from independent sources such as state statutes, local ordinances,
existing rules, contractual provisions, or mutually explicit understandings," Blackburn v. City of
Marshall, 42 F.3d 925, 936-37 (5th Cir. 1995). "To have a property interest in a benefit, a

person clearly must have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth,
408 U.S. at 577, 92 S. Ct. 2701. The United States Supreme Court held in Roth that "[a]n at-will
college professor had no 'property' interest in his job within the meaning of the Fourteenth
Amendment so as to require the university to hold a hearing before terminating him." Conn v.
Gabbert, 526 U.S. 286, 291, 119 S. Ct. 1292, 143 L. Ed. 2d 399 (1999) (citing Roth, 408 U.S. at

578, 92 S. Ct. 2701). "Absent a state statute or university rule or 'anything approaching a
"common law" of re-employment,' however, we held that Dr. Roth had no property interest in

18

the renewal of his teaching contract." Ewing, 474 U.S. at 223 n.9, 106 S. Ct. 507 (citing Roth,
408 U.S. at 578 n.l6, 92 S. Ct. 2701).
In Roth, an assistant professor was hired for a fixed term of one
academic year, and had no tenure. The Court held that the teacher
had no property interest in the job, since the terms of employment
The critical
allowed that his contract not be renewed.
consideration was that the terms "did not provide for contract
renewal absent 'sufficient cause." The rights to continued
employment were determined by state law. The Court took great
pains, however, to point out that a tenured appointment, providing
for entitlement to a job, absent cause, would be a far different case.
Arnett v. Kennedy, 416 U.S. 134, 184-85,94 S. Ct. 1633 (1974) (internal citation omitted).

The Fifth Circuit has stated:
Mississippi law is clear that neither state legislation nor
state regulations create a legitimate expectation of continued
employment for a non-tenured faculty member:
Section 37-101-15(f) [Miss.
Code Ann.] ... empowers the Board
of Trustees to terminate employment
contracts
at
any
time
for
malfeasance,
inefficiency
or
contumacious conduct, but does not
create a legitimate expectation of
continued employment for a non­
tenured employee.
Whiting v. Univ. o/So. Miss., 451 F.3d 339, 344 (5th Cir. 2006) (quoting Wicks v. Miss. Valley
State Univ., 536 So. 2d 20, 23 (Miss. 1988) (internal citations omitted)).

In the case sub judice, Plaintiff was employed for a certain amount of time as a tenuretrack professor at MSU. Employment decisions were made by the Board. The Court has no
documentation before it to provide further details of Plaintiffs employment.

Plaintiff has

attached to his brief in support of his response to the motion to dismiss a copy of a terminal
employment contract providing that Plaintiff would be employed from August 16, 2007 until

19

May 15, 2008 as an "assistant professor, electrical and computer engineering (tenure track) at
Mississippi State University," subject to termination for any of the following reasons:
a.
b.
c.
d.

Financial exigencies as declared by the Board;
Termination or reductions of programs, academic or
administrative units as approved by the Board;
Malfeasance, inefficiency or contumacious conduct;
For cause.

Id. (emphasis in original). The contract further states that "[e]mployment in this capacity will
not be offered for the Fiscal Year 2008 ~ 2009." 1d. 6
The Court determines from this information that at the time of his termination Plaintiff
had no cognizable property interest in continued employment with MSU, and thus he has no
viable substantive or procedural due process claim.

See, e.g., Hoffmans v. Univ. of Tex. at El

Paso, 22 F.3d 1093, 1994 WL 198869, at *2 (5th Cir. 1994) (per curiam) (university professor

had no cognizable property interest in an expected pay raise because any pay raise she received
was dependent upon whether her appointment was approved each year by the Board of Regents).

"A mere breach of contract will not suffice for an action under [Section] 1983 without a violation
of due process rights." Whiting, 451 F.3d at 345 (citing Bishop v. Wood, 426 U.S. 341,

349~50,

96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976)). Consequently, the Court finds the Plaintiff had no
protected property interest in his position at MSU. The Court now must determine whether the
Plaintiff had a protected liberty interest in his position at MSU.
(ii) Protected Liberty Interest Claim

Protected liberty interests include the freedom to work and earn a living. Roth, 408 U.S.
at 577, 92 S. Ct. 2701. To determine if a public employee has been deprived of a protected

6 The Court notes that the copy of the employment contract attached to Plaintiffs brief is executed and
dated only by the Plaintiff and not by the Board. However, the Defendants concede in their answers to the
complaint that "Plaintiff ... worked under a terminal Contract he signed on August 20, 2007 until about May of
2008."

20

liberty interest, courts must find that the employee was either "terminated for a reason which was
(i) false, Oi) publicized, and (iii) stigmatizing to his standing or reputation in his community[,] or
[ ] terminated for a reason that was (i) false and (ii) had a stigmatizing effect such that (iii) he
was denied other employment opportunities as a result." Cabrol v. Town of Youngsville, 106
F.3d 101, 107 (5th Cir. 1997) (citing Roth, 408 U.S. at 564,92 S. Ct. 2701; Codd v. Velger,429
U.S. 624, 627-28, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977) (per curiam)); Moore v. Miss. Valley
State Univ., 871 F.2d 545,549 (5th Cir. 1989); Wells, 736 F.2d at 256-57. The Court determines
that because Plaintiff has not alleged facts showing either of these scenarios, Plaintiff has not
stated a claim for a constitutionally protected liberty interest of which he could have been
deprived by the actions of the individually named Defendants. Therefore, the Court finds that
Plaintiff has not asserted a viable due process claim under Section 1983.
b. Equal Protection

Plaintiff next alleges that the individual Defendants treated him differently than others
similarly situated because of his national origin, race, and speech in violation of his equal
protection rights under Section 1983. See Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir.
1992). He avers that the Defendants discriminated against him and at least one other professor
who also had a distinctive skin color, ethnicity, and speech.
"The Equal Protection Clause reaches only state actors, but [Section] 1983 equal
protection claims may be brought against individuals as well as municipalities and certain other
state entities." Fitzgeraldv. Barnstable Sch. Comm., 555 U.S. 246,257,129 S. Ct. 788,172 L.
Ed. 2d 582 (2009) (citing West v. Atkins, 487 U.S. 42,48-51, 108 S. Ct. 2250, 101 L. Ed. 2d 40
(1988»). States must treat "all persons similarly situated" alike. Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). However, plaintiffs

21

bringing equal protection claims must prove the existence of purposeful discrimination.

McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).
"Discriminatory purpose . . . implies that the decisionmaker singled out a particular group for
disparate treatment and selected his course of action at least in part for the purpose of causing its
adverse effect on an identifiable group[.]" Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir.
1988) (internal quotations, citations, and footnote omitted).

Classifications based on race,

alienage, or national origin "are subjected to strict scrutiny and will be sustained only if they are
suitably tailored to serve a compelling state interest." Cleburne, 473 U.S. at 440, 105 S. Ct. 3249
(citation omitted).
"[A] plaintiff suing a public official under [Section] 1983" fails to state a claim unless his
complaint "rests on more than conclusions alone." Schulte a v. Wood, 47 F.3d 1427, 1433 (5th
Cir. 1995) (en banc).

In the case sub judice, Plaintiff has made conclusory allegations of

discrimination based on his race and national origin, but has not alleged facts reflecting any
racial motivation on the part of the Defendants. He alleges merely that "it was made clear to
[Plaintiff], by word and by deed, that he was being discriminated [against]." See PI.' s Compi.
[1]

~

8. Plaintiff has not alleged facts that would establish that Korean professors were treated

differently than others similarly situated because of their race or national origin.

Plaintiff

similarly has provided no factual basis for the contention that Caucasian professors were given
preferential treatment.

For these reasons, Plaintiff has failed to allege the existence of

discrimination that would be subject to a "strict scrutiny" test. Thus, Plaintiff has not stated a
viable claim for violation of his equal protection rights under Section 1983.
For the foregoing reasons, Plaintiffs Section 1983 claims against the individual
Defendants in their personal capacities are barred under principles of qualified immunity, and

22

Plaintiffs remaining theories for relief under Section 1983 against the individually named
Defendants in their official capacities must be dismissed pursuant to Rule 12(b)(6), as those
theories fail to state a claim upon which relief may be granted.

3. Breach of Contract Claim - Qualified Immunity
Plaintiff's breach of contract claim against the individually named Defendants in their
personal capacities is barred under qualified immunity. "The Mississippi Supreme Court has
made clear that only the intentional torts listed in the MTCA preclude an individual's claim of
immunity." DePree v. Saunders, 588 F.3d 282,290 (5th Cir. 2009) (citing Duncan v. Chamblee,
757 So. 2d 946, 950 (Miss. 1999».
The MTCA provides in pertinent part:
An employee may be joined in an action against a governmental
entity in a representative capacity if the act or omission
complained of is one for which the governmental entity may be
liable, but no employee shall be held personally liable for acts or
omissions occurring within the course and scope of the employee's
duties. For the purposes of this chapter an employee shall not be
considered as acting within the course and scope of his
employment and a governmental entity shall not be liable or be
considered to have waived immunity for any conduct of its
employee if the employee's conduct constituted fraud, malice,
libel, slander, defamation or any criminal offense.
MISS. CODE ANN. § 11-46-7(2). The Plaintiffs breach of contract claim was directly related to
the individual Defendants' actions taken in their official capacities (Dr. Fogelsong as President
of MSU, Dr. Meredith as Commissioner of the Board, and Dr. Magee as a trustee of the Board);
the termination of the Plaintiff from his employment and subsequent decision to deny by
unanimous vote the Plaintiff's request for Board review were discretionary actions that involved
public policy; and these actions were within the scope of the individual Defendants' official
duties. Thus, the individual Defendants are also immune from suit on the breach of contract
claim under principles of qualified immunity.
23

4. Title VII Claim Against Individually Named Defendants
Finally, Defendants do not request dismissal of Plaintiffs Title VII claim against MSU
and the Board, but ask the Court to dismiss Plaintiff s Title VII claim to the extent it is asserted
against the individually named Defendants. The Court notes that to the extent Plaintiff's claims
may be characterized as employment discrimination claims brought against an employer under
Title VII, the claims are not barred by Eleventh Amendment immunity. See Perez, 307 F.3d at
326 n.1 ("we have long recognized that Congress has clearly abrogated the states' Eleventh
Amendment immunity in enacting Title VII"). But "relief under Title VII is only available
against an employer, not an individual supervisor or fellow employee." Umoren v. Plano Indep.
Sch. Dist., 457 F. App'x 422, 425 (5th Cir. 2012) (quoting Foley v. Univ. ofHouston Sys., 355
F.3d 333, 340 n.8 (5th Cir. 2003) (citing 42 U.S.C. § 2000e(b)'s definition of "employer": "a
person engaged in an industry affecting commerce who has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current or preceding calendar year,
and any agent of such a person"). In Foley, the Fifth Circuit found that the plaintiff's employer
was the university itself, as well as the university president, provost, and education division
chair. Foley, 355 F.3d at 340 n.8. In the case sub judice, the employer is MSU, as well as the
Board. Although the individually named Defendants in the case sub judice may be agents of the
employer, they do not have individual liability on any Title VII claim. See Grant v. Lone Star
Co., 21 F.3d 649,652-53 (5th Cir. 1994). The "agent" provision instead incorporates respondeat

superior liability into the statute. Id at 652 (internal citation omitted). Based on the foregoing,
Plaintiff's only remaining claim is the Title VII claim against MSU and the Board.

24

D. Conclusion
In sum, Defendants' motion to dismiss [44] is GRANTED and the following claims are
dismissed: (1) the Section 1983 claims; (2) the state law breach of contract claim; and (3) the
Title VII claim to the extent it is brought against the individually named Defendants. The
Plaintiffs Title VII claim against MSU and the Board remains viable. The individually named
Defendants should be dismissed as parties in this action, because no cause of action remains
against them.
Plaintiffs motion to compel [58] is DENIED as moot.

A separate order in accordance with this opinion shall issue this day.

THIS, the

~

day of October, 2012.

SENIOR JUDGE

25